Torts Cases and Commentary [8 ed.] 9780409342093

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Copyright © 2017. LexisNexis Butterworths. All rights reserved. Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:24:07.

Torts Cases and Commentary

Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Eighth Edition

Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:24:07.

Torts Cases and Commentary Eighth Edition Harold Luntz BA, LLB (Witwatersrand), BCL (Oxon), LLD (Melb), FAAL Emeritus Professor, Law School, University of Melbourne Inaugural Recipient of the John G Fleming Award for Torts Scholarship, 2000 Admitted as Barrister and Solicitor of the Supreme Court of Victoria

David Hambly LLB (Hons) (Melb), LLM (Harvard), FAAL Emeritus Professor and Visiting Fellow, College of Law, Australian National University Admitted as Barrister and Solicitor of the Supreme Courts of Victoria and the Australian Capital Territory

Kylie Burns BA, LLB (Hons) (UQ), LLM (QUT), PhD (Griffith) Senior Lecturer, Griffith Law School and Law Futures Centre, Griffith University Admitted as Solicitor of the Supreme Court of Queensland

Joachim Dietrich Copyright © 2017. LexisNexis Butterworths. All rights reserved.

LLB (Hons) (UQ), PhD (ANU) Professor, Faculty of Law, Bond University Admitted as Barrister of the Supreme Court of New South Wales

Neil Foster BA, LLB (UNSW), BTh (ACT), DipATh (Moore), LLM (Newc) Associate Professor, Newcastle Law School, University of Newcastle Admitted as Solicitor of the Supreme Court of New South Wales

Genevieve Grant BA, LLB (Hons) (Melb), GradCertAcPrac (Monash), PhD (Melb) Senior Lecturer, Faculty of Law, Monash University Admitted as Australian Lawyer and Officer of the Supreme Court of Victoria

Sirko Harder Doctor iuris (Tübingen), LLM (UQ), PhD (Aberdeen) Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:24:31.

Reader, School of Law, Politics and Sociology, University of Sussex

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LexisNexis Butterworths Australia 2017

Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:24:31.

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Preface

Since the first edition, by Harold Luntz, David Hambly and the late Robert Hayes, was published in 1980, the aim of the authors has been to provide a contemporary, critical account of the law of torts in Australia, in both its theory and its day-to-day operation. Our presentation of primary sources of the law — legislation and judicial decisions — seeks to equip readers to determine the current state of the law and to develop analytical skills. Our commentary seeks to promote an understanding of the operation of the law in its social setting and to encourage readers to assess its adequacy in meeting the needs of a rapidly changing society. Many of the changes in this edition reflect a significant structural change in the law of torts in recent years. The law of torts is a pre-eminent example of the evolution of the common law over many centuries, with only marginal legislative interventions; hence the choice of Cases and Commentary as the title of the first edition of this book. However, especially since the early years of this century, legislation affecting torts litigation has become pervasive. Cases frequently turn on issues of statutory interpretation. This development is at least partly due to a perceived need for legislation to influence, or respond to, rapidly changing social circumstances and values. Thus, for example, the ancient tort of trespass, as developed by the common law, gives paramount value to bodily integrity and the liberty of the individual, and the undisturbed possession of land and goods. It regulates countless encounters between citizens, and between individual citizens and public officials. In a legal system without a constitutional or statutory Bill of Rights, the tort of trespass provides a means of bringing issues of civil liberties before the courts, where the contest is whether a direct interference by a public officer with a citizen’s person, land or goods is authorised by law. Much recent legislation has augmented the authority of police and other public officers to interfere with a person’s physical integrity or liberty, and to enter premises without the occupier’s consent. The purpose is generally to increase the capacity of public officers to prevent or investigate crime. The effect is that, step by step, the interests of the individual traditionally protected by the law of trespass are restricted or overridden in order to protect or promote competing interests of the general community. This changing balance of interests requires scrutiny.

Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:25:00.

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In relation to the law of negligence, and particularly the law affecting compensation for personal injury, a critical assessment of the interaction of the common law and legislation is a major aspect of many chapters in this book. The statutory law relating to civil liability for personal injuries has been described as ‘a hodge-podge’ in which ‘no consistent thread of principle can be detected’: Landon v Ferguson (2005) 64 NSWLR 131 at [17] per Ipp JA (Hodgson and Santow JJA agreeing); New South Wales v Ball (2007) 69 NSWLR 463 at [9]– [10] per Ipp JA (McColl JA and Young CJ in Eq agreeing). Furthermore, in our opinion, the civil liability statutes that were enacted in the name of ‘tort reform’ in all Australian jurisdictions early in this century were based on false premises, and misdirected. Litigation requiring the courts to interpret and apply this legislation has proliferated, to little if any social advantage. In previous editions, we regretted the loss of opportunity presented in 1974 by the report of the National Rehabilitation and Compensation Committee of Inquiry (Chairman, A O Woodhouse) to introduce a single comprehensive accident compensation scheme in Australia. In recent years, the National Disability Insurance Scheme (NDIS) has been introduced to provide care and support services for those with permanent and significant disability and National Injury Insurance Schemes (NIIS) have been introduced for most catastrophic work and vehicle injuries in Australia. At the time of writing, the NDIS is not expected to be fully operational until 2020 and faces potential economic strain. Medical, criminal and general injuries remain uncovered by lifetime care and support schemes. We discuss the NDIS and NIIS schemes in Chapter 1, and we welcome the improvement of services and support they promise for those who suffer disability as a result of catastrophic injuries in Australia. However, the advent of the NDIS and NIIS is not a panacea for the many problems with the operation of tort law we discuss in the book. They have introduced yet another level of complexity into an already complex landscape. We hope that the critical tone of the commentary throughout the book will stimulate readers in their appraisal of legislation and judicial decisions, and in making their own assessment of the law. Harold Luntz has contributed to our consultations on the preparation of this edition. His colleagues gratefully acknowledge that the influence of his work as principal author of all of the previous editions is evident throughout this book, and particularly in Chapters 1–9. His colleagues dedicate this edition to Harold Luntz in celebration of his 80th birthday. In this edition, Kylie Burns and Genevieve Grant were primarily responsible for Chapter 1; Sirko Harder for Chapters 2–5, 7 and 8; Joachim Dietrich for Chapters 6, 14 and 16; David Hambly for Chapters 11–13; Neil Foster for Chapters 10, 15 and 17; Genevieve Grant for Chapter 9; and Kylie Burns for Chapter 18. We thank the staff of LexisNexis Butterworths, particularly commissioning editor Jocelyn Holmes and editor Georgia O’Neill, for their contribution to the production of this edition, and the continuation of a long and harmonious professional relationship. Harold Luntz

Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:25:00.

David Hambly Kylie Burns Joachim Dietrich Neil Foster Genevieve Grant Sirko Harder

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25 February 2017

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Table of Cases References are to paragraphs Case extracts are in bold

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A A v Hoare [2008] 1 AC 844 …. 11.4.28 — v — [2008] EWHC 1573 …. 11.4.28 — v Roman Catholic Archdiocese of Wellington [2008] NZCA 49 …. 17.1.5 — v State of New South Wales (2007) 230 CLR 500 …. 11.5.25, 11.5.27, 11.5.30, 11.5.33 A (Children) (Conjoined Twins: Surgical Separation), Re [2001] Fam 147 …. 13.3.4 A Woodley Osteopathic Services Pty Ltd v Transport Accident Commission (2013) 46 VR 29 …. 9.2.21 AAI Ltd v State Insurance Regulatory Authority of New South Wales [2016] NSWCA 368 …. 1.1.33 AAMI Ltd v Hain (2008) 50 MVR 58 …. 6.2.56, 6.2.58 — v — [2008] HCATrans 272 …. 6.2.56 Abalos v Australia Postal Commission (1990) 171 CLR 167 …. 3.3.12 ABC v West Heath 2000 Ltd [2015] EWHC 2687 …. 11.6.6 Abdallah v Newton (1998) 28 MVR 364 …. 6.2.19 Abela v Giew (1965) 65 SR (NSW) 485 …. 10.2.4 ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1 …. 16.1.14, 16.2.11, 16.2.17 Acatincai v Insurance Commission of Western Australia [2003] WASCA 39 …. 3.4.12 ACB v Thomson Medical Pte Ltd [2015] SGHC 9 …. 7.2.20 ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 …. 17.2.7 Acir v Frosster Pty Ltd [2009] VSC 454 …. 10.1.14 ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 …. 11.4.16

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ACQ Pty Ltd v Cook (2008) 72 NSWLR 318 …. 1.5.25, 6.3.10, 12.4.2, 15.1.6, 15.1.7, 15.1.8 — v — (2009) 237 CLR 656 …. 2.4.8, 6.3.10, 12.4.3, 15.1.6 Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 …. 6.3.23 Actrol Parts Pty Ltd (ACN 142 654 564) v Coppi [2015] VSC 758 …. 8.1.3 AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241 …. 15.2.1, 17.6.3 Adams v Kennedy (2000) 49 NSWLR 78 …. 13.5.6, 13.5.8C Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 …. 3.2.13C Adeels Palace v Moubarak (2009) Aust Torts Reports 81-997 …. 2.5.5 — v — (2009) 239 CLR 420 …. 3.1.1, 4.1.3, 4.1.7, 4.2.4, 4.2.11, 4.2.31, 7.5.19 Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 …. 17.6.1C Admiralty Commissioners v Owners of SS Volute [1922] 1 AC 129 …. 4.3.20 Adult Guardian v Langham [2006] 1 Qd R 1 …. 13.2.24C AFA Airconditioning Pty Ltd v Mendrecki (2008) 101 SASR 381; [2008] SASC 195 …. 10.1.16, 10.2.41 Agar v Hyde (2000) 201 CLR 552; 173 ALR 665; [2000] HCA 41 …. 1.7.2, 2.4.12C, 2.5.5, 3.1.51, 3.2.40 Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 …. 15.1.6 Ahrens Engineering Pty Ltd v Leroy Palmer & Associates (2010) 106 SASR 160 …. 18.2.6 Aintree University Hospitals NHS Trust v James [2014] AC 595 …. 13.2.31, 13.2.34, 13.2.35 Aircraft Technicians of Australia Pty Ltd v St Clair [2011] QCA 188 …. 17.5.6, 17.6.20 Aird v Grantham [1998] WASCA 254 …. 15.2.20 Airedale National Health Service Trust v Bland [1993] AC 789 …. 13.2.24C, 13.2.34 Aitken v Bedwell (1827) Mood & M 68 …. 11.5.19C Alagic v Callbar Pty Ltd (2000) 10 NTLR 86 …. 7.5.13 Albert v Lavin [1982] AC 546 …. 13.5.4 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 …. 3.2.20C, 7.9.2, 17.2.9, 17.6.8 Alcan Gove Pty Ltd v Zabic (2015) 325 ALR 1; 89 ALJR 845; [2015] HCA 33 …. 5.1.5C Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 …. 2.7.3 Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 …. 10.2.1 Aldi Foods Pty Ltd v Young [2016] NSWCA 109 …. 3.2.3, 3.4.4 Aleksoski v State Rail Authority of NSW (2000) 30 MVR 403 …. 15.2.1 Alex, Re (2009) 42 Fam LR 645 …. 13.2.47 Alex (hormonal treatment for gender dysphoria), Re (2004) 31 Fam LR 503 …. 13.2.47

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Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109 …. 8.1.1 Alford v Magee (1952) 85 CLR 437 …. 6.2.3 Alinta Gas Networks Pty Ltd v James (2007) Aust Torts Reports 81-900 …. 3.1.13 Al-Kandari v J R Brown & Co [1988] QB 665 …. 2.6.24 Allcorp Cleaning Services Pty Ltd v Fairweather [1998] NSWSC 291 …. 3.4.10 Allen v Chadwick (2014) 120 SASR 350 …. 6.2.37 — v — (2015) 236 ALR 505; [2015] HCA 47 …. 6.2.11, 6.2.12C, 6.2.32, 6.2.54, 6.2.55, 6.2.56, 6.2.58 — v Gulf Oil Refining Ltd [1981] AC 1001 …. 14.1.9, 14.2.5, 14.3.5, 14.3.11 — v Roughley (1955) 94 CLR 98 …. 12.3.4C — v Western Metals Resources Ltd [2001] TASSC 19 …. 10.1.14 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 …. 4.3.3 — v Kerr (2012) 83 NSWLR 302 …. 8.2.19 — v McGrath (2011) 9 DDCR 386 …. 8.2.7 — v Roads and Traffic Authority of New South Wales (2010) 57 MVR 80 …. 7.6.15, 7.6.16, 7.6.20, 14.6.5 — v Waterbrook at Yowie Bay Pty Ltd [2009] NSWCA 224 …. 16.3.17 Allianz Australia Ltd v Sim (2012) 10 DDCR 325 …. 4.2.14, 4.2.23, 4.2.26, 4.2.30 Allsop v Allsop (1860) 5 H & N 534 …. 7.2.1C Alma v Nakir [1966] 2 NSWR 396 …. 14.1.27 Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 …. 2.6.19 Amaca Pty Ltd v AB & P Constructions Pty Ltd (2007) 5 DDCR 543 …. 2.5.13, 2.7.4, 3.1.19 — v Banton (2007) 5 DDCR 314 …. 8.1.12, 8.2.7 — v Booth (2011) 246 CLR 36; 283 ALR 461 …. 4.1.6, 4.2.1C, 4.2.14, 4.2.15, 4.2.16, 4.2.17, 4.2.19, 4.2.20, 4.2.22, 4.2.26, 4.2.31 — v Cremer (2006) 66 NSWLR 400 …. 9.1.5 — v Ellis (2010) 240 CLR 111; 263 ALR 576; [2010] HCA 5 …. 4.2.12, 4.2.13C, 4.2.20, 4.2.22, 4.2.26, 4.2.28, 5.1.6 — v King (2011) 35 VR 280; [2011] VSCA 447 …. 4.1.6, 4.2.16, 4.2.20, 8.2.14, 8.2.56 — v New South Wales (2003) 199 ALR 596 …. 7.6.10 — v — (2004) Aust Torts Reports 81-749 …. 7.6.10 Amaca Pty Ltd (formerly James Hardie and Co Pty Ltd) v Hannell (2007) 34 WAR 109 …. 2.3.16 — v Moss [2007] WASCA 162 …. 2.3.16 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 …. 12.5.6

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AMP General Insurance Ltd v Roads & Traffic Authority of NSW (2001) Aust Torts Reports 81-619 …. 9.2.9 Anchor Products Ltd v Hedges (1966) 115 CLR 493 …. 3.4.9C Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 …. 7.8.3, 10.1.7, 10.2.45, 10.2.46, 10.2.47C, 10.2.49, 18.1.8 Anderson v Mackellar County Council (1968) 69 SR (NSW) 444; [1968] 2 NSWR 217 …. 10.2.6C, 10.2.31 Andreas v Selfridge & Co Ltd [1938] Ch 1; [1937] 3 All ER 255 …. 14.1.11C, 14.1.12, 14.1.18 Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955 …. 6.3.2, 7.5.12 Anikin v Sierra (2004) 211 ALR 621 …. 3.2.5, 6.2.51, 6.2.52 Anns v Merton London Borough Council [1978] AC 728 …. 2.2.13, 2.2.14, 2.2.15, 2.2.23, 7.7.20C Ansett Transport Industries (Operations) Pty Ltd v State of New South Wales (1998) 28 MVR 145 …. 7.7.7 Anthanasopoulos v Moseley (2001) 52 NSWLR 262 …. 8.3.12 Antrim Truck Centre Ltd v Ontario (Transportation) [2013] SCC 13; [2013] 1 SCR 594 …. 14.1.9, 14.1.12, 14.1.16, 14.3.14, 14.5.3 Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] WASCA 213 …. 16.1.12, 16.2.17 Apex Holiday Centre (Inc) v Lynn [2005] WASCA 58 …. 7.5.14 Appo v Stanley [2010] QSC 383 …. 3.2.39 Aquagenics Pty Ltd v Break O’Day Council (2010) 26 BCL 263 …. 18.2.21 AR Griffiths & Sons Pty Ltd v Richards [2000] 1 Qd R 116 …. 18.1.11 Armellin v Ljubic [2009] ACTCA 22 …. 11.3.11 Armstrong v Strain [1952] 1 KB 232 …. 17.4.4 Arnold v Teno [1978] 2 SCR 287 …. 7.7.24 Arnott v Choy (2010) 56 MVR 390 …. 4.3.46 Arpad, The [1934] P 189 …. 8.2.22 Arthur v Anker [1997] QB 564 …. 12.5.7 Arthur J S Hall & Co (a Firm) v Simons [2002] 1 AC 615 …. 2.6.16C, 2.6.19, 2.6.20 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 …. 8.2.10, 8.2.13C, 8.2.31 Ashby v White (1703) 2 Ld Raym 938 …. 16.2.4 Ashcroft v Mersey Health Authority [1983] 2 All ER 245 …. 7.9.16 Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398 …. 13.2.2 Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Torts Reports 81-636 ….

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7.5.18, 7.8.16 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 …. 3.2.27, 7.6.15 Astley v Austrust Ltd (1999) 197 CLR 1 …. 1.5.23, 6.2.4S, 6.2.5, 11.3.12, 16.2.17, 16.2.36 Atkins v Interprac Financial Planning Pty Ltd [2007] VSC 445 …. 18.2.21 Atkinson v Newcastle Waterworks Co (1877) 2 Ex D 441 …. 10.2.2C Atlas Tiles Ltd v Briers (1978) 144 CLR 202 …. 8.2.21 Attard v James Legal Pty Ltd (2010) 80 ACSR 585 …. 2.6.19 Attorney-General v Gas Light and Coke Co (1877) 7 Ch D 217 …. 14.3.9C — v Kowalski [2014] SASC 1 …. 10.1.2 — v PYA Quarries Ltd [1957] 2 QB 169 …. 14.6.1 Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 …. 2.6.41 — v Perpetual Trustee Co Ltd [1955] AC 457 …. 16.1.4, 16.3.1 Attorney-General’s Reference (No 6 of 1980) [1981] QB 715 …. 13.2.13 Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 …. 14.3.10 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 …. 1.5.18, 2.6.20, 2.6.25 Aufgang v Kozminsky Nominees Pty Ltd [2008] VSC 27 …. 17.2.4 Austin v Metropolitan Police Commissioner [2008] QB 660 …. 13.3.14 Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136 …. 18.2.10 Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 …. 3.1.4 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 …. 1.5.12, 11.6.3C, 12.2.17 Australian Capital Territory v Crowley (2012) 7 ACTLR 142 …. 2.6.34, 2.6.38 — v JT (2009) 232 FLR 322 …. 13.2.32 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 …. 8.1.8, 8.1.11 — v — [1969] 1 AC 590 …. 8.1.8 Australian Executor Trustees Ltd v Propell National Valuers (WA) Pty Ltd [2011] FCA 522 …. 16.2.28 Australian Iron & Steel Ltd v Krstevski (1973) 128 CLR 666 …. 3.1.42 Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 …. 7.3.3 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 …. 17.2.1 Australian Native Landscapes Pty Ltd v Minogue [2010] NSWCA 279 …. 18.2.10 Australian Racing Drivers Club Ltd v Metcalf (1961) 106 CLR 177 …. 6.3.20 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615 …. 2.5.2, 2.5.5, 2.5.7C, 7.1.5, 7.5.2, 7.5.3C, 7.5.10, 7.5.14, 17.6.12, 17.6.16C Australian Soccer Pools Pty Ltd v Gair (1989) 9 MVR 115 …. 6.3.31

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Avram v Gusakoski (2006) 31 WAR 400 …. 6.3.14, 6.3.25 Axiak v Ingram [2011] NSWCA 311 …. 1.4.21 — v — (2012) 82 NSWLR 36 …. 6.2.36, 6.2.41 Azzi v Volvo Car Australia Pty Ltd [2007] NSWSC 319 …. 16.3.10

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B B v An NHS Hospital Trust (2002) 2 FCR (UK) 1 …. 13.2.24C — v Attorney-General [2003] 4 All ER 833 …. 2.2.18 Baby D (No 2), Re (2011) 45 Fam LR 313 …. 13.2.47 Backwell v AAA [1997] 1 VR 182 …. 8.1.12 Bade v Rural City of Murray Bridge (2008) 100 SASR 31 …. 12.2.8, 12.5.6 — v — (2008) 101 SASR 302 …. 12.2.8, 12.5.6 Badenach v Calvert (2016) 331 ALR 48 …. 5.1.13, 16.2.24 Bader v Jelic [2011] NSWCA 255 …. 3.1.31 Bagnall v Schmidt (1980) 25 SASR 93 …. 3.4.14 Baguley v Kempsey Shire Council [2011] HCATrans 345 …. 3.1.45 Baiada Poultry Pty Ltd v R (2012) 286 ALR 421 …. 10.2.43 Bailey v Director-General, Dept of Natural Resources NSW [2015] NSWCA 318 …. 11.5.33 — v Nominal Defendant [2004] QCA 344 …. 4.3.14 Bain v Altoft [1967] Qd R 32 …. 13.2.13 Baker v Australian Asbestos Insulation Pty Ltd [1984] 3 NSWLR 595 …. 4.2.26 — v Bolton (1808) 1 Camp 493 …. 1.5.10, 9.1.1C, 9.2.1 — v Gilbert [2003] NSWCA 113 …. 7.5.10 — v Quantum Clothing Group Ltd [2011] 4 All ER 223; [2011] 1 WLR 1003 …. 3.1.71, 10.2.41, 10.2.43 — v Snell [1908] 2 KB 352 …. 15.2.23 — v Willoughby [1970] AC 467 …. 4.2.35, 4.2.36, 4.3.22, 4.3.24, 4.3.25 Bakker v Joppich (1980) 25 SASR 468 …. 18.2.6 Baldwin v Casella (1872) LR 7 Exch 325 …. 15.2.18C Bale v Seltsam Pty Ltd [1996] QCA 288 …. 2.3.7, 2.3.16 Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 …. 14.6.2 — v Ray (1873) LR 8 Ch App 467 …. 14.1.12 Ballard v Tomlinson (1885) 29 Ch D 115 …. 14.4.1C Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; 13 ALR 249 …. 11.5.11C, 11.5.13, 11.5.14

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Balven v Thurston [2015] NSWSC 1103 …. 12.5.3 Bamford v Turnley (1862) 3 B & S 66 …. 14.1.12, 14.1.13, 14.4.1C Bank of New Zealand v Deloitte Touche Tohmatsu [2009] 1 NZLR 53 …. 16.3.20 — v Greenwood [1984] 1 NZLR 525 …. 14.1.3C, 14.2.1 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; [2005] HCA 46 …. 14.2.5, 14.3.6 — v Zraika (2016) 74 MVR 505 …. 7.6.15, 7.6.16 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 …. 3.1.43, 7.8.10, 7.8.12 Barclay v Penberthy (2012) 246 CLR 258 …. 5.1.26, 7.3.10, 8.2.36, 9.2.1, 16.1.8C, 16.3.8, 16.3.15 Barisic v Devenport [1978] 2 NSWLR 111 …. 6.2.53, 18.2.13, 18.2.18 Barker v Corus UK Ltd [2006] 2 AC 572 …. 4.2.13C, 4.2.20, 5.1.5C — v R (1983) 153 CLR 338 …. 12.2.15C, 12.2.18, 12.2.19, 12.2.21, 12.2.23 — v — (1994) 127 ALR 280 …. 12.2.21 Barnes v Hay (1988) 12 NSWLR 337 …. 4.3.50 Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 …. 14.2.1 Barrett v Dubbo City Council [2006] NSWCA 65 …. 3.1.70 — v Enfield London Borough Council [2001] 2 AC 550 …. 7.7.22 Barton v Armstrong [1969] 2 NSWR 451 …. 11.4.13C, 11.4.15 Bartonshill Coal Co v McGuire (1858) 3 Macq 300 …. 17.4.2C Basely v Clarkson (1681) 3 Lev 37 …. 15.1.4 Bassett v Host [1982] 1 NSWLR 206 …. 3.4.6 Bates v Gillham (2016) 76 MVR 138 …. 2.1.1 Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 …. 14.1.27 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 …. 5.2.10 Battersby v Tottman (1985) 37 SASR 524 …. 7.9.7 Bau v State of Victoria [2009] VSCA 107 …. 7.10.11 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 …. 18.1.6, 18.2.5 — v Woolcombers Ltd (1963) 107 SJ 553 …. 3.2.10 Bayon v Bayon (2014) 69 MVR 36 …. 1.1.27 Bazley v Curry [1999] 2 SCR 534 …. 17.2.2C, 17.3.1, 17.3.16, 17.3.17, 17.3.18C BCS Strata Management Pty Ltd t/as Body Corporate Services v Robinson [2005] NSW ConvR 56-112 …. 3.4.12 Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307 …. 1.5.18, 11.5.34 Beals v Hayward [1960] NZLR 131 …. 11.3.5, 11.3.6C

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Beasley v Marshall (1977) 17 SASR 456 …. 6.2.34, 6.2.35 Beaumont v Cahir [2004] ACTSC 97 …. 8.3.7 Beavis v Apthorpe (1962) 80 WN (NSW) 852; [1963] NSWR 1176 …. 4.3.40, 4.3.57 Beck v Mercantile Mutual Insurance Co [1961] SASR 311 …. 6.3.9 Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 …. 11.5.25, 11.5.31, 11.5.32, 17.6.11 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583 …. 15.2.3C, 15.2.23 Bell v Pitt [1956] Tas SR 161 …. 14.3.13C — v Western Australia (2004) 28 WAR 555 …. 7.7.16 Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 …. 16.2.20 Bellgrove v Eldridge (1954) 90 CLR 613 …. 8.3.5 Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 …. 12.4.8, 12.5.4 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 …. 4.2.20, 4.2.26 Benham v Gambling [1941] AC 157 …. 8.2.58C, 8.2.61 Benjamin v Currie [1958] VR 259 …. 9.2.11 Bennett v Elysium Noosa Pty Ltd (in liq) [2012] FCA 211 …. 18.2.21 — v Minister of Community Welfare (1992) 176 CLR 408 …. 4.2.17 — v Police [2016] SASC 139 …. 12.1.5, 12.2.13, 13.5.6 — v Tugwell [1971] 2 QB 267 …. 6.3.4C, 6.3.26 Benning v Wong (1969) 122 CLR 249; [1969] HCA 58 …. 14.1.7, 14.3.6, 14.3.11, 15.1.1 Bentley v Furlan [1999] 3 VR 63 …. 1.4.23 Berengo v Amaca Pty Ltd [2010] VSC 496 …. 4.2.26 Bernadette, Re (2011) 45 Fam LR 248 …. 13.2.47 Bernard v Attorney-General of Jamaica [2005] IRLR 398 …. 15.1.2, 17.1.1 Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 …. 12.4.1C, 12.4.2, 12.4.6 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 …. 1.1.32 Berryman v Joslyn [2004] NSWCA 121 …. 6.2.7C — v — (No 2) [2004] NSWCA 239 …. 6.2.7C Besozzi v Harris (1858) 1 F & F 92 …. 15.2.18C Best v Samuel Fox & Co Ltd [1952] AC 716 …. 1.5.20, 16.3.1 Betts v Whittingslowe (1945) 71 CLR 637 …. 4.2.17, 10.2.53 Bevilacqua v Altenkirk (2004) 35 BCLR (4th) 281 …. 7.2.21 Bevillesta Pty Ltd v Liberty International Insurance Co (2009) Aust Torts Reports 81-995 …. 17.6.12

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BHP Billiton Ltd v Parker (2012) 113 SASR 206 …. 4.2.26 BI (Contracting) Pty Ltd v Strikwerda (2005) 3 DDCR 149 …. 9.1.7 Bici v Ministry of Defence [2004] EWHC 786 …. 2.6.42, 2.6.45 Biddle v Victoria [2015] VSC 275 …. 13.5.6, 13.5.8C Biggar v McLeod [1978] 2 NZLR 9 …. 2.6.22 Biggs v George [2016] NSWCA 113 …. 7.9.6 Billy Higgs & Sons Ltd v Baddeley [1950] NZLR 605 …. 3.2.17 Birch v Thomas [1972] 1 All ER 905 …. 6.3.26 Biscoe v Great Eastern Ry Co (1873) LR 16 Eq 636 …. 14.3.11 Bitumen & Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 …. 18.2.6, 18.2.7 Bird v Jones (1845) 7 QB 742 …. 11.5.5, 11.5.11C Black Range Tin v Shoobert [1973] WAR 131 …. 17.3.4 Blacker v Lake & Elliot Ltd (1912) 107 LT 533 …. 2.2.7C — v Waters (1928) 28 SR (NSW) 406 …. 11.3.6C, 11.3.11, 11.3.12 Blackwater v Plint [2005] 3 SCR 3 …. 17.2.13 Blake v J R Perry Nominees Pty Ltd [2012] VSCA 122 …. 17.3.7, 17.3.8, 17.3.11, 17.3.15 Bliss v Hall (1838) 4 Bing NC 183 …. 14.3.16C Blomme v Sutton (1989) 52 SASR 576 …. 1.5.10 Blundell v Musgrave (1956) 96 CLR 73 …. 8.2.29C, 8.2.30 Blunn v Cleaver (1993) 47 FCR 111 …. 1.1.20 Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 …. 3.1.7, 3.2.1, 4.3.27C Bocardo SA v Star Energy UK Onshore Ltd [2010] Ch 100 …. 12.4.1C — v Star Energy UK Onshore Ltd [2010] UKSC 35; [2010] 3 All ER 975 …. 12.4.1C — v — [2011] 1 AC 380 …. 12.4.1C Body Corporate 207624 v North Shore City Council [2012] NZSC 83 …. 16.3.19 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 …. 3.2.20C, 3.2.24, 3.2.26, 3.2.27 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 …. 11.5.3, 13.5.10 Bolton v Stone [1951] AC 850 …. 2.3.2C, 3.1.25C, 3.1.29, 3.1.51, 3.1.69, 4.3.32, 7.7.5, 7.7.33, 14.3.16C Bolton Gems Pty Ltd v Gregoire [1996] 39 AILR 5-063 …. 18.1.11 Bonic v Fieldair (Deniliquin) Pty Ltd [1999] NSWSC 636 …. 14.2.1 Bonnington Castings Ltd v Wardlaw [1956] AC 613 …. 4.2.1C, 4.2.13C, 4.2.28, 4.2.30 Booksan Pty Ltd v Wehbe (2006) Aust Torts Reports 81-830 …. 10.2.55 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 …. 1.4.8

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Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 …. 6.2.39, 6.2.51 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 …. 18.1.10 Boroondara City Council v Cattanach (2004) 10 VR 109 …. 7.6.19 Bourchier v Victorian Railways Commissioners [1910] VLR 385 …. 14.3.10 Bourhill v Young [1943] AC 92 …. 2.3.15, 7.2.5, 7.10.2, 7.10.4C Bourk v Power Serve Pty Ltd [2008] QCA 225 …. 10.1.14 Bourke v Butterfield & Lewis Ltd (1926) 38 CLR 354 …. 10.2.54 Bouronicos v Nylex Corp Ltd [1975] VR 120 …. 10.2.39 Bowater v Rowley Regis Corporation [1944] KB 476 …. 6.3.17 Bowditch v McEwan (2002) 36 MVR 235 …. 7.2.16 Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 …. 2.4.10 Bowling v Weinert [1978] 2 NSWLR 282 …. 10.2.4 Boyd v SGIO [1978] Qd R 195 …. 4.3.47 Boyle v Kodak Ltd [1969] 1 WLR 661 …. 10.2.45, 10.2.47C Bracks v Smyth-Kirk (2009) 263 ALR 522 …. 18.2.11 —v — [2010] HCA Trans 145 …. 18.2.11 Bradburn v Great Western Railway Co (1874) LR 10 Exch 1 …. 8.2.52 Bradbury v Henshall (1987) Aust Torts Reports 80-148 …. 6.2.22 Bradford Corp v Pickles [1895] AC 587 …. 1.5.19, 1.5.20, 14.1.27 Bradshaw v Griffiths [2016] QCA 20 …. 12.4.9 — v McEwans Pty Ltd (1951) 217 ALR 1 …. 3.4.2C Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 …. 18.2.2, 18.2.9 Brancato v Australian Telecommunications Commission (1986) 7 NSWLR 30 …. 10.2.47C Brand v Bardon (NSW CA, Handley, Powell and Stein JJA, 18 July 1997, unreported) …. 7.3.7 Brannock v Jetstar Airways Pty Ltd [2010] QCA 218 …. 15.1.6 Bryan v Maloney (1995) 182 CLR 609 …. 16.1.3, 16.2.17, 16.3.11, 16.3.12C, 16.3.15, 16.3.17, 16.3.18, 16.3.19 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 …. 12.2.8, 12.5.4 Breavington v Godleman (1988) 169 CLR 41 …. 1.1.31 Breen v Williams (1996) 186 CLR 71 …. 5.1.17, 13.2.19 Bresatz v Przibilla (1962) 108 CLR 541 …. 8.2.42 Brewer v Incorporated Nominal Defendant [1980] VR 469 …. 1.1.27, 1.4.25 Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436 …. 14.1.3C

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Briggs v Briggs [2016] EWCOP 53 …. 13.2.35 — v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 …. 4.2.27 Bright v Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 …. 6.3.28 Brighton Und Refern Plaster Pty Ltd v Boardman (2006) 225 CLR 402 …. 1.1.32 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; [2009] WASC 229 …. 13.2.14, 13.2.24C, 13.2.25, 13.2.26 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 4.2.1C Brinsmead v Harrison (1872) LR 7 CP 547 …. 18.1.1, 18.2.1 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 …. 5.2.4C, 5.2.6 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 …. 6.3.5 British American Tobacco Exports BV v Trojan Trading Co Pty Ltd [2010] VSC 572 …. 10.1.2 British Columbia Electric Railway Co Ltd v Gentile [1914] AC 1034 …. 9.2.8 British Fame (Owners) v Macgregor (Owners) [1943] AC 197 …. 6.2.43C Broadhurst v Millman [1976] VR 208 …. 6.2.48 Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports 80-059 …. 14.1.27 Brodie v Singleton Shire Council (2001) 206 CLR 512 …. 1.1.21, 2.1.4, 7.1.1, 7.1.2, 7.1.3, 7.1.4, 7.1.5, 7.2.18C, 7.5.15, 7.6.2, 7.6.6, 7.6.8, 7.6.9, 7.6.18, 7.6.19, 7.10.4C, 10.1.7, 10.2.11, 14.6.3, 14.6.5, 17.6.16C Broken Hill City Council v Tiziani (1997) 93 LGERA 113 …. 8.3.11, 14.5.3 Broken Hill Proprietary Co Ltd v Waugh (1988) 14 NSWLR 360 …. 4.2.26 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 313 ALR 408; [2014] HCA 36 …. 16.1.8C, 16.3.8, 16.3.15, 16.3.16 Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 …. 2.6.37 Broom v Morgan [1953] 1 QB 597 …. 17.4.2C, 17.4.6 Broome v Prince Edward Island (Reference re) [2010] 1 SCR 360 …. 17.3.20 Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Reports 81-791 …. 7.5.18 Brown v G J Coles & Co Ltd (1985) 8 FCR 304 …. 13.5.6 — v Hewson [2015] NSWCA 393 …. 3.4.4, 4.2.20 — v Kendall 6 Cush (60 Mass) 292 (1850) …. 1.2.8 — v Maurice Blackburn Cashman (2013) 45 VR 22 …. 7.10.11 — v Petranker (1991) 22 NSWLR 717 …. 6.3.28 Browning v Bitupave Ltd t/a Boral Asphalt (2008) 49 MVR 287 …. 17.6.17 — v War Office [1963] 1 QB 750 …. 8.2.46

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Brunner v Williams (1975) 73 LGR 266 …. 12.2.9C Brunsden v Humphrey (1884) 14 QBD 141 …. 1.1.29, 5.1.16C BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221 …. 16.2.16 Buckle v Bayswater Road Board (1936) 57 CLR 259 …. 7.6.18 Buckley & Toronto Transportation Commission v Smith Transport Ltd [1946] 4 DLR 721 …. 3.2.13C Buckpitt v Oates [1968] 1 All ER 1145 …. 6.3.26 Bugge v Brown (1919) 26 CLR 110 …. 17.2.2C, 17.3.2C, 17.3.4 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 …. 3.3.6C Building Insurers’ Guarantee Corporation v The Owners — Strata Plan No 57504 [2010] NSWCA 23 …. 16.3.17 Bujdoso v State of New South Wales [2006] NSWSC 896 …. 17.4.11 Bull v Attorney-General (NSW) (1913) 17 CLR 370 …. 10.2.14 Bulsey v Queensland [2015] QCA 187 …. 11.4.5, 13.5.5 Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 …. 8.1.5 Bunyan v Jordan (1937) 57 CLR 1 …. 7.2.1C, 11.6.2C BUPA Australia Pty Ltd v Shaw [2013] VSC 507 …. 8.2.53 Burchett v Commissioner for Railways [1958] SR (NSW) 366 …. 14.2.8 Burk v Commonwealth of Australia (2008) Aust Torts Reports 81-935 …. 7.10.8 Burke v Forbes SC (1987) Aust Torts Reports 80-122 …. 16.2.16 — v State of New South Wales [2004] NSWSC 725 …. 7.10.16 Burnett v British Waterways Board [1973] 2 All ER 631 …. 6.3.30 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 …. 2.2.8, 2.6.6, 3.1.37, 7.1.4, 15.1.2, 15.1.5, 17.1.1, 17.6.1C Burton v Davies [1953] St R Qd 26 …. 11.5.9 — v Winters [1993] 3 All ER 847 …. 14.5.1 Bus v Sydney County Council (1989) 167 CLR 78 …. 2.4.9, 3.1.31, 6.2.24 Butler v Modrak (1983) 49 ACTR 3 …. 17.1.4, 17.1.7 BWV, Re; Ex parte Gardner (2003) 7 VR 487 …. 13.2.24C Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 …. 10.1.6, 10.1.7, 10.1.9, 10.2.2C, 10.2.5 — v Kinematograph Renters Society Ltd [1958] 2 All ER 579; [1958] 1 WLR 762 …. 12.2.15C, 12.2.20, 12.2.21 Bywell Castle (1879) 4 PD 219 …. 6.2.17, 6.2.18

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C v Holland [2012] 3 NZLR 672 …. 11.6.12 C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 …. 6.3.2, 7.5.12 Cabassi v Vila (1940) 64 CLR 130; [1941] ALR 33; [1940] HCA 41 …. 1.5.14C, 1.5.16 Cadoks Pty Ltd v Wallace Westley & Vigar Pty Ltd (2000) 2 VR 569 …. 16.2.34 Caftor Pty Ltd t/as Mooseheads Bar Cafe v Kook (2007) Aust Torts Reports 81-914 …. 7.5.14 Cairns and Hinterland Hospital and Health Service v JT by JT’s Guardian [2015] 2 Qd R 348 …. 13.2.35 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606; [2009] HCA 47 …. 1.1.25, 2.2.20, 2.5.5, 2.6.3, 2.6.11C, 3.3.14, 7.1.1, 7.1.4 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 …. 2.3.5, 2.7.3, 3.1.59 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 …. 7.5.13, 7.5.14, 17.6.12 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 …. 16.1.7, 16.1.8C, 16.2.13, 16.2.21C, 16.3.1, 16.3.2, 16.3.4C, 16.3.12C Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 …. 2.2.23, 2.3.16, 2.5.13, 2.6.10 Calveley v Chief Constable of Merseyside [1989] AC 1228 …. 10.2.12 Calvert v Badenach [2015] TASFC 8 …. 16.2.24 — v Mayne Nickless Ltd (No 1) [2006] 1 Qd R 106 …. 3.2.8, 10.1.14 — v Stollznow [1982] 1 NSWLR 175 …. 7.5.13 Cambridge v Anastasopoulos [2012] NSWCA 405 …. 4.2.33 Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264; [1994] 1 All ER 53 …. 14.2.1, 14.4.1C, 15.1.2 Cameron v Commissioner for Railways [1964] Qd R 480 …. 7.7.19 Campbell v Gordon (Scotland) (2016) SLT 887 …. 10.2.10 — v Mirror Group Newspapers Ltd [2004] 2 AC 457 …. 11.6.3C — v Samuels (1980) 23 SASR 389 …. 11.4.11 Campbelltown City Council v Mackay (1989) 15 NSWLR 501 …. 8.3.11 Campbelltown Golf Club v Winton [1998] NSWSC 257 …. 14.5.5 Candler v Crane, Christmas & Co [1951] 2 KB 164 …. 16.2.4, 16.2.5C, 16.2.28 Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd (1985) 3 NSWLR 159; [1986] AC 1 …. 16.1.8C, 16.3.2, 16.3.3 Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81-246 …. 4.3.17, 8.1.21, 13.2.10 Caparo Industries plc v Dickman [1990] 2 AC 605 …. 2.2.14, 2.2.17C, 2.2.18, 2.2.23, 2.6.37, 16.1.10, 16.2.13, 16.2.26, 16.2.28 Capital & Counties plc v Hampshire County Council [1997] QB 1004 …. 7.6.8

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Capital Motors Ltd v Beecham [1975] 1 NZLR 576 …. 16.2.17 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 …. 10.2.14 Carangelo v New South Wales [2016] NSWCA 126 …. 4.2.11, 4.2.20, 5.1.20, 5.1.21 Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874 …. 6.3.2, 6.3.12C Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd (2004) ATPR 42-014 …. 7.3.4 Carmarthenshire CC v Lewis [1955] AC 549 …. 7.7.33, 7.7.34 Carnegie v Victoria (Vic FC, 14 September 1989, unreported) …. 11.5.1 Carrier v Bonham [2000] QCA 375 …. 3.2.14 — v — [2002] 1 Qd R 474; [2001] QCA 234 …. 1.2.8, 1.4.25, 3.2.13C, 11.6.2C Carroll v Lewitzke (1991) 56 SASR 18 …. 6.2.58 — v Purcell (1961) 107 CLR 73 …. 9.2.22 Carstairs v Taylor (1871) LR 6 Ex 217 …. 14.3.2C, 14.3.3 Carter v Walker (2010) 32 VR 1 …. 11.2.4, 13.5.8C Cartledge v E Jopling & Sons Ltd [1963] AC 758 …. 5.2.2, 5.2.7 Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; 24 ALR 97 …. 14.6.4C Casalino v Insurance Australia Ltd (2007) Aust Torts Reports 81-886 …. 1.1.27, 1.7.5 Casey v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 …. 15.1.6 Cashmere Pacific Ltd v New Zealand Dairy Board [1996] 1 NZLR 218 …. 10.2.12 Casley v Commonwealth of Australia (1980) 30 ALR 38 …. 11.5.16 Cassell & Co Ltd v Broome [1972] AC 1027 …. 8.1.13, 8.1.14C Cassidy v Ministry of Health [1951] 2 KB 343 …. 17.4.6, 17.6.8, 17.6.19 Castle v St Augustine’s Links Ltd (1922) 38 TLR 615 …. 14.6.6 Castlereagh Motels Ltd v Davies-Roe (1966) 67 SR (NSW) 279 …. 10.2.10 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 …. 6.2.26, 6.2.27, 10.2.54 Caterson v Commissioner for Railways [1970] 3 NSWR 388 …. 2.3.8 — v Commissioner for Railways (NSW) (1973) 128 CLR 99; [1972–73] ALR 1393 …. 2.3.8, 6.2.16C Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131; [2003] HCA 38 …. 1.7.6, 4.3.29, 5.1.25, 7.2.8, 7.2.9C, 7.2.18C, 7.9.1, 8.2.48 Cattle v Stockton Waterworks Co (1875) LR 10 QB 453 …. 16.1.4, 16.3.1 Cavalier v Pope [1906] AC 428 …. 2.5.6, 2.5.7C, 7.5.6 Caven v Women’s and Children’s Health (2007) 15 VR 447 …. 7.2.19 Cayzer, Irvine & Co v Carron Co 9 App Cas 873 (1884) …. 6.2.2 Cekan v Haines (1990) 21 NSWLR 296 …. 2.6.33C, 3.1.44, 3.1.70, 3.2.7, 7.6.6

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Central Darling Shire Council v Greeney [2015] NSWCA 51 …. 7.8.2 Central Goldfields Shire v Haley (2009) 24 VR 378 …. 2.5.4, 2.5.11, 7.5.6, 7.6.20 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 …. 17.2.12, 17.3.8 Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 …. 3.3.9 CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 …. 1.5.27 Chadwick v Bridge (1951) 83 CLR 314 …. 1.5.24, 1.5.25 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 …. 13.2.4 Chamberlains v Lai [2007] 2 NZLR 7 …. 2.6.20 Challen v McLeod Country Golf Club (2004) Aust Torts Reports 81-760 …. 14.2.16 Chan Yee Kin v Minister for Immigration (1991) 103 ALR 499 …. 10.2.12 Chance v BP Chemicals Inc 670 NE 2d 985 (1996) …. 12.4.1C Chand v Zurich Australian Insurance Ltd [2013] NSWSC 102 …. 8.3.10 Chapel Road Pty Ltd v ASIC (2006) 203 FLR 322 …. 11.5.34 Chaplin v Dunstan Ltd [1938] SASR 245 …. 17.3.10 — v Hicks [1911] 2 KB 786 …. 5.1.16C Chapman v Hearse (1961) 106 CLR 112; [1962] ALR 379 …. 2.3.2C, 2.3.9, 4.3.2, 4.3.20, 4.3.36, 4.3.53C, 18.2.14C Chappel v Hart (1998) 195 CLR 232 …. 3.1.58, 4.1.6, 4.2.9, 4.2.23, 4.3.7, 4.3.18, 7.9.3 Charafeddine v Morgan (2014) 66 MVR 232 …. 1.1.29 Chasemore v Richards (1859) 7 HLC 349 …. 1.5.19 Chatterton v Gerson [1981] QB 432 …. 3.2.20C, 13.2.15, 13.2.21 Chester v Afshar [2005] 1 AC 134 …. 3.1.58 — v Waverley Municipal Council (1939) 62 CLR 1 …. 2.3.3, 2.3.14, 2.6.3, 4.3.15, 4.3.44, 7.2.5, 7.10.2, 7.10.10 Children, Youth & Women’s Health Services Inc v YJL (2010) 107 SASR 343 …. 13.2.45 Childs v Desormeaux [2006] 1 SCR 643 …. 2.2.15 Chin v Venning (1975) 49 ALJR 378 …. 11.3.10 Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 …. 4.3.12, 7.7.17 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 …. 10.2.10 Christie v Davey [1893] 1 Ch 316 …. 14.1.19, 14.1.22C — v Leachinsky [1947] AC 573 …. 13.5.6, 13.5.8C Christopher v Motor Vessel ‘Fiji Gas’ (1993) Aust Torts Reports 81-202 …. 16.3.2, 16.3.10 Christopherson v Bare (1848) 11 QB 473 …. 13.2.1, 13.2.4 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 …. 10.2.43 Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80-

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101 …. 12.2.16 CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 …. 10.2.47C Cirjak v Todd (1977) 17 SASR 316 …. 6.2.34 City Elevator Services Pty Ltd v Burrows [2004] NSWCA 26 …. 3.4.12 City of Richmond v Scantelbury [1991] 2 VR 38 …. 14.2.14, 14.5.2 City of Stirling v Tremeer (2006) 32 WAR 155 …. 4.2.17 Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170 …. 14.1.12 Clark v Stingel [2007] VSCA 292 …. 11.4.28 — v Tieman Industries Pty Ltd [2011] VSC 500 …. 4.3.42, 4.3.44 Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 …. 7.5.6 Clavel v Savage [2015] NSWCA 61 …. 11.5.33 Clay v A J Crump & Sons Ltd [1964] 1 QB 533 …. 16.2.13, 16.2.14 Clegg v Dearden (1848) 12 QB 576 …. 12.2.8 CLT v Connon (2000) 77 SASR 449 …. 2.2.16 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 …. 7.5.18 Coates v GIO of NSW (1995) 36 NSWLR 1 …. 7.10.7 Cockatoo Dockyard Pty Ltd v Browne (2001) 21 NSWCCR 544 …. 4.3.58 Coco v R (1994) 179 CLR 427 …. 12.1.5, 13.5.10 Coffs Harbour City Council v McLeod [2016] NSWCA 94 …. 7.6.15 Coggs v Bernard (1703) 2 Ld Raym 909 …. 2.2.1 Cohen v City of Perth (2000) 112 LGERA 234 …. 14.1.7, 14.5.3, 14.5.8 Colavon Pty Ltd (t/as Thormans Transport) v Bellingen Shire Council (2008) 51 MVR 549 …. 7.6.20 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 …. 1.1.25, 2.5.3, 2.6.11C, 2.6.13, 2.7.4 — v Turner (1704) 6 Mod 149 …. 11.4.7C Coley v Nominal Defendant [2004] 1 Qd R 239 …. 1.1.27 Colonial Mutual Life Assurance Society Ltd v Macdonald [1931] AD 412 …. 17.5.4 Coleman v Barrat [2004] NSWCA 27 …. 15.2.27 Coles Group Property Developments Ltd v Stankovic [2016] NSWSC 852 …. 12.2.8, 12.5.4 Coles Myer Ltd v Webster (2009) Aust Torts Reports 82-033; [2009] NSWCA 299 …. 11.5.19C Coles-Smith v Smith [1965] Qd R 494 …. 12.3.3 Coles Supermarkets Australia Pty Ltd v Tormey (2009) Aust Torts Reports 82-014 …. 7.5.19

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Collett v Hutchins [1964] Qd R 495 …. 7.7.9 Collins v Carey [2002] QSC 398 …. 15.2.11C — v — (2003) Aust Torts Reports 81-709 …. 15.2.11C — v Clarence Valley Council (2015) 91 NSWLR 128 …. 7.6.15, 7.6.16 — v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172 …. 11.4.7C, 11.4.8, 11.4.9, 13.2.6, 13.5.1 Coloca v BP Australia Ltd [1992] 2 VR 441 …. 8.1.12 Colonel Clints Bargain Stores Pty Ltd (t/a Clints Crazy Bargains) v Molero (1997) Aust Torts Reports 81-407 …. 7.8.13 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 …. 17.2.2C, 17.3.4, 17.5.1, 17.5.2C, 17.5.4, 17.5.5, 17.5.6 Colour Quest Ltd v Total Downstream UK Plc [2009] 2 Lloyd’s Rep 1 …. 15.1.2, 17.2.12 Comcare v Fiedler (2001) 115 FCR 328 …. 1.4.7 — v PVYW (2013) 250 CLR 246 …. 1.4.1, 1.4.4 Commercial Banking Co of Sydney Ltd v RH Brown & Co (1972) 126 CLR 337 …. 16.2.1 Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 …. 11.5.29 Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 …. 4.2.23 Commissioner for Railways v Halley (1978) 20 ALR 409 …. 3.2.37 — v Ruprecht (1979) 142 CLR 563 …. 6.2.25C, 6.2.26 Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 …. 7.5.3C Commissioner of Main Roads v Jones (2005) 215 ALR 418 …. 4.2.8 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 …. 1.5.22, 1.5.25 Commissioner of Railways (WA) v Stewart (1936) 56 CLR 520 …. 5.1.2, 5.2.1 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 …. 5.1.13 — v Connell (1986) 5 NSWLR 218 …. 17.3.6, 17.3.11, 17.4.5 — v Cornwell (2007) 229 CLR 519 …. 5.2.8, 5.2.9 — v Griffiths (2007) 245 ALR 172 …. 17.4.9 — v Introvigne (1982) 150 CLR 258 …. 3.1.31, 17.6.1C, 17.6.5, 17.6.6, 17.6.9, 17.6.10, 17.6.16C — v Jenner (1989) 9 MVR 387 …. 2.6.43 — v McLean (1996) 41 NSWLR 389 …. 4.3.40, 4.3.53C — v Murray (1988) Aust Torts Reports 80-20 …. 14.5.3 — v Smith [2005] NSWCA 478 …. 7.10.8 — v Verwayen (1990) 170 CLR 394 …. 2.6.43 Commonwealth Bank of Australia v Witherow [2006] VSCA 45 …. 18.2.21

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Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 …. 11.5.28 Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268 …. 1.5.16 Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 …. 10.1.16 Concrete Constructions (NSW) Pty Ltd v Builders Labourers’ Federation (1988) 83 ALR 385 …. 12.3.3 — v Nelson (1990) 169 CLR 594 …. 1.4.6, 16.1.14 Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815 …. 7.5.12 Consort Express Lines Ltd v J-Mac Pty Ltd (No 2) (2006) 232 ALR 341 …. 4.2.35 Conway v George Wimpey Ltd [1951] 2 KB 266 …. 17.4.2C — v O’Brien 111 F 2d 611 (1940) …. 3.1.14 Cook v Cook (1986) 162 CLR 376 …. 3.2.8, 3.2.32C, 3.2.36 — v Forbes (1867) LR 5 Eq 166 …. 14.1.18 — v Lewis [1951] SCR 830 …. 4.2.25, 4.2.31 Cooper v Hobart [2001] 3 SCR 537 …. 2.2.23, 16.3.20 — v Laidler [1903] 2 Ch 337 …. 12.4.6 Co-operative Group (CWS) Ltd v Pritchard [2012] QB 320 …. 8.1.22, 13.4.5 Coote v A R and G R Padgett Pty Ltd (2004) Aust Torts Reports 81-758 …. 10.1.14 Cope v Sharpe (No 2) [1912] 1 KB 496 …. 13.3.11C Corbett v Hill (1870) LR 9 R 671 …. 12.4.1C — v Pallas (1995) Aust Torts Reports 81-329; 86 LGERA 312 …. 14.2.1, 14.3.13C, 14.5.2 Corby Group Litigation, Re [2009] EWHC 1944 …. 14.6.3 Corby Group Litigation, Re [2009] QB 335 …. 14.1.7, 14.6.3 Cortis v Baker [1968] SASR 367 …. 6.2.18 Costello v Allstaff Industrial Personnel (SA) Pty Ltd & Bridgestone TG Australia Pty Ltd [2004] SAIRComm 13 …. 17.2.14 Cottee v Franklins Self-serve Pty Ltd [1997] 1 Qd R 469 …. 7.5.5 Cotton v Commissioner for Road Transport & Tramways (1942) 43 SR (NSW) 66 …. 6.2.30C Couch v Attorney-General [2008] 3 NZLR 725 …. 2.4.14 Coultas v Victorian Railways Commissioners (1886) 12 VLR 895 …. 7.10.1, 7.10.2 Council of the City of Greater Taree v Wells (2010) 174 LGERA 208 …. 3.1.15, 6.2.11, 7.5.12 Council of the Municipality of Woollahra v Sved (1996) 40 NSWLR 101 …. 16.3.13 Courtney v Medtel Pty Ltd [2001] FCA 1037 …. 7.4.2C — v — (2003) 126 FCR 219; [2003] FCA 36 …. 7.4.2C

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— v — (No 5) (2004) 212 ALR 311; [2004] FCA 1406 …. 7.4.2C — v — (No 6) [2004] FCA 1598 …. 7.4.2C Coventry v Lawrence [2014] AC 822 …. 14.1.1, 14.1.12, 14.1.16, 14.3.5, 14.3.18, 14.5.4, 14.5.7 — v — (No 2) [2015] 1 AC 106 …. 14.2.4 Coward v Baddeley (1859) 4 H & N 478 …. 11.4.7C Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 …. 11.3.14, 11.5.3, 11.5.16, 17.4.5 — v Madden (1990) 11 MVR 193 …. 7.7.14 — v — (1991) 15 MVR 114 …. 7.7.14 — v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 …. 1.5.22, 12.2.4, 12.2.5, 12.2.6, 12.5.5 Cowland v Telkesi [2000] SASC 156 …. 9.2.22 Cox v Ministry of Justice [2016] AC 660 …. 17.2.13, 17.5.9 — v State of New South Wales (2007) Aust Torts Reports 81-888 …. 7.10.6 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 …. 8.1.4 Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 …. 2.6.33C Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] 1 AC 366 …. 11.5.26, 11.5.35 Creedon v Measey Investments Pty Ltd (1988) 91 FLR 318 …. 17.5.11 Cregan Hotel Management Pty Ltd v Hadaway [2011] NSWCA 338 …. 2.5.3, 7.5.19 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 …. 2.4.12C, 7.6.2, 7.6.3C, 7.6.4, 7.6.5, 7.6.6, 7.6.10 Croucher v Cachia (2016) Aust Torts Reports 82-279 …. 11.3.12, 11.4.5 — v — [2016] NSWCA 132 …. 7.11.7 Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659 …. 5.1.14 Cruttendon v Brenock [1949] VLR 366 …. 15.2.12 CSL Australia Pty Ltd v Formosa (2009) 261 ALR 441 …. 7.5.10 CSR Ltd v Amaca Pty Ltd (2009) 9 DDCR 221 …. 2.3.7, 2.3.16 — v Amaca Pty Ltd (under NSW administered winding up) [2016] VSCA 320 …. 18.1.2, 18.2.7 — v Eddy (2005) 226 CLR 1 …. 1.7.11, 5.1.10, 8.2.2, 8.2.11, 8.2.18, 8.2.28, 8.2.35, 8.2.36, 8.3.12 — v Maddalena (2006) 224 ALR 1 …. 3.3.12, 3.3.13, 5.1.10 — v Thompson (2003) 59 NSWLR 77 …. 5.1.10, 5.1.11 — v Wren (1997) 44 NSWLR 463 …. 3.2.8

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— v Young (1998) 16 NSWCCR 56; (1998) Aust Torts Reports 81-468 …. 2.3.16, 4.3.58 Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 …. 10.2.12, 11.5.19C, 17.3.24 — v — (No 2) (2000) 103 FCR 1 …. 10.2.12, 11.5.1, 17.3.24 Cullen v Chief Constable of the Royal Ulster Constabulary [2004] 2 All ER 237 …. 10.2.12 — v Trappell (1980) 146 CLR 1 …. 8.2.21 Cummings v Amaca Pty Ltd [2014] VSC 362 …. 9.1.6 Cunard v Antifyre Ltd [1933] 1 KB 551 …. 14.1.3C Cunningham v Harrison [1973] QB 942 …. 8.2.29C Curmi v McLennan [1994] 1 VR 513 …. 7.7.31 Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449 …. 18.2.21 Curtis v Harden Shire Council (2014) 88 NSWLR 10 …. 7.6.15, 7.6.16, 7.6.20 Customs and Excise v Barclays Bank plc [2007] 1 AC 181 …. 16.1.10 Cutler v Vauxhall Motors Ltd [1971] QB 418 …. 4.2.35 — v Wandsworth Stadium Ltd [1949] AC 398 …. 10.2.3 Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181 …. 5.2.8, 18.2.9 Czatyrko v Edith Cowan University (2005) 214 ALR 349 …. 3.1.31, 6.2.26, 7.8.4

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D D v East Berkshire Community Health NHS Trust [2005] 2 AC 373 …. 2.2.18 Da Costa v Australian Iron & Steel Pty Ltd (1978) 20 ALR 257 …. 3.1.43 — v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 …. 3.2.4, 6.2.52, 7.8.6 Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 …. 3.1.50 Dale v Fox [2012] TASSC 84 …. 11.3.11 — v Veda Advantage Information Services and Solutions Ltd (2009) 176 FCR 456 …. 16.2.20 Dalton v Angus (1881) 6 App Cas 740 …. 14.2.2C Daly v Liverpool Corporation [1939] 2 All ER 142 …. 6.2.37 — v Thiering (2013) 249 CLR 381 …. 1.1.34 Damevski v Guidice (2003) 133 FCR 438 …. 17.2.4 Danby v Beardsley (1880) 43 LT 603 …. 11.5.27 Dansey v Richardson (1854) 3 El & Bl 144 …. 17.4.2C D’Aquino (as trustee of the D’Aquino Endowment Trust) v Trovatello [2015] VSCA 78 …. 14.5.3 Darcy v Nominal Defendant (1985) 2 MVR 447 …. 7.7.19

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Darker v Chief Constable of West Midlands [2001] 1 AC 435 …. 1.5.16 Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36; [1957] ALR 505 …. 10.1.2, 10.2.2C, 10.2.5, 10.2.20C, 17.2.2C, 17.4.2C, 17.4.5, 17.4.8, 17.4.9 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 …. 6.3.28 Davey v Harrow Corp [1958] 1 QB 60 …. 14.2.14 Davidson v Chief Constable of North Wales [1994] 2 All ER 597 …. 11.5.19C, 11.5.20 Davie v New Merton Board Mills Ltd [1959] AC 604 …. 7.8.8, 17.6.5 Davies v Mann (1842) 10 M & W 547 …. 6.2.2 — v Powell Duffryn Associated Collieries Ltd [1942] AC 601 …. 9.2.14 — v Taylor [1974] AC 207 …. 9.2.12 Davis v Gell (1924) 35 CLR 275 …. 11.5.32 — v Nolras Pty Ltd [2005] NSWCA 379 …. 7.5.10 — v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 …. 6.3.28 — v Radcliffe [1990] 2 All ER 536 …. 16.3.20 — v Swift (2014) 69 MVR 375; [2014] NSWCA 458 …. 6.2.41 Dawkins v Robinson (1986) 3 MVR 77 …. 6.2.58 Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335 …. 8.1.21, 17.2.14 — v Rogers [2011] NSWCA 124 …. 4.3.9 — v Trans-World Airlines Inc 528 F 2d 31 (1975) …. 1.2.9, 1.2.10 DC v State of New South Wales [2016] NSWCA 198 …. 2.6.29, 2.6.37, 10.2.17 De Freitas v O’Brien [1995] PIQR P281 …. 3.2.22 De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498 …. 14.2.16 De Sales v Ingrilli (2000) 23 WAR 417 …. 1.7.6, 9.2.16, 9.2.21 — v — (2002) 212 CLR 338; 193 ALR 130; [2002] HCA 52 …. 9.2.6C, 9.2.12, 9.2.17C, 9.2.18, 9.2.19, 9.2.21 Deal v Kodakkathanath [2015] VSCA 191 …. 10.2.37 — v — (2016) 334 ALR 37 …. 10.1.23, 10.2.14, 10.2.37, 10.2.44 Dean v Phung (2012) Aust Torts Reports 82-111 …. 8.1.9, 8.1.13, 11.4.5, 11.4.6, 13.2.3, 13.2.16, 13.2.18 — v — [2012] NSWCA 223 …. 7.9.4 — v — [2015] NSWSC 816 …. 11.4.6 Deatons Pty Ltd v Flew (1949) 79 CLR 370 …. 17.3.12C, 17.3.13, 17.3.18C, 17.3.26, 17.6.10 Dehn v Attorney-General [1988] 2 NZLR 564 …. 13.3.11C Dekker v Medical Board of Australia [2014] WASCA 216 …. 7.9.11 Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 …. 14.2.12, 14.2.14,

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14.5.2 Deloitte Touche Tohmatsu v Cridlands Pty Ltd (2003) 134 FCR 474 …. 18.2.7 Delphin v Savolainen (1989) 10 MVR 37 …. 3.3.15 Dennis v Ministry of Defence [2003] EWHC 793 …. 14.3.14 Department of Housing & Works v Smith (No 2) (2010) 41 WAR 217 …. 3.1.2, 3.1.31, 7.5.9 Deposit Guaranty National Bank of Jackson v Roper 445 US 326 (1980) …. 7.4.2C Derrick v Cheung (2001) 181 ALR 301 …. 6.2.23, 6.2.36 Derring Lane Pty Ltd v Fitzgibbon (2007) 16 VR 563 …. 16.2.28 Derry v Peek (1889) 14 App Cas 337 …. 2.2.4, 2.2.5, 16.1.7, 16.1.8C, 16.2.1, 16.2.2, 16.2.4, 16.2.5C Design Services Ltd v Canada [2008] 1 SCR 737 …. 16.2.17 Desmond v Chief Constable of Nottinghamshire Police [2011] Fam Law 358 …. 16.2.20 Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173 …. 17.2.12 Deyong v Shenburn [1946] KB 227 …. 7.8.16 Di Battista v Motton [1971] VR 565 …. 9.2.12 Di Carlo v Dubois [2004] QCA 150 …. 7.9.8 — v — [2007] QCA 316 …. 7.9.8 — v — [2008] HCASL 537 …. 7.9.8 Di Napoli v New Beach Apartments Pty Ltd (2004) Aust Torts Reports 81-728 …. 12.4.7, 12.5.4 DIB Group Pty Ltd t/as Hill & Co v Cole (2009) Aust Torts Reports 82-022 …. 7.8.8 Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 …. 1.1.27 — v Waters Ltd (1931) 31 SR (NSW) 593 …. 11.5.20 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 …. 18.2.14C Dillon v Gange (1941) 64 CLR 253 …. 17.5.12 Dimitrelos v 14 Martin Place Pty Ltd [2007] NSWCA 85 …. 3.4.12 Dimond v Lovell [2002] 1 AC 384 …. 1.2.5 Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96 …. 10.2.41 Dionisatos (for the Estate of the Late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34 …. 9.1.8 Director-General, Department of Community Services, Re; Jules (2008) 40 Fam LR 122 …. 13.2.45 Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 …. 13.2.45 DNM Mining Pty Ltd v Barwick [2004] NSWCA 137 …. 4.3.24

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Dobler v Halverson (2007) 70 NSWLR 151 …. 3.2.27 Dobson v Thames Water Utilities Ltd [2009] 3 All ER 319 …. 14.1.4, 14.1.5, 14.1.7, 14.5.3 Dobson (Litigation Guardian of) v Dobson [1999] 2 SCR 753 …. 7.2.16 Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 All ER 928 …. 8.3.8 Dodge v Snell [2011] TASSC 19 …. 3.2.39, 3.2.41, 8.2.14, 8.2.56 Doe v Australian Broadcasting Corporation [2007] VCC 281 …. 10.2.15, 11.6.3C — v Bennett [2004] SCC 17; [2004] 1 SCR 436 …. 17.5.7 Domachuk v Feiner (unreported, NSW CA, 28 November 1996) …. 14.1.16 Dominic v Riz [2009] NSWCA 216 …. 16.2.18 Donellan v Watson (1990) 21 NSWLR 335 …. 2.6.18, 2.6.24 Donnellan v Woodland [2012] NSWCA 433 …. 2.6.25, 5.1.13 Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 …. 12.2.17, 12.2.18 — v Joyce [1974] 1 QB 454 …. 8.2.29C Donoghue v Stevenson [1932] AC 562; [1932] All ER Rep 1 …. 2.1.1, 2.1.3, 2.2.6, 2.2.7C, 2.2.9, 2.2.11, 2.2.13, 2.2.17C, 2.2.22, 2.3.9, 2.4.2, 2.4.3C, 2.4.12C, 2.5.6, 2.6.1, 3.1.6, 3.1.30, 3.1.63, 3.1.69, 3.2.24, 4.3.27C, 5.2.1, 7.1.2, 7.3.2, 7.3.3, 7.3.10, 7.5.3C, 16.1.9, 16.2.4, 16.2.5C, 16.2.13, 16.2.21C, 16.3.4C Donselaar v Donselaar [1982] 1 NZLR 97 …. 8.1.20 Doolan v Renkon Pty Ltd [2011] TASFC 4 …. 16.2.18 Dorman v Horscroft (1980) 24 SASR 154 …. 15.2.19, 15.2.22 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 …. 1.2.4, 2.2.2, 2.2.12, 2.2.13, 2.2.17C, 2.6.5, 2.6.46C D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; [2005] HCA 12 …. 1.5.16, 1.5.18, 2.1.4, 2.6.3, 2.6.16C, 3.2.27, 5.1.16C Dos Santos v C Morris Painting & Decorating (2006) 45 MVR 168 …. 6.2.22 Doubleday v Kelly [2005] NSWCA 151 …. 6.3.2, 7.5.12, 7.7.23 Doughty v Cassidy [2005] 1 Qd R 462 …. 8.2.22 — v Turner Manufacturing Co Ltd [1964] 1 QB 518 …. 4.3.57 Douglas v Hello! Ltd [2001] QB 967 …. 11.6.3C — v — (No 3) [2006] QB 125 …. 11.6.3C Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 …. 10.2.40 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 …. 2.1.1, 2.7.1, 3.1.71, 3.2.2, 3.2.4, 7.1.6 Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 851 …. 7.3.5, 7.4.1 Downs v Williams (1971) 126 CLR 61 …. 1.5.10, 10.1.2 Downunder Rock Cafe Pty Ltd v Roberts (1998) Aust Torts Reports 81-481 …. 7.5.14

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Dowsing v Goodwin (1997) 27 MVR 43 …. 3.2.17 Dowthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72 …. 18.2.7 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 …. 16.2.33 Draper v Hodder [1972] 2 QB 556 …. 15.2.11C Drexel London v Gove (2009) 170 LGERA 54 …. 10.2.10, 10.2.29 Drinkwater v Howarth [2006] NSWCA 222 …. 3.1.15 Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 …. 17.1.4 Duke Group Ltd (in liq) v Pilmer (1999) 73 SASR 64 …. 16.2.29 Dulieu v White & Sons [1901] 2 KB 669 …. 4.3.38 Duma v Mader International Pty Ltd (2013) 42 VR 351 …. 10.2.53 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 …. 10.2.39 Dunnage v Randall [2016] QB 639 …. 3.2.15 Dunning v Altmann [1991] 2 VR 667 …. 18.2.6 Durham v BAI (Run Off) Ltd [2012] 1 WLR 867 …. 4.2.20, 4.2.21, 5.1.5C Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 …. 10.2.51 Dwan v Farquhar [1988] 1 Qd R 234 …. 3.1.60 Dwr Cymru Cyfyngedig (Welsh Water) v Barratt Homes Ltd [2013] EWCA Civ 233; [2013] WLR 3486 …. 10.2.12 Dymond v Pearce [1972] 1 QB 496 …. 14.6.7

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E E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601 …. 3.1.44, 3.1.52, 3.1.60, 3.1.61, 3.2.20C, 7.9.17 — v Australian Red Cross Society (1991) 31 FCR 299 …. 3.1.52, 7.9.17 E Hulton & Co v Jones [1910] AC 20 …. 15.1.3 E (Medical Treatment: Anorexia) (Rev l) [2012] EWHC 1639 …. 13.2.32 Easson v London & North Eastern Railway Co [1944] 1 KB 421 …. 3.3.14 Eastern and South African Telegraph Company Ltd v Cape Town Tramways Companies Ltd [1902] AC 381 …. 14.1.22C Eather v Jones [1974] 2 NSWLR 19 …. 15.2.16, 15.2.17 — v — (1975) 6 ALR 220; 49 ALJR 254 …. 15.2.11C, 15.2.17 Eaton v Tricare (Country) Pty Ltd [2016] QCA 139 …. 7.8.14, 7.10.11 EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005] 3 SCR 45 …. 17.3.18C Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 …. 17.6.21 Edson v Roads & Traffic Authority (2006) 65 NSWLR 453 …. 6.2.23, 6.2.31 Edwards v Blue Mountains CC (1961) 78 WN (NSW) 864 …. 4.3.30

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— v Law Society of Upper Canada [2001] 3 SCR 562 …. 16.3.20 — v Noble (1971) 125 CLR 296 …. 3.2.4 — v Railway Executive [1952] AC 737 …. 12.2.9C — v West Herts Group Management Committee [1957] 1 All ER 541 …. 7.8.16 — v Woolworths Ltd [2009] ACTSC 4 …. 10.1.14 Effem Foods Ltd v Nicholls (2004) ATPR 42-034 …. 15.3.5 Elayoubi bhnf Kolled v Zipser [2008] NSWCA 335 …. 4.2.31, 4.3.1 Elbourne v Gibbs [2006] NSWCA 127 …. 3.2.25 Electro Optic Systems Pty Ltd v State of New South Wales (2012) 273 FLR 304 …. 7.9.10 Elfah Pty Ltd v Sabbadini (1994) 19 MVR 81 …. 17.5.12 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 …. 2.6.33C Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 …. 13.4.5 Elliot v Bickerstaff (1999) 48 NSWLR 241 …. 3.4.16 Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 …. 10.2.12 — v Wallsend District Hospital (1989) 17 NSWLR 553 …. 1.1.25, 17.2.8, 17.2.9, 17.6.8 Elsee v Gatward (1793) 5 TR 143; 101 ER 82 …. 16.1.8C Elston v Dore (1982) 149 CLR 480 at 488; 43 ALR 577; [1982] HCA 71 …. 14.1.12, 14.1.27, 14.2.1, 14.3.15 EM Baldwin & Son Pty Ltd v Plane [1999] Aust Torts Reports 81-499 …. 4.2.22 Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 …. 12.2.16, 12.5.1C Encev v Encev (unreported, Vic SC, 24 November 1997) …. 4.3.53C Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 …. 18.2.18 Enever v R (1906) 3 CLR 969 …. 17.3.24, 17.3.25 English v Rogers (2005) Aust Torts Reports 81-800 …. 7.5.18 Entick v Carrington (1765) 2 Wils KB 275 …. 12.1.2, 12.2.9C Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 …. 4.3.3 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 173 IR 412 …. 18.1.8 Erlich v Leifer [2015] VSC 499 …. 1.5.28 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 …. 17.5.7 Erwin v Iveco Trucks Australia Ltd (2010) 267 ALR 752 …. 3.1.10, 3.1.66, 3.1.71, 3.3.9, 15.3.6 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241 …. 1.6.15, 16.2.26, 16.2.28, 16.2.29, 16.3.4C Eshugbayi Eleko v Government of Nigeria [1931] AC 662 …. 11.5.3 Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] AC 643 …. 17.3.24

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— v Mardon [1976] QB 801 …. 16.2.17 — v Southport Corporation [1956] AC 218 …. 11.2.3, 13.3.11C, 17.4.8 Evans v Balog [1976] 1 NSWLR 36 …. 8.3.5, 14.5.3 — v Queanbeyan City Council (2011) 9 DDCR 541 …. 4.2.3, 4.2.20 Evenden v Manning SC (1929) 30 SR (NSW) 52 …. 4.3.15 Everitt v Martin [1953] NZLR 298 …. 11.1.11

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F F v R (1983) 33 SASR 189 …. 3.2.20C, 3.2.24, 7.9.5, 7.9.7, 13.2.24C F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 …. 11.4.7C, 11.4.8, 13.3.3 FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651 …. 18.1.11 — v Lucre (2000) 50 NSWLR 261 …. 2.3.4, 7.10.12 Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263 …. 17.2.14 — v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 …. 17.2.7 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 …. 4.1.1, 4.2.1C, 4.2.6, 4.2.13C, 4.2.19, 4.2.20, 4.2.25, 5.1.5C Fairfax Media Publications Pty Ltd v Cummings (2013) 280 FLR 238 …. 18.1.2 Fallas v Mourlas (2006) 65 NSWLR 418 …. 6.3.22 Falls Investments v New South Wales [2007] NSWCA 18 …. 16.1.14, 16.2.7 Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831 …. 6.3.22 Fangrove Pty Ltd v TOD Group Holdings Pty Ltd [1999] 2 Qd R 236 …. 16.3.16 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 …. 7.1.4 Farr v Butters Bros & Co [1932] 2 KB 606 …. 2.4.2 Farrington v Thomson [1959] VR 286 …. 12.2.15C Farstad Supply AS v Enviroco Ltd [2010] 2 Lloyd’s Rep 387 …. 18.2.9 Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 …. 8.1.11 Faulkner v Keffalinos (1970) 45 ALJR 80 …. 4.3.17, 4.3.24, 4.3.25 Fazio v Commonwealth [1970] 2 NSWR 303 …. 4.3.16 Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 …. 17.2.1 Feiner v Domachuk (1994) 35 NSWLR 485 …. 14.1.16, 14.5.3 Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 …. 14.2.1, 14.2.2C, 14.2.14 Ferguson v Hamilton Civic Hospitals (1983) 40 OR (2d) 577 …. 7.9.17 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 …. 4.2.16 Fernando v Commonwealth of Australia (2014) 231 FCR 251 …. 8.1.4 Fernando by his Tutor Ley v Commonwealth of Australia [2015] HCATrans 286 …. 8.1.4

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Ffrench v Sestili (2008) 15 ANZ Ins Cas 61-751 …. 17.3.4, 17.3.5, 17.3.10, 17.3.11, 17.3.23 Fiala v Cechmanek (2001) 6 CCLT (3d) 223 …. 3.2.14 Filburn v People’s Palace & Aquarium Co Ltd (1890) 25 QBD 258 …. 15.2.3C Finesky Holdings Pty Ltd v Minister for Transport (WA) [2001] WASC 87 …. 12.3.2 Fingleton v R (2005) 227 CLR 166 …. 1.5.18 Fink v Fink (1946) 74 CLR 127 …. 8.2.17 Finn v Roman Catholic Trust Corp for the Diocese of Townsville [1997] 1 Qd R 29 …. 3.1.36, 7.2.3 Firth v Sutton [2010] NSWCA 90 …. 5.1.14 — v — (No 2) [2010] NSWCA 109 …. 5.1.14 Fischer v Stuart (1979) 25 ALR 336 …. 15.2.7 Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Ltd [2013] ACTSC 210 …. 10.1.18 Fisher v Smithson (1978) 17 SASR 223 …. 9.2.15 Fitch v Hyde-Cates [1980] 2 NSWLR 757 …. 9.1.3 — v — (1982) 150 CLR 482 …. 8.2.24, 9.1.1C Fitzgerald v Hill (2008) 51 MVR 55 …. 17.6.9 — v Lane [1989] AC 328 …. 18.2.13 Fkiaras v Fkiaras (2010) 77 NSWLR 468 …. 8.2.22 Fleissig v Teamfox Pty Ltd [2001] NSWSC 286 …. 6.3.26, 6.3.30 Fleming v Securities Commission [1995] 2 NZLR 514 …. 16.3.20 Fletcher v Rylands (1866) LR 1 Ex 265 …. 15.1.2 — v Toppers Drinks Pty Ltd [1981] 2 NSWLR 911 …. 3.4.13, 7.3.6 Flew v Deatons Pty Ltd (1949) 49 SR (NSW) 219 …. 17.3.12C Fligg v Owners Strata Plan 53457 [2012] NSWSC 230 …. 8.3.11 Flint v Lovell [1935] 1 KB 354 …. 8.2.58C Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 …. 18.1.8 Flounders v Millar (2007) 49 MVR 53 …. 4.2.17 Fogg v McKnight [1968] NZLR 330 …. 11.1.10 Fontin v Katapodis (1962) 108 CLR 177 …. 8.1.14C, 8.1.22 Forbes v Olympic General Products (Qld) Pty Ltd (1989) Aust Torts Reports 80-301 …. 7.3.11 Forourghi v Star City Pty Ltd (2007) 163 FCR 131 …. 10.2.10 Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495 …. 8.2.8 Fortuna Seafoods Pty Ltd v The Ship Eternal Wind [2008] 1 Qd R 429 …. 16.1.11, 16.3.7, 16.3.10

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Foster v Warblington Urban District Council [1906] 1 KB 648 …. 14.1.3C Fowler v Lanning [1959] 1 QB 426 …. 11.3.2, 11.3.4, 11.3.5, 11.3.6C, 11.3.7, 11.3.8, 11.3.11 Fox v Percy (2003) 214 CLR 118; 197 ALR 201; [2003] HCA 22 …. 3.2.4, 3.3.6C, 3.3.12 Francis v Cockrell (1870) LR 5 QB 501 …. 1.2.11 — v Lewis [2003] NSWCA 152 …. 7.5.12 Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 …. 12.2.15C Fraser v Booth (1950) 50 SR (NSW) 113 …. 14.1.20 — v Vitkus (1989) 10 MVR 103 …. 3.4.15 Freeman v Home Office (No 2) [1984] QB 524 …. 13.2.2, 13.2.20 Frisbo Holdings Pty Ltd v Austin Australia Pty Ltd [2010] NSWSC 155 …. 18.2.6 Froom v Butcher [1976] QB 286 …. 1.3.10, 6.2.58 Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 …. 6.3.19 — v Warner (2002) 209 CLR 509 …. 17.1.7 Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 …. 16.3.8 Fuller-Lyons v New South Wales (2015) 323 ALR 639 …. 3.3.13 Fytche v Wincanton Logistics Plc [2004] 4 All ER 221 …. 10.2.34 Fry v Jenkins [1955] VLR 184 …. 1.4.7

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G G, PA and C, P v Down (2009) 104 SASR 332 …. 3.2.25, 7.9.6 Gagner Pty Ltd (t/as Indochine Café) v Canturi Corporation Pty Ltd (2009) 262 ALR 691 …. 8.3.1C, 8.3.2, 8.3.4, 8.3.5, 8.3.8 Gala v Preston (1991) 172 CLR 243 …. 2.6.8 Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 …. 10.2.39 Galea v Bagtrans Pty Ltd [2011] Aust Torts Reports 82-078 …. 7.8.8 — v Gillingham [1987] 2 Qd R 365 …. 15.2.1, 15.2.11C Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 …. 7.6.15, 14.4.4 — v — [2014] HCATrans 142 …. 14.4.4 Gallo v Dawson (1988) 82 ALR 401 …. 1.5.18 Gammell v Wilson [1982] AC 27 …. 8.2.24 Gamser v Nominal Defendant (1977) 136 CLR 145 …. 8.2.15 Gardiner v McManus [1971] NZLR 475 …. 10.2.4 — v State of Victoria [1999] 2 VR 461 …. 10.1.7 Gartner v Kidman (1962) 108 CLR 12 …. 14.3.3C, 14.3.15 Gaskin v Ollerenshaw [2012] NSWCA 33 …. 4.2.30

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Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 …. 16.2.34 Gattellaro v Spencer [2010] NSWSC 1122 …. 2.6.22 — v — [2011] NSWCA 415 …. 2.6.22 Gaunt v Fynney (1872) LR 8 Ch 8 …. 14.1.19 Gazzard v Hutchesson (1995) Aust Torts Reports 81-337 …. 12.2.2 Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430 …. 14.2.5, 14.3.11 Geelong Harbour Trust Commissioners v Gibbs, Bright & Co (1970) 122 CLR 504 …. 1.2.10 — v — [1974] AC 810 …. 1.2.3 GEJ & MA Geldard Pty Ltd v Mobbs (No 2) [2011] QSC 033 …. 18.2.21 Genders v GIO of NSW (1959) 102 CLR 363 …. 9.1.10 General Cleaning Contractors Ltd v Christmas [1953] AC 180 …. 3.1.43 General Motors Corp Pick-Up Truck Fuel Tank Products Liability Litigation, Re 55 F3d 768 (1995) …. 7.4.2C General Motors-Holden’s Pty Ltd v Moularas (1964) 111 CLR 234 …. 8.2.42 Gent-Diver v Neville [1953] St R Qd 1 …. 6.3.9 George v Rockett (1990) 170 CLR 104 …. 12.1.5, 13.5.5, 13.5.10 George Wimpey & Co Ltd v BOAC [1955] AC 169 …. 18.2.9 Gett v Tabet (2009) 254 ALR 504 …. 5.1.15 Geyer v Downs (1977) 138 CLR 91 …. 7.7.18 Ghantous v Hawkesbury City Council (1999) 102 LGERA 399 …. 7.6.19 Giannarelli v Wraith (1988) 165 CLR 543 …. 2.6.16C, 2.6.22, 3.2.29 Gibbons v Duffell (1932) 47 CLR 520 …. 1.5.16 — v Pepper (1695) 1 Ld Raym 38 …. 11.3.15 Gibbs v Rea [1998] AC 786 …. 11.5.33 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 …. 5.1.11, 7.10.5 Gilchrist v Down [2010] HCATrans 24 …. 7.9.6 Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 …. 11.4.21, 11.6.3C, 11.6.12, 12.2.17 Gillett v State of NSW [2009] NSWSC 421 …. 10.2.16 Gillick v West Norfolk AHA [1986] AC 112 …. 13.2.39, 13.2.40, 13.2.41, 13.2.44 Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 …. 10.2.45, 10.2.47C Gittani Stone Pty Ltd v Pavkovic (2007) Aust Torts Reports 81-924 …. 4.3.36, 7.7.17 Giumelli v Johnston (1991) Aust Torts Reports 81-085 …. 13.2.9 Glanville v Sutton & Co Ltd [1928] 1 KB 571 …. 15.2.16 Glanzer v Shepard 135 NE 275 (1922) …. 16.2.28 Glasgow Corp v Muir [1943] AC 448 …. 3.2.3

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— v Taylor [1922] 1 AC 44 …. 7.2.7 Glavan v Abigroup Contractors [2015] NSWSC 807 …. 18.2.9 Glavonjic v Foster [1979] VR 536 …. 4.3.47 Glendale Chemical Products Pty Ltd v Australian Competition and Consumer Commission (1998) 90 FCR 40 …. 7.3.6, 7.3.10, 15.3.5 Glenmont Investments Pty Ltd v O’Loughlin (2000) 79 SASR 185 …. 8.3.3, 8.3.4, 8.3.11 Go Dante Yap v Bank Austria Creditanstalt AG [2011] 4 SLR 559 …. 2.5.2 Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 …. 4.3.24 Godfrey Spowers (Victoria) Pty Ltd v Lincoln Scott Australia Pty Ltd (2008) 21 VR 84 …. 18.2.21 Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498 …. 8.2.43, 8.2.55 Goldman v Hargrave [1967] 1 AC 645; [1967] ALR 113; [1966] 2 All ER 989 …. 3.2.7, 7.7.11C, 14.2.15, 14.3.16C, 14.4.1C Goldsmith v Bisset (No 3) (2015) 71 MVR 53 …. 6.2.14 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 …. 3.3.3 Goodsell v Murphy (2002) 36 MVR 408 …. 4.3.14, 4.3.17, 4.3.42, 4.3.43 Goodwin v Commissioner of Police [2010] NSWCA 239 …. 2.5.13 — v Nominal Defendant (1979) 54 ALJR 84 …. 3.4.6 Gordon Martin Pty Ltd v State Rail Authority of New South Wales (2008) 49 MVR 490 …. 8.3.6 — v — (2009) 53 MVR 474 …. 8.3.6 Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 …. 7.6.17 Gorris v Scott (1874) LR 9 Ex 125 …. 10.2.30 Gosling v Lorne Foreshore Committee of Management Inc (2009) 25 VR 302 …. 3.1.38, 7.5.9, 7.5.12 Gould v Vaggelas (1984) 157 CLR 215 …. 16.2.1, 16.2.33 — v — (1985) 157 CLR 215 …. 16.2.2, 16.2.30 Gover v South Australia (1985) 39 SASR 543 …. 3.2.20C Government Insurance Office of NSW v Johnson [1981] 2 NSWLR 617 …. 8.2.20 — v Rosniak (1992) 27 NSWLR 665 …. 8.2.4 Govett v Radnidge (1802) 3 East 62 …. 2.2.1 Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 …. 10.1.12, 10.1.18 Grace v Elmasri (2009) 53 MVR 309 …. 1.4.14 Graham v Baker (1961) 106 CLR 340 …. 8.2.13C, 8.2.18, 8.2.29C, 8.2.33, 8.2.51 — v Hall (2006) 67 NSWLR 135 …. 16.2.25

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— v KD Morris & Sons Pty Ltd [1974] Qd R 1 …. 12.4.5, 12.4.6 — v Peat (1801) 1 East 244 …. 12.3.3 — v Royal National Agricultural & Industrial Association of Queensland [1989] 1 Qd R 624 …. 6.3.28, 15.2.1 Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 …. 15.3.3, 15.3.5 — v — (2002) 211 CLR 540; 194 ALR 337; [2002] HCA 54 …. 2.5.2, 2.5.3, 2.5.11, 2.6.46C, 3.1.7, 3.1.31, 3.1.39C, 3.1.50, 3.1.67, 3.2.4, 7.1.1, 7.3.2, 7.3.10, 7.4.1, 7.6.2, 7.6.3C, 7.6.10, 7.6.13, 15.3.3 Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 …. 10.2.10 Grant v Australian Knitting Mills Ltd [1936] AC 85 …. 2.2.11, 2.4.10, 7.3.3, 7.3.4, 7.3.6, 7.5.5, 16.2.5C — v Sun Shipping Co Ltd [1948] AC 549 …. 6.2.24 Grasso v Love [1980] VR 163 …. 14.5.6 Graves v West (No 2) [2015] NSWSC 306 …. 8.1.18 Gray v Motor Accident Commission (1998) 196 CLR 1 …. 1.4.23, 8.1.12, 8.1.18, 12.5.1C — v Thames Trains Ltd [2009] AC 1339 …. 2.6.9 Great Central Railway Co v Bates [1921] 3 KB 578 …. 12.2.9C Great Lakes Shire Council v Dederer (2006) Aust Torts Reports 81-860 …. 6.3.22 Green v Country Rugby Football League of NSW Inc [2008] NSWSC 26 …. 2.4.13 Greenwood v Papademetri [2007] NSWCA 221 …. 14.6.5 Gregg v Scott [2005] 2 AC 176 …. 5.1.16C, 5.1.23, 5.1.24, 9.2.8 Gregory v Portsmouth City Council [2000] 1 AC 419 …. 11.5.34, 11.5.35 Grey v Simpson (unreported, NSW CA, Hope, Reynolds and Samuels JJA, 3 April 1978) …. 4.3.14 Griffiths v Ballard [2008] HCATrans 227 …. 1.5.16 — v Commonwealth of Australia (1983) 50 ACTR 7 …. 4.2.36, 4.3.24, 4.3.25 — v Haines [1984] 3 NSWLR 653 …. 17.3.24 — v Kerkemeyer (1977) 139 CLR 161 …. 8.2.11, 8.2.29C, 8.2.30, 8.2.31, 8.2.33, 8.2.34, 8.2.35, 8.3.12 — v Wood (1994) 62 SASR 204 …. 6.2.35 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 …. 6.2.11, 6.2.19 Grincelis v House (2000) 201 CLR 321 …. 8.2.30, 8.2.33, 8.2.34 Gronow v SGIO (Qld) [1980] Qd R 425 …. 9.1.10 Groom v Crocker [1939] 1 KB 194 …. 1.2.3, 3.1.8 Grosse v Purvis [2003] QDC 151 …. 11.6.3C Grosso v Deaton (2012) 61 MVR 349 …. 9.2.11, 9.2.16

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Groves v Commonwealth (1982) 150 CLR 113 …. 2.6.43 — v Lord Wimborne [1898] 2 QB 402 …. 10.2.2C, 10.2.3 GS v News Ltd (1998) Aust Torts Reports 81-466 …. 10.2.15, 16.2.20 Gutman v McFall (2004) 61 NSWLR 599 …. 17.5.1 Gwam Investments Pty Ltd v Outback Health Screenings Pty Ltd (2010) 106 SASR 167 …. 16.3.15, 16.3.18 GWW & CMW, Re (1997) 21 Fam LR 612 …. 13.2.53

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H H, Re [2011] QSC 427 …. 13.2.45 H v R [1996] 1 NZLR 299 …. 13.2.2 — v Royal Alexandra Hospital for Children (1990) Aust Torts Reports 81-000 …. 3.1.60, 4.3.58 H Ltd v J (2010) 107 SASR 352 …. 13.2.26, 13.3.7 Haber v Walker [1963] VR 339 …. 4.2.5, 4.3.10, 4.3.13, 9.2.9 Hackshaw v Shaw (1984) 155 CLR 614 …. 7.5.1, 7.5.3C, 7.11.1, 12.5.5, 13.4.3 Haddon v Lynch [1911] VLR 5 …. 14.1.17 — v — [1911] VLR 230 …. 14.1.17 Hadgelias Holdings Pty Ltd v Seirlis [2015] 1 Qd R 337 …. 18.2.21 Hadland v Council of the City of Blacktown (unreported, NSW CA, Handley JA, Clarke and Grove AJJA, 21 May 1997) …. 6.3.14 Hahn v Conley (1971) 126 CLR 276 …. 7.7.19 Haileybury College v Emanuelli [1983] 1 VR 323 …. 4.3.30 Haines v Bendall (1991) 172 CLR 60 …. 1.4.7 — v Rytmeister (1986) 6 NSWLR 529 …. 7.7.34 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 …. 1.5.26 Haley v London Electricity Board [1965] AC 778 …. 1.8.2, 7.2.2, 7.2.7 Hall v Fonceca [1983] WAR 309 …. 11.4.7C — v Whatmore [1961] VR 225 …. 17.4.5 Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 …. 12.1.2, 12.1.5, 12.2.9C, 12.2.15C, 12.5.1C, 13.5.2, 13.5.5 Hamilton v New South Wales (No 13) [2016] NSWSC 1311 …. 8.1.9 — v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] ALR 872 …. 3.1.43, 3.1.71, 6.1.5, 7.8.5C Hampic Pty Ltd v Adams [2000] ATPR 41-737 …. 18.2.18 Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 …. 8.1.5 Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120 …. 11.5.8

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Haniotis v Dimitriou [1983] 1 VR 498 …. 12.5.5 Harding v Lithgow Corp (1937) 57 CLR 186 …. 9.2.8 Hargrave v Goldman (1963) 110 CLR 40; [1964] ALR 377; [1963] HCA 56 …. 2.2.12, 7.7.4, 7.7.9, 7.7.10C, 14.2.3, 14.2.11C, 14.1.22C Harmer v Hare (2011) 59 MVR 1 …. 7.11.4 Harper v G N Haden & Sons Ltd [1933] Ch 298 …. 14.6.7 Harris v Bulldogs Rugby League Club (2006) Aust Torts Reports 81-838 …. 3.1.51 — v Commercial Minerals Ltd (1996) 186 CLR 1 …. 8.2.48 — v Wyre Forest Council [1988] QB 835 …. 6.3.30 Harrison v Melhem (2008) 72 NSWLR 380 …. 4.3.14, 8.2.33 Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 …. 1.5.28, 5.1.5C, 5.1.25, 7.1.1, 7.1.6, 7.2.9C, 7.2.21, 7.7.19, 7.9.1 Hart v Herron (1980) Aust Torts Reports 80-201 …. 8.1.19 Hartley v Mayoh & Co [1954] 1 QB 383 …. 10.2.28 Hartley Poynton Ltd v Ali (2005) 11 VR 568 …. 8.1.11 Harvey v Henzell [2015] QCA 261 …. 1.5.16 Hasler v Singtel Optus Pty Ltd (2014) 311 ALR 494; [2014] NSWCA 266 …. 16.1.8C Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 …. 1.4.2, 1.4.4 Havelberg v Brown [1905] SALR 1 …. 7.7.11C Havenaar v Havenaar [1982] 1 NSWLR 626 …. 4.3.14 Hawkins v Clayton (1988) 164 CLR 539 …. 5.2.8, 5.2.9, 16.2.19, 16.2.21C — v Clayton t/as Clayton Utz & Co (1986) 5 NSWLR 109 …. 1.5.28, 16.2.19 Hay (or Bourhill) v Young [1943] AC 92 …. 4.3.27C, 4.3.44 Hayes v Queensland [2016] QCA 191 …. 7.10.11 — v Willoughby [2013] 1 WLR 935 …. 3.2.27 Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114 …. 2.4.13 Haynes v G Harwood & Son [1935] 1 KB 146 …. 2.1.3, 4.3.15, 4.3.16, 6.3.19 HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 …. 10.2.45, 10.2.47C HC Sleigh Ltd v South Australia (1977) 136 CLR 475 …. 2.6.6 HD v New South Wales [2016] NSWCA 85 …. 11.5.34 He Kaw Teh v R (1985) 157 CLR 523 …. 15.1.7 Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 …. 12.2.23 Heap v Ind Coope and Allsopp Ltd [1940] 2 KB 476 …. 14.6.4C Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 …. 12.2.5 Heaton v AXA Equity & Law Assurance Society Plc [2002] 2 AC 329 …. 18.2.3 Heaven v Pender (1883) 11 QBD 503 …. 2.2.2, 2.2.5, 2.2.6, 2.2.7C, 2.2.17C, 7.5.3C

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Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465; [1963] 2 All ER 575 …. 2.2.11, 2.2.13, 2.6.5, 16.1.7, 16.1.8C, 16.2.5C, 16.2.17, 16.2.20, 16.2.21C, 16.2.28 Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919 …. 3.1.36, 7.2.3, 7.8.15, 7.10.11 Heil v Rankin [2001] QB 272 …. 8.2.56 Heilbut, Symons & Co v Buckleton [1913] AC 30 …. 16.1.5 Helco Pty Ltd v O’Haire (1991) 28 FCR 230 …. 16.2.18 Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 …. 1.5.23, 16.1.10, 16.2.12, 16.2.17 Hendrex v Keating [2016] TASSC 20 …. 8.2.14 Hendriks v McGeoch (2008) Aust Torts Reports 81-942 …. 5.1.13, 16.2.25, 16.2.35 Henry v Thompson [1989] 2 Qd R 412 …. 18.1.2 Henry Kendall & Sons v William Lillico & Sons [1969] 2 AC 31 …. 3.1.5 Henville v Walker (2001) 206 CLR 459 …. 4.2.30, 16.2.2, 16.2.30, 16.2.33 Henwood v Municipal Tramways Trust (1938) 60 CLR 438 …. 7.11.1, 7.11.2 Herbert v Harold Shaw Ltd [1959] 2 QB 138 …. 10.2.28 Hercules Managements Ltd v Ernst & Young [1997] 2 SCR 165 …. 16.2.28 Herd v Weardale Steel Coke & Coal Co [1913] 3 KB 771 …. 11.5.15 — v — [1915] AC 67 …. 11.5.12C, 11.5.13, 11.5.15 Hering v Martin (2004) 40 MVR 366 …. 3.4.14 Herreen v Ciftci (2010) 56 MVR 310 …. 4.3.43 Herrington v British Railways Board [1972] AC 877 …. 3.2.7, 7.7.13 Heydon v NRMA Ltd (2000) 51 NSWLR 1 …. 3.2.8 — v — (2001) 51 NSWLR 1 …. 16.2.18 Hickson v Goodman Fielder Ltd (2009) 237 CLR 130 …. 8.2.55 Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 …. 15.2.18C, 15.2.20, 15.2.21 Hill v Chief Constable of West Yorkshire [1989] AC 53 …. 2.2.17C, 2.6.32, 2.6.37 — v Forrester (2010) 79 NSWLR 470 …. 8.2.33 — v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129 …. 2.6.36 — v Higgins [2012] NSWSC 270 …. 8.1.3, 12.5.2, 12.5.6, 14.1.15 — v — [2012] NSWSC 743 …. 14.1.15 Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 …. 5.1.16C, 7.1.1, 16.2.21C, 16.2.24, 16.2.29, 16.3.2, 16.3.4C Hinkley v Star City Pty Ltd (2011) 284 ALR 154 …. 12.2.5 Hird v Gibson [1974] Qd R 14 …. 4.3.53C

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Hirst v Sydney South West Area Health Service [2011] NSWSC 664 …. 4.3.23 Hobbs v Marlowe [1978] AC 16 …. 1.2.2 Hobson v Attorney-General [2005] 2 NZLR 220 …. 10.2.12 Hodge & Sons v Anglo-American Oil Co (1922) 12 Ll L Rep 183 …. 2.2.7C Hodges v Frost (1984) 53 ALR 373 …. 8.2.32 Hoebergen v Koppens [1974] 2 NZLR 597 …. 13.4.5 Hoffmann v Boland [2013] NSWCA 158 …. 7.7.25, 18.2.12 Hogan v AG Wright Pty Ltd [1963] Tas SR 44 …. 12.2.2, 12.5.1C — v Gill (1992) Aust Torts Reports 81-182 …. 7.7.31, 11.3.16 — v Koala Dundee Pty Ltd (1988) 20 FCR 314 …. 1.5.22 Hoinville-Wiggins v Connelly (1999) 29 MVR 169 …. 7.10.16 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 63; [2001] HCA 44 …. 1.4.25, 10.2.24, 17.1.1, 17.2.2C, 17.2.7, 17.3.18C, 17.4.5, 17.5.1, 17.5.2C Holloway v McFeeters (1956) 94 CLR 470 …. 3.4.2C Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825; [1936] 2 KB 468 …. 14.1.19, 14.1.22C, 14.1.24 Homsi v Homsi [2016] VSC 354 …. 2.3.4, 7.10.12 Hookey v Paterno (2009) 22 VR 362 …. 3.2.25, 7.9.6 — v — [2009] HCATrans 226 …. 7.9.6 Hopewell v Baranyay [1962] VR 311 …. 10.2.4 Horan v Ferguson [1995] 2 Qd R 490 …. 11.4.8 Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 …. 12.5.5, 13.4.3, 13.4.5, 17.4.8 Horvath v State of Victoria [2004] HCATrans 215 …. 17.3.25 Hosking v Runting [2005] 1 NZLR 1 …. 11.6.3C, 11.6.12 Hospital v T (2015) Aust Torts Reports 82-229 …. 13.2.45 Host v Bassett (1983) 48 ALR 404 …. 3.4.6 Houlahan v Pitchen [2009] WASCA 104 …. 8.2.56 How v Jones [1953] SASR 82 …. 14.2.11C Howard v Hamilton (1996) 16 WAR 292 …. 6.3.14, 6.3.25 — v Loney [1956] Tas SR 57 …. 7.7.26 — v Queensland [2001] 2 Qd R 154 …. 10.2.23 Howarth v Adey [1996] 2 VR 535 …. 3.2.24 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWSC 1312 …. 14.1.5 — v — (No 2) (2011) 256 FLR 156 …. 14.6.2

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Hoyts Pty Ltd v Burns (2003) 201 ALR 470 …. 3.1.31, 7.5.14, 17.6.12 Hribar v Wells (1995) 64 SASR 129 …. 4.3.18 Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 8) [2014] VSC 567 …. 2.6.27 Hughes v Lord Advocate [1963] AC 837 …. 4.3.35, 4.3.36, 4.3.51, 4.3.57 — v Percival (1883) 8 App Cas 443 …. 17.6.1C Humberstone v Northern Timber Mills (1949) 79 CLR 389 …. 17.2.2C Humphries v Poljak [1992] 2 VR 129 …. 1.4.14 Hunt v Severs [1993] QB 815 …. 8.2.32 — v — [1994] 2 AC 350 …. 8.2.29C, 8.2.30 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 …. 5.2.9, 8.1.1, 18.2.19, 18.2.21 Hunter v Canary Wharf Ltd [1997] AC 655; [1997] 2 All ER 426 …. 5.1.12, 11.6.2C, 14.1.3C, 14.1.12, 14.1.27, 14.5.3, 14.6.3 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 …. 13.2.24C, 13.2.25, 13.2.26, 13.2.27, 13.2.29, 13.2.36 Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; 314 ALR 505; 89 ALJR 39; [2014] HCA 44 …. 2.2.20, 2.2.21, 2.4.16C Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 …. 4.3.41, 4.3.47 — v Presland (2005) 63 NSWLR 22 …. 4.3.13, 4.3.29, 7.11.5 Husher v Husher (1999) 197 CLR 138 …. 8.2.18, 8.2.20 Hutchins v Maughan [1947] VLR 131; [1947] ALR 201 …. 11.1.9, 11.2.1C, 11.2.2 Hutt v Piggott Wood & Baker (Tas SC, Crawford J, 28 May 1993, unreported) …. 1.4.34 Hutton v RLX Operating Company Pty Ltd [2016] QSC 248 …. 15.2.1 Hyder v Commonwealth (2012) 217 A Crim R 571 …. 13.5.5 Hymowitz v Eli Lilly 539 NE 2d 1069 (1989) …. 15.3.7 Hynes v Hynes (2007) 15 VR 475 …. 1.1.27

I IBEB Pty Ltd v Duncan [2011] NSWCA 368 …. 18.2.21 Ibrahim v Davis [2013] VSCA 238 …. 2.5.4 Ilievska-Dieva v SGIO Insurance Ltd [2000] WASCA 161 …. 1.5.27 Ilkiw v Samuels [1963] 2 All ER 879 …. 17.3.4, 17.3.5 Illawarra Area Health Service v Dell [2005] NSWCA 381 …. 3.1.35, 7.8.11 Illiopoulos v Victorian Railways Board (1981) 36 ALR 507 …. 6.2.20 Ilvariy Pty Ltd t/as Craftsman Homes v Sijuk [2011] NSWCA 12 …. 7.5.10 Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647; 50 MVR 277; [2008] HCA 40 ….

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1.1.26, 1.2.4, 1.2.8, 3.1.6, 3.1.61, 3.2.8, 3.2.16, 3.2.31, 3.2.32C, 3.2.37, 3.2.39, 6.3.1, 6.3.24, 7.1.1, 7.1.5 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 …. 6.2.45, 6.3.18, 10.2.58 Inaya (Special Medical Procedure), Re (2007) 38 Fam LR 546 …. 13.2.47, 13.2.53 Indermaur v Dames (1866) LR 1 CP 274 …. 7.5.3C Ingham v Eames [1955] 2 QB 366 …. 7.3.7 Inglis v Metrolink Victoria Pty Ltd [2010] HCATrans 26 …. 4.3.58 Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd (1967) 69 SR (NSW) 311 …. 12.2.23 Ingot Capital Investments v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1 …. 16.1.11 Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641 …. 7.5.10, 8.3.11 — v — (2011) 243 CLR 149 …. 6.3.22, 6.3.29, 8.3.11, 15.3.2 Insurance Australia Ltd v HIH Casualty & General Insurance Ltd (in liq) (2007) 18 VR 528 …. 1.1.22 Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 …. 1.1.27 — v Kightly (2005) 225 ALR 380 …. 8.2.52 Insurance Commissioner v Joyce (1948) 77 CLR 39 …. 3.2.32C, 6.3.4C, 6.3.24, 6.3.25 Interchase Corporation Ltd v ACN 010 087 573 Pty Ltd [2003] 1 Qd R 26 …. 16.2.16, 16.2.28 Iqbal v Prison Officers Association [2010] QB 732 …. 11.5.15, 11.5.22 Ira S Bushey & Sons, Inc v United States 398 F 2d 167 (1968) …. 17.2.2C Irvin v Whitrod (No 2) [1978] Qd R 271 …. 17.3.24 Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 …. 1.4.8 Copyright © 2017. LexisNexis Butterworths. All rights reserved.

J J & V Pesl v Ray Smith Tractors (2007) Aust Torts Reports 81-883 …. 3.1.13 J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 …. 18.2.18 Jaber v Rockdale City Council (2008) Aust Torts Reports 81-952 …. 6.3.22 Jackson v Harrison (1978) 138 CLR 438 …. 2.6.9, 7.11.4 — v Lithgow City Council [2008] NSWCA 312 …. 6.2.57 — v Murray [2015] 2 All ER 805; [2015] UKSC 5 …. 6.2.51 Jacobi v Griffiths [1999] 2 SCR 570 …. 17.3.16, 17.3.18C Jacobs v Varley (1976) 9 ALR 219 …. 9.2.15 Jacques v Matthews [1961] SASR 205 …. 4.3.19 Jaensch v Coffey (1984) 155 CLR 549 …. 2.1.1, 2.1.3, 2.3.4, 2.6.6, 7.7.4, 7.10.9, 7.10.12, 8.2.53

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Jain v Trent Strategic HA [2009] UKHL 4; [2009] 1 AC 853 …. 16.1.10 James v Hill [2004] NSWCA 301 …. 16.2.2 — v Wellington CC [1972] NZLR 978 …. 15.2.21 James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 …. 9.1.8 — v Roberts (1999) 47 NSWLR 425 …. 8.2.24 — v Seltsam Pty Ltd (1998) 196 CLR 53 …. 18.2.1, 18.2.2, 18.2.6, 18.2.9 Jane, Re (1988) 85 ALR 409 …. 13.2.46 Janvier v Sweeney [1919] 2 KB 316 …. 11.6.2C, 11.6.3C, 11.6.5C, 12.5.1C Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 …. 7.4.2C Jeffrey v Honig [1999] VSC 337 …. 14.1.14 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558 …. 14.1.25 Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226 …. 17.5.11 JGE v English Province of Our Lady of Charity & Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] 1 All ER 723 …. 17.5.7 — v The Portsmouth Roman Catholic Diocesan Trust [2013] 1 QB 722 …. 17.1.6, 17.2.6, 17.2.13, 17.5.8 Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341 …. 7.7.11C, 14.2.11C Jobling v Associated Dairies Ltd [1982] AC 794 …. 4.2.32, 4.3.22, 4.3.24, 4.3.25 Joel v Morison (1834) 6 Car & P 502 …. 17.3.9 John v Federal Commissioner of Taxation (1989) 166 CLR 417; [1989] HCA 5 …. 17.6.11 John Lewis & Co Ltd v Tims [1952] AC 676 …. 13.5.6, 13.5.8C John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 …. 4.2.6, 10.2.52 — v Rogerson (2000) 203 CLR 503 …. 1.1.31 John Summers & Sons Ltd v Frost [1955] AC 740 …. 10.2.39 Johnson v Buchanan (2012) 223 A Crim R 132; [2012] VSC 195 …. 12.2.2, 15.2.15, 15.2.26, 15.2.28 — v Director-General of Social Welfare (Vic) (1976) 135 CLR 92 …. 13.2.44 — v Perez (1988) 166 CLR 351 …. 5.1.13, 8.3.8, 9.1.2 — v Staskos (2015) 48 WAR 349 …. 13.5.6 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports 81-692 …. 7.4.1, 16.3.9 Johnston v Frazer (1990) 21 NSWLR 89 …. 3.2.39 Johnstone v New South Wales (2010) 202 A Crim R 422 …. 13.5.6 Jolley v Sutton London Borough Council [2000] 1 WLR 1082 …. 2.3.10, 4.3.29 Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137; [2000] HCA 56 …. 2.5.2, 2.5.7C,

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17.6.13 — v Boyce (1816) 1 Stark 493 …. 6.2.16C, 6.2.17 — v Dunkel (1959) 101 CLR 298 …. 3.4.6, 3.4.7 — v Gleeson [1966] ALR 235 …. 8.2.52 — v Great Western Railway Co (1930) 144 LT 194 …. 3.4.2C — v Kaney [2011] 2 AC 398 …. 2.6.21, 1.5.16 — v Linnett [1984] 1 Qd R 570 …. 15.2.11C — v Manchester Corp [1952] 2 QB 852 …. 3.2.37 — v Tsige [2012] ONCA 32 …. 11.6.12 Jonstan Pty Ltd v Nicholson (2003) 58 NSWLR 223 …. 1.5.25 Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; [2003] HCA 34 …. 3.2.5, 6.2.7C, 6.2.11, 6.2.12C, 6.2.14, 6.2.37, 6.2.46, 6.2.56, 6.3.25 JQJT and National Disability Insurance Agency [2016] AATA 478 …. 1.4.31 Jull v Wilson & Horton [1968] NZLR 88 …. 2.4.10, 7.3.10

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K K v Minister for Youth and Community Services [1982] 1 NSWLR 311 …. 13.2.45 Kakavas v Crown Ltd [2007] VSC 526 …. 16.3.5 — v Crown Melbourne Ltd [2009] VSC 559 …. 16.3.5 — v — [2012] VSCA 95 …. 16.3.5 — v — (2013) 250 CLR 392; [2013] HCA 25 …. 16.3.5 Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384 …. 6.2.26 — v — [1970] VR 502 …. 6.2.26 Kallouf v Middis [2008] NSWCA 61 …. 8.2.19 Kaplantzi v Pascoe (2003) 40 MVR 146 …. 9.2.18 Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 …. 4.3.47 Karatjas v Deakin University (2012) 35 VR 355 …. 4.3.12, 7.5.18 Kars v Kars (1996) 187 CLR 354; 141 ALR 37 …. 8.2.29C, 9.2.11 Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 …. 7.8.7 Kavanagh v Akhtar (1998) 45 NSWLR 588; [1998] NSWSC 779 …. 4.3.13, 4.3.37, 4.3.40, 4.3.47, 4.3.53C — v Commonwealth (1960) 103 CLR 547 …. 1.4.3 — v Gudge (1844) 7 Man & G 316 …. 13.2.3 Kaye v Robertson [1991] FSR 62 …. 12.3.6 Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738 …. 10.2.7, 10.2.31 Keddie v Stacks/Goudkamp Pty Ltd (2012) 293 ALR 764; [2012] NSWCA 254 …. 16.2.18

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Keefe v Marks (1989) 16 NSWLR 713 …. 2.6.18, 2.6.22 Kelly v Bega Valley County Council (unreported, 13 September 1982, NSW CA) …. 3.2.10, 6.2.30C Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 …. 12.3.1, 12.4.1C, 12.4.5, 12.4.6 Kemper v Gordon 272 SW 3d 146 (2008) …. 5.1.22 Kempsey Shire Council v Baguley [2010] NSWCA 284 …. 3.1.45 Kendirjian v Lepore [2015] NSWCA 132 …. 2.6.25 Kenn v Pickard (unreported, NSW SC, Magistrate Lulham, 16 September 2005) …. 8.3.6 Kennaway v Thompson [1981] 1 QB 88 …. 14.5.7 Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6; [2016] SLT 209 …. 10.2.36, 15.1.8 — v De Trafford [1897] AC 180 …. 17.5.2C Kennon v Kennon (1997) 139 FLR 118 …. 11.4.19 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 …. 16.2.32 Kent v Scattini [1961] WAR 74 …. 6.3.7C Kepa v Lessbrook Pty Ltd (in liq) (2012) 267 FLR 103 …. 9.2.13, 9.2.14 Khorasandjian v Bush [1993] QB 727 …. 11.6.5C, 14.1.3C, 14.1.8 Khoury v Sidhu [2011] FCA 857 …. 18.2.21 Kiddle v City Business Properties Ltd [1942] 2 All ER 216; [1942] 1 KB 269 …. 14.3.2C, 14.3.3 Kidman v Page [1959] Qd R 53 …. 14.2.3 Kinzett v McCourt (1999) 46 NSWLR 32 …. 1.2.6 Kilgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600 …. 3.4.13, 3.4.16 King v Philcox (2015) 255 CLR 304 …. 7.10.16 — v Phillips [1953] 1 QB 429 …. 4.3.27C, 4.3.51 Kings Cross Rent-a-Car Pty Ltd v Patty (1986) 3 MVR 339 …. 17.5.12 Kingsbury-Carr v Kiliman (2007) 47 MVR 522 …. 8.3.7 Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 …. 3.1.42, 10.2.43 Kirby v Centro Properties Ltd (No 6) [2012] FCA 650 …. 16.2.27 Kirth v Tyrrell [1971] Qd R 453 …. 17.1.7 Kirvek Management and Consulting Services Ltd v Attorney General of Trinidad and Tobago [2002] 1 WLR 2792 …. 10.2.12 Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 …. 16.2.2 Kliendienst v A Kliendienst and Sons [1959] SR (NSW) 150 …. 17.4.6

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K-Mart Australia Ltd v McCann [2004] NSWCA 283 …. 4.3.22, 4.3.24 Knapp v Railway Executive [1949] 2 All ER 508 …. 10.2.29 Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 …. 3.4.10, 4.2.1C Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 …. 1.8.3, 2.5.14, 3.1.36, 6.3.17, 7.1.1, 7.2.3, 7.8.14, 7.10.11, 7.8.14, 11.6.2C Kolizos v Australian National Railways Commission (1980) 25 SASR 146 …. 3.1.72 Kondis v State Transport Authority (1984) 154 CLR 672 …. 7.8.7, 17.2.11, 17.6.1C, 17.6.4, 17.6.5, 17.6.6, 17.6.16C Konskier v B Goodman Ltd [1928] 1 KB 421; [1927] All ER Rep 187 …. 12.2.7C Koursk, The [1924] P 140 …. 13.5.8C, 18.1.1 Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205 …. 16.2.18 Knauer v Ministry of Justice [2016] AC 908 …. 9.2.13 Kraemers v Attorney-General (Tas) [1966] Tas SR 113 …. 14.2.1, 14.3.13C, 14.3.15 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 353 …. 16.2.2 Kriz v King [2007] 1 Qd R 327 …. 8.2.33 Kruber v Grzesiak [1963] VR 621 …. 11.3.5 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 …. 3.1.59, 3.1.65 Kuru v New South Wales (2008) 236 CLR 1 …. 12.1.5, 12.2.13, 13.3.10, 13.5.1 Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 & 5) [2002] 2 AC 883 …. 4.3.3 Kyogle Shire Council v Francis (1988) 13 NSWLR 396 …. 16.2.34

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L L v Commonwealth of Australia (1976) 10 ALR 269 …. 2.6.47 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 …. 16.2.10, 16.2.15 Lackersteen v Jo (1988) 92 FLR 6 …. 17.3.26 Lade & Co Pty Ltd v Black [2007] QSC 385 …. 15.2.1 Laferrière v Lawson [1991] 1 SCR 541 …. 5.1.16C Lafranchi v Transport Accident Commission (2006) 14 VR 359 …. 3.4.12 Lagden v O’Connor [2004] 1 AC 1067 …. 4.3.45 Lake v Taggart (1978) 1 SR (WA) 89 …. 15.2.4 Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188 …. 1.4.23, 8.1.13, 8.1.14C Lambert v Lastoplex Chemicals Co Ltd [1972] SCR 569 …. 2.4.9 — v Lewis [1982] AC 225 …. 7.3.5, 7.3.11, 16.2.15 — v Roberts (1980) 72 Cr App R 223 …. 12.2.9C Landon v Ferguson (2005) 64 NSWLR 131 …. 10.1.19

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Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42 …. 12.4.9 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 …. 1.5.6 Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6 …. 10.2.53 Lansdown v WTH Pty Ltd (1990) 10 MVR 355 …. 17.5.12 Laoulach v Ibrahim [2011] NSWCA 402 …. 6.3.22 Laresu Pty Ltd v Clark (2010) Aust Torts Reports 82-068 …. 3.1.3, 3.1.4, 7.5.7, 7.5.10 Larner v George Weston Foods Ltd [2014] VSCA 62 …. 7.8.14 Latter v Braddell (1881) 50 LJQB 448 …. 13.2.19 Laundess v Laundess (1994) 20 MVR 156 …. 7.3.11 Lauschet v Malaysian Airlines System Berhad [2015] NSWSC 1365 …. 15.1.6 Law Society v Sephton & Co (a firm) [2006] 2 AC 543 …. 5.2.9 Lawes v Nominal Defendant (2007) 48 MVR 125 …. 7.7.8 — v — [2008] 1 Qd R 369 …. 7.7.8 Lawrie v Meggitt (1974) 11 SASR 5 …. 18.2.14C Laws v Florinplace Ltd [1981] 1 All ER 659 …. 14.1.27 Le Lievre v Gould [1893] 1 QB 491 …. 2.2.5, 2.2.6, 2.2.7C, 2.2.17C, 16.2.4, 16.2.5C Leach v Nominal Defendant [2015] HCASL 55 …. 1.1.27 — v Nominal Defendant (QBE Insurance (Australia) Ltd) (2014) 67 MVR 494; [2014] NSWCA 257 …. 1.1.27, 1.4.25 League Against Cruel Sports Ltd v Scott [1986] QB 240 …. 11.3.8, 11.5.23, 12.2.2 Leahy v Beaumont (1981) 27 SASR 290 …. 3.2.17 Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 …. 14.2.15, 14.4.1C Leame v Bray (1803) 3 East 593 …. 11.2.1C Leask Timber & Hardware Pty Ltd v Thorne (1961) 106 CLR 33 …. 10.2.52 Lee v Carlton Crest (Sydney) Pty Ltd [2014] NSWSC 1280 …. 16.3.19 — v Yang (2006) 46 MVR 243 …. 1.1.33 Lee Transport Co Ltd v Watson (1940) 64 CLR 1 …. 1.3.3C Leeds Industrial Cooperation Society v Slack [1924] AC 851 …. 14.5.3 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200; [2007] HCA 6 …. 17.6.3, 17.6.16C — v — [2007] NSWCA 361 …. 15.2.1, 17.6.17 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 …. 2.5.5, 7.8.2 Lemmon v Webb [1895] AC 1 …. 14.5.1 Lenah Game Meats Pty Ltd v Australian Broadcasting Corporation (1999) 9 Tas R 355 …. 12.2.17

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Lenfield, Re (1993) Aust Torts Reports 81-222 …. 13.2.10 Leonard v Smith (1992) 27 NSWLR 5 …. 18.2.18 Lester-Travers v City of Frankston [1970] VR 2 …. 14.3.9C Letang v Cooper [1965] 1 QB 232 …. 11.3.7, 11.3.11, 11.5.23 Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48 …. 1.8.2, 7.2.1C, 7.2.2, 7.2.13, 7.3.1, 7.3.7 Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 …. 1.5.21, 1.5.25 Leyden v Caboolture Shire Council [2007] HCATrans 475 …. 6.3.20 — v — [2007] QCA 134 …. 6.3.20 Li v Deng (No 2) [2012] NSWSC 1245 …. 11.5.34 Liftronic Pty Ltd v Unver (2001) 179 ALR 321 …. 3.1.42, 6.2.29, 6.2.50, 7.8.10 Lim v Camden & Islington Area Health Authority [1979] QB 196 …. 8.2.9 — v — [1980] AC 174 …. 8.2.4, 8.2.9, 8.2.62 Limpus v London General Omnibus Co (1862) 1 H & C 526 …. 17.3.4 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 …. 8.1.11, 12.2.15C, 12.2.17, 12.5.4 Lindeman Ltd v Colvin (1946) 74 CLR 313 …. 4.3.17 Linsley v Petrie [1998] 1 VR 427 …. 1.1.29, 6.2.10 Lipman v Clendinnen (1932) 46 CLR 550 …. 7.5.1, 12.2.9C, 12.2.15C Lippiatt v South Gloucestershire Council [2000] QB 51 …. 14.2.16 Lippl v Haines (1989) 18 NSWLR 620 …. 12.5.1C Lisle v Brice (2001) 34 MVR 206 …. 9.2.9 — v — [2002] 2 Qd R 168 …. 1.1.35 Lister v Hesley Hall Ltd [2002] 1 AC 215 …. 17.3.1, 17.3.15, 17.3.17, 17.3.18C, 17.5.7, 17.6.16C — v Romford Ice & Cold Storage Co Ltd [1957] AC 555 …. 18.1.8, 18.1.9, 18.1.10, 18.1.11 Lithgow City Council v Jackson (2011) 244 CLR 352 …. 3.4.7, 4.2.11, 6.2.57 Little v Law Institute of Victoria (No 3) [1990] VR 257 …. 11.5.26, 11.5.34 Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 …. 7.5.14 Liverpool City Council v Laskar (2010) 77 NSWLR 666 …. 8.2.35 — v Millett (2004) 43 MVR 193 …. 2.5.11 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 …. 1.3.3C, 8.2.27 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 …. 8.1.11, 12.4.6, 12.4.7, 12.4.8, 12.5.4

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— v — (1990) 24 NSWLR 499 …. 12.4.6 Lloyd v Borg bht NSW Trustee and Guardian (2013) 84 NSWLR 652 …. 17.5.6 — v DPP [1992] 1 All ER 982 …. 12.5.7 — v Grace, Smith & Co [1912] AC 716 …. 17.3.4, 17.3.12C, 17.3.18C, 17.3.23 Lochgelly Iron and Coal Co Ltd v M’Mullen [1934] AC 1 …. 10.2.25 London Drugs Ltd v Kuehne & Nagel International Ltd [1992] 3 SCR 299 …. 18.1.9 London Passenger Transport Board v Upson [1949] AC 155 …. 10.1.2 Long v Darling Island Stevedoring & Lighterage Co Ltd [1956] SR (NSW) 137 …. 10.2.20C Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 …. 10.2.3 Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 …. 2.5.8, 7.5.14 Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 …. 7.4.2C Lord v McMahon [2015] NSWSC 1619 …. 12.2.8 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 …. 6.3.22, 6.3.27, 6.3.28 Lothian v Rickards (1911) 12 CLR 165 …. 4.3.11, 4.3.12 Lotter v Salmon Street Ltd [2006] VSC 495 …. 9.1.1C Louis v Commonwealth (1987) 87 FLR 277 …. 11.5.18C Louisville and Nashville Railroad Co v M/V Bayou Lacombe (1979) 597 F 2d 469 …. 16.1.8C Lowns v Woods (1996) Aust Torts Reports 81-376 …. 3.2.24, 7.9.9 Lubrano v The Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308 …. 10.2.10 Lubura v Nezirec (2013) 42 VR 43 …. 18.1.2 Luxton v Vines (1952) 85 CLR 352 …. 3.4.7 Lyle v Soc (2009) 38 WAR 418 …. 9.2.9 Lym International Pty Ltd v Marcolongo (2011) 15 BPR 29,465 …. 4.1.6, 4.2.10, 4.3.9, 14.1.25, 16.2.30, 18.2.17 Lynch v Knight (1861) 9 HLC 577 …. 4.3.53C — v Lynch (by her tutor Lynch) (1991) 25 NSWLR 411 …. 7.2.15, 7.2.16, 8.2.14

M M M & R Pty Ltd v Grills [2007] VSC 528 …. 2.6.23 McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 …. 6.3.5 McCahill v New York Transport Co 94 NE 616 (1911) …. 4.3.42 McCarty v Pheasant Run Inc 826 F 2d 1554 (1987) …. 3.1.14 McClelland v Symons [1951] VLR 157 …. 11.4.10 McClure v Commonwealth [1999] NSWCA 392 …. 17.3.9

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— v Commonwealth of Australia S214/1999 [2001] HCATrans 42 …. 17.3.9 McColl v Dionisatos (2002) Aust Torts Reports 81-652 …. 4.3.45 McCorquodale v Shell Oil Co of Australia Ltd (1932) 33 SR (NSW) 151 …. 12.2.15C McCoy v Watson (1976) 13 SASR 506 …. 4.3.42 McCracken v Melbourne Storm Rugby League Football Club Ltd (2007) Aust Torts Reports 81-925 …. 8.2.25, 11.4.5, 13.2.11 McDonald v Commonwealth (1945) 46 SR (NSW) 129 …. 17.2.10, 17.2.11, 17.2.12 — v Girkaid Pty Ltd (2004) Aust Torts Reports 81-768 …. 10.2.9, 10.2.42 — v National Grid Electricity Transmission plc [2015] AC 1128 …. 10.1.23 MacDonald v Public Trustee [2010] NSWSC 684 …. 8.1.12, 10.2.9 Maceachern v Pukekohe Borough [1965] NZLR 330 …. 10.2.9 McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 …. 11.5.10C — v — (2007) 20 VR 250; [2007] VSCA 289 …. 11.5.10C, 14.6.2 — v — [2008] HCATrans 213 …. 11.5.10C McFarlane v Tayside Health Board [2000] 2 AC 59 …. 7.2.17, 7.2.18C, 7.2.21 McGarrigle and National Disability Insurance Agency [2016] AATA 498 …. 1.4.31 McGhee v National Coal Board [1972] 3 All ER 1008 …. 4.2.13C, 4.2.18 McGrath v Chief Constable of the Royal Ulster Constabulary [2001] 2 AC 731 …. 13.5.3 — v Fairfield Municipal Council (1985) 156 CLR 672 …. 18.1.10 McGuirk v University of New South Wales [2009] NSWSC 1424 …. 7.8.16 McHale v Watson (1964) 111 CLR 384; [1965] ALR 788 …. 3.2.13C, 11.3.2, 11.3.5, 11.3.6C, 11.3.9, 11.3.12 — v — (1966) 115 CLR 199; [1966] ALR 513 …. 3.2.9C, 6.2.11, 6.2.30C, 6.2.34 MacIndoe v Parbery (1994) Aust Torts Reports 81-290 …. 16.2.18 MacIntosh v Lobel (1993) 30 NSWLR 441 …. 12.3.5, 12.5.5 McIntosh v Webster (1980) 43 FLR 112 …. 13.5.8C McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 …. 17.1.7 McKenna v Hunter & New England Local Health District [2013] NSWCA 476 …. 2.4.19, 2.4.20 McKenny v Foster [2008] EWCA Civ 173 …. 15.2.9 Mackenzie v Nominal Defendant (2005) 43 MVR 315 …. 6.2.41, 6.3.25 McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621; [1970] SC (HL) 20 …. 4.3.19, 18.2.14C Mackinnon v BlueScope Steel (AIS) Pty Ltd [2009] NSWCA 94 …. 7.10.11 McKinnon Industries Ltd v Walker [1951] 3 DLR 577 …. 14.1.24

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McKone v Wood (1831) 5 C & P 1 …. 15.2.17 McLaren v Bradstreet (1969) 113 Sol Jo 471 …. 4.3.41 McLean v Tedman (1984) 155 CLR 306; 56 ALR 359 …. 3.2.12, 6.2.25C, 7.8.1, 7.8.10, 7.8.11 Macleay Pty Ltd v Moore (1992) Aust Torts Reports 81-151 …. 6.3.27 Maclenan v Segar [1917] 2 KB 325 …. 7.5.13 McLoughlin v O’Brian [1983] 1 AC 410 …. 7.10.4C McMullin v ICI Australia Operations Pty Ltd (1997) 72 FCR 1 …. 5.1.12, 7.4.1 McNamara v Duncan (1971) 26 ALR 584 …. 3.2.40, 13.2.8C Macpherson v Beath (1975) 12 SASR 174 …. 11.4.16 — v Brown (1975) 12 SASR 184 …. 11.4.13C McPherson v Whitfield [1996] 1 Qd R 474 …. 6.3.14, 6.3.25 McPherson’s Ltd v Eaton (2005) 65 NSWLR 187 …. 2.5.5, 7.3.7, 7.3.11 McQuire v Western Morning News Co Ltd [1903] 2 KB 100 …. 3.2.1 McRae v Stevens (1996) Aust Torts Reports 81-405 …. 2.6.18 McTear v Imperial Tobacco Ltd [2005] ScotCS CSOH 69 …. 6.3.5 McVicar v S & J White Pty Ltd (2007) 97 SASR 160 …. 10.1.16 McWilliams v Sir William Arrol & Co Ltd [1962] 1 All ER 623 …. 10.2.51 Maga v Archbishop of Birmingham [2010] All ER (D) 141; [2010] 1 WLR 1441 …. 17.3.21 Magill v Magill (2006) 226 CLR 551 …. 11.6.2C, 11.6.3C, 16.2.3 Maguire v Union Steamship Co of NZ (1920) 27 CLR 570 …. 1.4.1 Maher-Smith v Gaw [1969] VR 371 …. 3.3.1 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722 …. 4.3.21, 4.3.53C, 8.1.1, 16.2.31, 18.2.14C Maitland v Raisbeck [1944] KB 689 …. 14.6.7 Majindi v Northern Territory of Australia (2012) 31 NTLR 150 …. 8.1.9 Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224 …. 10.2.24, 17.4.5 Makawe Pty Ltd v Randwick City Council (2009) 171 LGERA 165 …. 7.6.9, 16.3.19 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 …. 4.3.23, 5.1.13, 5.1.16C, 8.2.42, 8.2.44 Maleverer v Spinke (1538) 1 Dyer 35b …. 13.3.10 Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 …. 10.2.2C, 10.2.9 Malone v Laskey [1907] 2 KB 141 …. 14.1.3C Manchester Airport Plc v Dutton [2000] QB 133 …. 12.3.3 Manchester Corporation v Farnworth [1930] AC 171 …. 14.2.5, 14.3.9C, 14.3.11 Manley v Alexander (2005) 223 ALR 228 …. 3.1.31, 3.3.11, 3.4.4, 6.2.23, 6.2.49

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Mann v O’Neill (1997) 191 CLR 204 …. 1.5.16 Manser v Spry (1994) 181 CLR 428 …. 8.2.48 Mansfield v Great Lakes Council (2016) 77 MVR 252 (NSW CA) …. 7.6.16 Manwelland Pty Ltd v Dames & Moore Pty Ltd [2001] ATPR 41-845 …. 16.2.31, 16.2.34 Mapling v Jones (1865) 11 HLC 290 …. 14.1.26C Marc Rich & Co AG v Bishop Rock Marine Co Ltd ‘The Nicholas H’ [1996] AC 211 …. 1.2.5, 16.2.14 March v Stramare Pty Ltd (1991) 171 CLR 506 …. 2.4.7, 2.6.3, 3.1.31, 4.1.3, 4.1.5, 4.1.6, 4.1.7, 4.2.5, 4.2.24, 4.2.31, 4.3.12, 4.3.17, 4.3.19, 4.3.53C, 6.2.2, 6.2.22, 6.2.39 Marcic v Thames Water Utilities Ltd [2002] QB 929 …. 14.2.5 — v — [2004] 2 AC 42 …. 14.3.7 Marien v Gardiner (2013) 66 MVR 1; [2013] NSWCA 396 …. 6.2.51 Mark Stannard (t/as Wyvern Tyres) v Gore [2013] Env LR 10 …. 15.1.2 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 …. 16.2.34 Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496 …. 2.4.13 Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 …. 14.1.9, 14.1.22C, 16.3.7 — v — [2016] HCATrans 22 …. 14.1.21, 16.3.7 Marshall v Gotham Co Ltd [1954] AC 360 …. 10.2.41 — v Watson (1972) 124 CLR 640 …. 11.5.3 — v Whittaker’s Building Supply Co (1963) 109 CLR 210 …. 17.2.2C, 17.2.7 Marsland v Andjelic (1993) 31 NSWLR 162 …. 8.2.42 Martin v Isbard (1946) 48 WALR 52 …. 18.2.14C — v Thorn Lighting Industries Pty Ltd [1978] WAR 10 …. 7.3.6 — v Watson [1996] AC 74 …. 11.5.30 Martin’s Camera Corner Pty Ltd v Hotel Mayfair [1976] 2 NSWLR 15 …. 14.3.3 Mason v Clarke [1955] AC 778 …. 12.3.2 Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 …. 17.2.4 Massey-Harris-Ferguson (Manufacturing) Ltd v Piper [1956] 2 QB 396 …. 10.2.28 Mastaglia v Burns (2006) 32 WAR 427 …. 8.2.20 Master Builders’ Association of New South Wales, Ex parte [1971] 1 NSWLR 655 …. 1.4.7 Masterwood Pty Ltd v Far North Queensland Electricity Board (1997) Aust Torts Reports 81-443 …. 3.1.44 Mathieson v Workers’ Compensation Board (Qld) [1990] 2 Qd R 57 …. 1.5.24 Matsuyama v Birnbaum (2008) 890 NE 2d 819 …. 5.1.16C, 5.1.22, 5.1.24 Matthews v SPI Electricity Pty Ltd (Ruling No 2) [2011] VSC 168 …. 10.2.12 — v SPI Electricity Pty Ltd (Ruling No 31) (2013) 42 VR 513 …. 12.2.19, 13.5.10

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Matton Developments Pty Ltd v CGU Insurance Ltd (No 2) [2015] QSC 72 …. 10.2.1 Mauro Taxi Services Pty Ltd v Israport (Sales) Pty Ltd (1990) 12 MVR 147 …. 17.5.12 May v Transport Accident Commission [1989] VR 981 …. 1.4.15 Mayfair Ltd v Pears [1987] 1 NZLR 459 …. 12.2.2, 12.5.1C Meadow v General Medical Council [2007] QB 462 …. 1.5.16 Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 …. 3.1.12 Mediana, The [1900] AC 113 …. 8.3.12 Medlin v State Government Insurance Commission (1995) 182 CLR 1 …. 4.3.13, 16.2.30 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 …. 15.3.3 — v — [2003] HCATrans 496 …. 7.4.2C Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 …. 11.5.18C Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 12 BPR 23,743; [2006] NSWCA 31 …. 14.2.5, 14.2.12, 14.3.6, 14.3.11 Mellare v United Pacific Industries Ltd [2014] NSWSC 162 …. 15.3.4 Mercer v Commissioner for Road Transport & Tramways (NSW) (1936) 56 CLR 580 …. 3.1.69, 3.1.71 Mercieca v SPI Electricity Pty Ltd [2012] VSC 204 …. 7.4.5 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145 …. 4.2.20, 15.3.3 Merest v Harvey (1814) 5 Taunt 442 …. 8.1.14C Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd [1947] AC 1 …. 17.2.11 Meshlawn Pty Ltd v Queensland [2010] HCATrans 300 …. 16.3.20 — v — [2010] QCA 181 …. 16.3.20 Metal Roofing & Cladding Pty Ltd v Eire Pty Ltd (1999) 9 NTLR 82 …. 16.3.3 Metrolink Victoria Pty Ltd v Inglis (2009) 25 VR 633 …. 4.3.58, 16.1.2 Metropolitan District Asylum Comrs v Hill (1881) 6 App Cas 193 …. 14.3.9C Metropolitan Fire and Emergency Services Board v Yarra City Council [2015] VSC 773 …. 10.2.12 Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 …. 3.1.7 Meyer v Cool Chilli Pty Ltd (2015) 302 FLR 407 …. 10.1.23 Michael v Chief Constable of South Wales Police [2015] AC 1732 …. 2.6.37 Mickelberg v State of Western Australia [2007] WASC 140 …. 17.3.25, 17.3.26 Midalco Pty Ltd v Rabenalt [1989] VR 461 …. 8.1.12 Middleton v Melbourne Tramway & Omnibus Co Ltd (1913) 16 CLR 572 …. 4.2.29

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— v State of Western Australia (1992) 8 WAR 256 …. 17.3.25 Midland Metals Overseas Pty Ltd v The Christchurch Press Co Ltd [2002] 2 NZLR 289 …. 16.2.20 Mikaera v Newman Transport Pty Ltd (2013) 65 MVR 578; [2013] NSWCA 464 …. 6.2.39 Miletic v Capital Territory Health Commission (1995) 130 ALR 591 …. 3.1.31, 3.1.37 Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369 …. 5.1.7 Miller v Jackson [1977] QB 966; [1977] 3 All ER 338 …. 14.3.16C, 14.5.7 — v Miller (2011) 242 CLR 446 …. 2.1.4, 2.2.20, 2.6.2, 2.6.8, 2.6.9, 6.2.31, 7.11.2, 7.11.3, 7.11.4, 10.1.7 Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd (The Wagon Mound (No 2) [1963] SR (NSW) 948 …. 4.3.31 Millington v Wilkie (2005) 62 NSWLR 322; [2005] NSWCA 45 …. 10.2.47C — v — [2005] HCA Trans 778 …. 10.2.47C Mills v Sheahan [2007] SASC 365 …. 16.3.10 Minchillo v Ford Motor Co of Australia [1995] 2 VR 594 …. 16.3.18 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 …. 2.3.9 Minister for Health v AS (2004) 29 WAR 517 …. 13.2.45 Mint v Good [1951] 1 KB 517 …. 14.6.4C Mirvahedy v Henly [2003] 2 AC 491 …. 15.2.9 Mitchell v Latrobe Regional Hospital [2016] VSCA 342 …. 1.1.32 — v Tsiros (No 2) [1982] VR 301 …. 14.6.7 Mitchell Morgan Nominees Pty Ltd v Vella (2011) 16 BPR 30,189 …. 18.2.21 MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 6) (2011) 185 LGERA 276 …. 16.3.20 Mobbs v Kain (2009) 54 MVR 179 …. 4.3.17 Mobilio v Balliotis [1998] 3 VR 833 …. 1.4.14 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61 …. 1.4.6, 2.1.3, 2.1.4, 2.5.5, 2.5.13, 4.2.4, 4.3.12, 4.3.36, 7.1.6, 7.5.16C, 7.7.27 Mogul Steamship Co v McGregor, Gow & Co (1889) 23 QBD 598 …. 1.5.11 Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 …. 1.5.11 Mohamud v WM Morrison Supermarkets plc [2016] AC 677 …. 17.3.15, 17.3.18C Moll v Butler (1985) 4 NSWLR 231 …. 1.5.18 Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 …. 4.1.4

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Monie v Commonwealth of Australia [2007] NSWCA 230 …. 6.3.10 Monis v R (2013) 249 CLR 92 …. 13.5.10 Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 …. 14.2.7, 14.2.9, 14.6.8 — v — [1987] VR 147 …. 14.2.7 Montgomery v Lanarkshire Health Board [2015] AC 1430 …. 1.8.6, 3.2.26, 7.9.5, 7.9.8 Montreal v Montreal Locomotive Works [1947] 1 DLR 161 …. 17.2.5 Montreal Tramways v Leveille [1933] 4 DLR 337 …. 7.2.15 Moon v Whitehead [2014] ACTCA 16 …. 1.7.4, 11.4.29 — v — (2015) 10 ACTLR 309 …. 11.4.29, 13.2.5 — v — (No 2) [2015] ACTCA 41 …. 11.4.29 Moorabool Shire Council v Taitapanui (2006) 14 VR 55 …. 16.3.19 Moore v Lambeth County Court Registrar (No 2) [1970] 1 QB 560 …. 11.3.13 — v Woodforth (2003) Aust Torts Reports 81-686 …. 6.3.10 Morawski v State Rail Authority (NSW) (1988) 14 NSWLR 374 …. 7.5.14 Morgan v Khyatt [1964] NZLR 666 …. 14.2.14 — v Kittochside Nominees Pty Ltd (2002) 117 IR 152 …. 17.2.14 — v Pearson (1979) 22 SASR 5 …. 3.1.55 Morison v Peck (1992) Aust Torts Reports 81-183 …. 7.3.4 Morris v Beardmore [1981] AC 446 …. 12.1.4C, 12.2.9C — v C W Martin & Sons Ltd [1966] 1 QB 716 …. 7.7.17, 17.3.9, 17.3.10, 17.3.18C, 17.3.23, 17.4.6, 17.6.14 — v Ford Motor Co Ltd [1973] QB 792 …. 18.1.11 — v Marsden [1952] 1 All ER 925 …. 11.3.15 Morrison v Sarkis [2014] HCATrans 58 …. 15.2.27 Morrison Sports Ltd v Scottish Power UK plc [2010] SLT 1027 …. 10.2.27 Morton v William Dixon Ltd [1909] SC 807 …. 7.8.5C Moss and Hannell v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2007] HCATrans 626 …. 2.3.16 Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 …. 8.1.3 Motor Accidents Insurance Board v Haines (1995) 21 MVR 489 …. 1.4.18 Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55 …. 6.3.29, 15.3.2 Mount Isa Mines Ltd v Bates [1972–3] ALR 635 …. 4.3.12 — v Pusey (1970) 125 CLR 383 …. 2.3.9, 2.6.6, 3.2.8, 4.3.48, 4.3.49, 4.3.50, 4.3.57, 7.10.3, 7.10.4C Moyne Shire Council v Pearce (2004) 136 LGERA 434 …. 2.5.11

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Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 …. 10.2.10, 10.2.23 — v Ministry of Defence [1996] QB 732 …. 2.6.41 Mullen v Barr & Co [1929] SC 461 …. 2.2.7C Muller v Lalic [2000] NSWCA 50 …. 7.7.31 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 …. 3.1.14, 3.2.4 Multari v Amaca Pty Ltd [2014] VSC 277 …. 9.1.6 Multiple Claimants v The Ministry of Defence [2003] EWHC 1134 …. 2.6.44 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 …. 10.2.28 Mundy v Government Insurance Office of New South Wales (unreported, NSW SC, Spender AJ, 5 June 1995) …. 1.3.6, 8.2.4, 8.2.5 Mungis (No 2) Pty Ltd v Still [2011] NSWCA 261 …. 3.1.2 Municipal Tramways Trust v Ashby [1951] SASR 61 …. 6.2.20 Munnings v Australian Government Solicitor (1994) 118 ALR 385 …. 5.1.1 — v — (No 2) (1994) 120 ALR 586 …. 5.1.1 Munro v Southern Dairies Ltd [1955] VLR 332 …. 14.1.11C, 14.1.22C, 14.5.4 Muoio v MacGillivray [1964] QWN 21 …. 4.3.22 Murdoch v Glacier Metal Co Ltd [1998] Env LR 732 …. 14.1.18 Murison v Nominal Defendant [2012] QSC 221 …. 1.1.31 Murphy v Brown (1985) 1 NSWLR 131 …. 8.3.6 — v Culhane [1977] QB 94 …. 13.4.5 — v Furka (2000) 31 MVR 117 …. 6.2.23 Murray v Harringay Arena Ltd [1951] 2 KB 529 …. 6.3.20 — v McMurchy [1949] 2 DLR 442 …. 7.9.4, 11.3.13, 13.2.17, 13.3.5, 13.3.6 — v Ministry of Defence [1988] 1 WLR 692 …. 11.5.18C — v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 …. 3.3.11 — v Whiting [2002] QSC 257 …. 7.2.19 Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1971] AC 793 …. 16.2.9, 16.2.10, 16.2.11, 16.2.15, 16.2.17 Mutual Life Ltd v Evatt [1971] AC 793 …. 3.2.20C Mye v Peters (1967) 68 SR (NSW) 298 …. 6.2.30C Myer Stores Ltd v Soo [1991] 2 VR 597 …. 11.5.1, 11.5.19C, 11.5.21, 13.5.8C

N N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2013] NSWSC 309 …. 14.2.1, 17.6.20, 18.1.2 NA v Nottinghamshire County Council [2016] QB 739 …. 17.1.5, 17.6.11

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Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 …. 4.3.28, 4.3.35, 4.3.40, 4.3.41, 4.3.53C, 4.3.57 Nagle v Rottnest Island Authority (1993) 177 CLR 423 …. 7.6.2 Najdovski v Crnojlovic (2008) 72 NSWLR 728 …. 8.2.23 Nalder v Commissioner for Railways [1983] Qd R 620 …. 10.2.9, 14.3.10 Napier v Pressdram Ltd [2010] 1 WLR 934; [2009] EWCA Civ 443 …. 11.6.5C Nathan v Dollars & Sense Finance Ltd [2008] 2 NZLR 557 …. 17.5.6 — v Vos [1970] SASR 455 …. 18.2.13 National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861 …. 11.3.6C National Commercial Banking Corporation of Australia Ltd v Batty (1986) 160 CLR 251 …. 17.1.4 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 …. 8.2.47, 8.2.48, 8.2.52, 8.3.10 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 …. 7.10.11, 11.4.5, 11.6.2C, 11.6.3C Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 …. 18.2.6, 18.2.11 Naxakis v Western General Hospital (1999) 197 CLR 269 …. 3.2.21, 3.2.24, 5.1.16C, 5.1.17 Neal v Ambulance Service of New South Wales (2008) Aust Torts Reports 81-988 …. 2.7.4, 4.2.9 Neill v Fallon (1995) Aust Torts Reports 81-321 …. 6.3.28 — v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 …. 3.1.42 Neindorf v Junkovic (2005) 222 ALR 631 …. 2.5.4, 3.1.31, 3.2.4, 7.5.9, 7.5.10 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 …. 3.1.59 Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 …. 3.1.4 Nesterczuk v Mortimore (1965) 115 CLR 140 …. 3.4.13, 3.4.15 Nettleship v Weston [1971] 2 QB 691 …. 3.1.61, 3.2.32C Network Rail Infrastructure Ltd v Conarken Group Ltd [2012] 1 All ER (Comm) 692 …. 4.3.58, 16.1.2 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 …. 10.2.47C New South Wales v Abed (2014) 246 A Crim R 549 …. 13.5.6 — v Ball (2007) 69 NSWLR 463 …. 10.1.19 — v Briggs [2016] NSWCA 344 …. 2.5.12, 4.3.50, 7.8.15, 7.10.11 — v Bujdoso (2005) 227 CLR 1 …. 3.1.37, 4.3.12, 7.5.17 — v — (2007) 69 NSWLR 302 …. 17.4.11 — v Burton (2006) Aust Torts Reports 81-826; 3 DDCR 398 …. 5.1.20

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— v Corbett (2007) 230 CLR 606 …. 12.1.5 — v Corby (2010) 76 NSWLR 439 …. 8.1.11, 11.4.5 — v Delly (2007) 70 NSWLR 125 …. 8.1.10, 8.1.11, 13.5.6, 17.3.14, 17.3.26 — v — [2008] HCATrans 226 …. 13.5.6 — v Doherty [2011] NSWCA 225 …. 7.10.11 — v Eade [2006] NSWSC 84 …. 18.1.10 — v Fahy (2007) 232 CLR 486 …. 3.1.10, 3.1.14, 3.1.43, 3.1.49, 3.2.4, 7.2.3, 7.8.14 — v — [2008] NSWCA 34 …. 3.1.49, 6.3.17 — v Godfrey (2004) Aust Torts Reports 81-741 …. 2.4.14, 2.4.19 — v Ibbett (2005) 65 NSWLR 168 …. 11.4.5, 11.6.2C — v — (2006) 229 CLR 638; 231 ALR 485; [2006] HCA 57 …. 7.7.16, 8.1.6, 8.1.11, 8.1.17, 11.4.10, 12.1.4C, 17.3.14, 17.3.26, 17.4.5, 17.4.9 — v Jeffery (2000) Aust Torts Reports 81-580 …. 17.3.14 — v Kennelly [2001] NSWCA 71 …. 1.4.8 — v — (No 2) [2001] NSWCA 472 …. 1.4.8 — v Klein (2006) Aust Torts Reports 81-862 …. 2.6.35 — v Koumdjiev (2005) 63 NSWLR 353 …. 12.2.14 — v — [2006] HCA Trans 7 …. 12.2.14 — v Landini [2010] NSWCA 157 …. 17.3.25 — v Lepore (2003) 212 CLR 511 …. 11.6.2C, 17.3.4, 17.3.9, 17.3.10, 17.3.15, 17.3.17, 17.3.18C, 17.3.22, 17.3.23, 17.4.8, 17.5.2C, 17.6.10, 17.6.11, 17.6.16C — v McMaster (2015) 328 ALR 309; [2015] NSWCA 228 …. 7.11.7, 11.4.17, 13.3.11C, 13.4.2 — v Mannall [2005] NSWCA 367 …. 7.10.11 — v Moss (2000) 54 NSWLR 536 …. 8.2.17 — v Napier [2002] NSWCA 402 …. 7.5.17 — v Riley (2003) 57 NSWLR 496 …. 13.3.12, 13.4.5, 13.5.1, 13.5.6 — v Spearpoint [2009] NSWCA 233 …. 2.6.39 — v Stevens (2012) 82 NSWLR 106 …. 8.1.2, 8.1.3, 8.1.4 — v TD (2013) 83 NSWLR 566 …. 11.5.8 — v Tyszyk [2008] NSWCA 107 …. 7.7.7, 14.6.8 — v Williamson (2012) 248 CLR 417 …. 11.4.5 — v Zreika [2012] NSWCA 37 …. 8.1.6 New South Wales Department of Housing v Hume (2007) Aust Torts Reports 81-879 …. 2.5.10 New South Wales Insurance Ministerial Corp v Myers (1995) 21 MVR 295 …. 4.3.14

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— v Willis (1995) 35 NSWLR 668 …. 9.2.16 Newcrest Mining Ltd v Thornton (2012) 248 CLR 555 …. 18.1.1, 18.1.5, 18.2.2, 18.2.6, 18.2.11 Newington v Windeyer (1985) 3 NSWLR 555 …. 12.3.4C NF v State of Queensland [2005] QCA 110 …. 5.2.6 Nguyen v Cosmopolitan Homes NSW Pty Ltd [2008] NSWCA 246 …. 4.2.3 — v Nguyen (1990) 169 CLR 245 …. 8.2.29C, 9.2.15, 9.2.16 Nichols v Marsland (1875) LR 10 Ex 255 …. 15.2.24 Nicholson v Nicholson (1994) 35 NSWLR 308 …. 6.2.58 Nickells v Melbourne Corporation (1938) 59 CLR 219 …. 11.3.9 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 …. 10.2.45, 10.2.47C Nikolaidis v Satouris (2014) 317 ALR 761 …. 2.6.26 Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 394 …. 5.1.13 — v — [1988] VR 682 …. 5.1.13 Nilon v Bezzina [1988] 2 Qd R 420 …. 4.3.25, 8.2.17 Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 …. 10.2.43 NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270 …. 18.1.8 Nocton v Lord Ashburton [1914] AC 932 …. 16.1.8C, 16.2.4 Nominal Defendant v Green [2013] NSWCA 483 …. 6.2.52 — v Hawkins (2011) 58 MVR 362 …. 1.1.27, 1.4.25 — v Lane [2004] NSWCA 405 …. 8.2.17 — v Rooskov (2012) 60 MVR 350; [2012] NSWCA 43 …. 6.2.39, 6.2.58 Nominal Defendant (Qld) v Nilon (1988) 7 MVR 1 …. 4.3.25 — v Taylor (1982) 154 CLR 106 …. 1.1.31 Non-Marine Underwriters, Lloyd’s of London v Scalera [2000] 1 SCR 551 …. 13.2.6 Norberg v Wynrib [1992] 2 SCR 226 …. 13.2.19 Norman v Spiers (2004) 155 ACTR 8 …. 3.1.55 Norris v Routley [2015] NSWSC 1875 …. 9.2.19 — v — [2016] NSWSC 147 …. 9.2.19 — v Routley; Routley v Norris [2016] NSWCA 367 …. 9.2.19 North Shore City Council v Body Corporate 188529 (‘Sunset Terraces’) [2011] 2 NZLR 289 …. 16.3.19 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. 1.1.23, 1.1.25, 1.6.15, 2.5.6, 2.5.7C, 10.1.6, 17.6.13 Northern Territory of Australia v Mengel (1995) 185 CLR 307 …. 10.1.7, 11.5.3, 11.6.2C, 11.6.3C, 16.1.1

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Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685 …. 14.2.1 Norton Australasia Ltd v Streets Ice Cream Pty Ltd (1968) 120 CLR 635 …. 2.4.9 Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d) 221 …. 14.1.3C Norwich City Council v Harvey [1989] 2 All ER 1180 …. 6.3.31 Nova Mink Ltd v Trans Canada Airlines [1951] 2 DLR 241 …. 7.2.6 Novakovic v Stekovic [2012] NSWCA 54 …. 15.2.1 Noye v Robbins [2007] WASC 98 …. 11.5.34 NSW v Wenham [2016] NSWCA 336 …. 1.1.34 Nunan v Southern Railway Co [1924] 1 KB 223 …. 9.2.10 Nyang v G4S Care & Justice Services Ltd [2013] EWHC 3946 …. 17.6.8 Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1998] 1 All ER 305 …. 16.2.32

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O OBG Ltd v Allan [2008] 1 AC 1 …. 15.1.3 O’Brien v McKean (1968) 118 CLR 540 …. 8.2.37 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 …. 17.2.13, 17.3.24 O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 …. 7.8.10, 7.8.12 — v South Australia (1976) 14 SASR 187 …. 3.3.15 — v SP Bray Ltd (1937) 56 CLR 464 …. 10.1.6, 10.1.12, 10.1.15, 10.2.2C O’Dwyer v Leo Buring Pty Ltd [1966] WAR 67 …. 3.1.64C, 7.3.2 Ogwo v Taylor [1988] AC 431 …. 6.3.19 O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 …. 13.5.5 Ohlstein bht Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides (2006) Aust Torts Reports 81-866 …. 6.3.27 O’Keefe v Hickey [2008] IESC 72 …. 17.3.20 Oldham v Lawson (No 1) [1976] VR 654 …. 14.1.3C, 14.1.5, 14.5.3 Oliver v Ashman [1962] 2 QB 210 …. 9.1.3 Olutu v Home Office [1997] 1 WLR 328 …. 10.2.12, 11.3.14 On Call Interpreters & Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (2011) 279 ALR 341 …. 17.2.7 117 York Street Pty Ltd v Proprietors Strata Plan 16123 (1998) 43 NSWLR 504 …. 12.4.9 Onus v Telstra Corporation Ltd [2011] NSWSC 33 …. 14.1.12, 14.5.6, 14.6.3, 14.6.9 Opbroek bhnf Crittall v Australian Capital Territory (2016) 11 ACTLR 171 …. 7.2.12 Optus Administration Pty Ltd v Wright by his tutor Wright [2017] NSWCA 21 …. 7.5.18,

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7.10.17 Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 …. 6.3.10, 6.3.26 O’Rourke v Camden London Borough Council [1998] AC 188 …. 10.2.12 Osborne v Burnie Fire Brigade Board [1959] Tas SR 133 …. 10.2.9 — v Chocqueel [1896] 2 QB 109 …. 15.2.26 Ouwens v Ace Builders Pty Ltd (1989) 52 SASR 344 …. 16.2.18 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd; The Wagon Mound (No 2) [1967] 1 AC 617 …. 1.2.3, 2.3.9, 3.1.21C, 4.3.32, 14.2.2C, 14.3.16C, 14.4.1C, 14.4.4, 14.6.7 — v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1) [1961] AC 388; [1961] 1 All ER 404 …. 1.2.3, 3.1.30, 4.3.26, 4.3.27C, 4.3.32, 4.3.39, 4.3.41, 4.3.51, 4.3.53C, 4.3.57, 9.2.9, 14.4.1C Owners Corporation Strata Plan 65757 v MJA Group Pty Ltd [2011] NSWCA 236 …. 18.2.20S Owners of Dredger Liesbosch v Owners of Steamship Edison [1933] AC 449 …. 4.3.1, 4.3.45, 8.3.3 Owners Strata Plan 4085 v Mallone (2006) 12 BPR 23,691 …. 14.2.15 Owners Strata Plan 50276 v Thoo (2013) 17 BPR 33,789; [2013] NSWCA 270 …. 10.2.10 Owners Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 …. 14.2.9, 14.2.14

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P P v P (1994) 181 CLR 583 …. 13.2.48, 13.2.49, 13.2.52, 13.2.53 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 …. 7.8.2 Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108 …. 7.5.19 Paff v Speed (1961) 105 CLR 549 …. 8.2.11 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 …. 13.2.12 Palma v Nominal Defendant (2016) 74 MVR 411 …. 8.2.19 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 …. 4.3.3, 11.6.2C, 12.5.1C, 16.2.33 Palsgraf v Long Island Railway Co 248 NY 339; 162 NE 99 (1928) …. 1.5.13, 2.3.13 Pamment v Pawelski (1949) 79 CLR 406 …. 1.3.3C Panagiotopoulos v Rajendram (2007) AMLC 30-014 …. 2.3.6, 2.5.3, 7.10.10 Pantalone v Alaouie (1989) 18 NSWLR 119 …. 10.2.7, 10.2.26, 14.1.25 Papadimitropoulos v R (1957) 98 CLR 249 …. 13.2.16, 13.2.18 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 …. 3.2.1, 3.2.31, 7.5.3C, 7.5.8C

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Paramasivam v Flynn (1998) 90 FCR 489 …. 13.2.19 Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 …. 3.1.33C, 3.2.8, 7.2.3, 7.7.17, 7.8.1, 7.8.5C Park v Peach [1967] VR 558 …. 1.4.2 Parker v Commonwealth (1965) 112 CLR 295 …. 9.2.6C, 17.4.6, 17.4.9 — v S E Railway Co (1877) 2 CPD 416 …. 6.3.28, 11.5.11C — v South Australian Housing Trust (1986) 41 SASR 493 …. 2.5.6 Parkinson v St James and Seacroft University Hospital NHS Trust [2002] 2 QB 266 …. 7.2.19 Paron v Fry (No 1) [1990] 1 Qd R 539 …. 10.2.26 Parramatta City Council v Lutz (1988) 12 NSWLR 293 …. 7.6.9 Parry v Cleaver [1970] AC 1 …. 8.2.52 — v Woolworths Ltd [2010] 1 Qd R 1 …. 10.1.14 Partridge v Chick (1951) 84 CLR 611 …. 9.1.10 — v Ireland [2002] NSWSC 654 …. 15.2.28, 15.2.29 Pask v Owen [1987] 2 Qd R 421 …. 10.2.9 Pasley v Freeman (1789) 3 Term Rep 51 …. 16.2.4 Pasqualotto v Pasqualotto [2013] VSCA 21 …. 10.1.23 Patient Fay, Re [2016] NSWSC 624 …. 13.2.27, 13.2.36 Patrech v New South Wales [2009] NSWCA 118 …. 7.10.11 Patsuris v Gippsland and Southern Rural Water Corp [2016] VSCA 109 …. 14.3.15, 15.1.7 Paul v Cooke (2013) 85 NSWLR 167 …. 3.1.56, 3.1.57, 3.1.58 Pavlis v Wetherill Park Market Town Pty Ltd [2014] NSWCA 292 …. 18.1.8 Payne v Philaust Investments Pty Ltd [2002] NSWCA 295 …. 17.3.9 Peake v Steriline Manufacturing Pty Ltd (1988) Aust Torts Reports 80-154 …. 7.3.8, 7.8.8 Pearce v Hallett [1969] SASR 423 …. 13.4.1 Pearson Education Ltd v The Charter Partnership Ltd [2007] BLR 324 …. 2.4.2 Peden v Bortolazzo [2006] 2 Qd R 574 …. 14.2.4 Peek v Derry (1887) 37 Ch D 541 …. 16.1.5 — v Gurney (1871) LR 13 Eq 79 …. 16.1.8C Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 205 …. 11.1.11, 11.1.12 Pennington v Norris (1956) 96 CLR 10 …. 6.2.43C Penrith City Council v Parks [2004] NSWCA 201 …. 8.2.19 Percy v Central Financial Services Pty Ltd [2002] 1 Qd R 630 …. 10.1.14 — v Church of Scotland Board of National Mission (Scotland) [2006] 2 AC 28 …. 17.5.7 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA …. 2.2.20

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Performance Cars Ltd v Abraham [1962] 1 QB 33 …. 4.2.33, 4.2.34 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1 …. 15.3.2 Permanent Trustee Australia Ltd v Valeondis (2009) 105 SASR 458 …. 7.5.7, 17.5.6 Perpetual Trustee Co Ltd v CTC Group Pty Ltd [2012] NSWCA 252 …. 18.2.21 — v Milanex Pty Ltd (in liq) [2011] NSWCA 367 …. 18.2.21 Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36 …. 2.2.24, 5.1.16C, 7.1.2, 7.1.5, 14.1.22C, 16.1.6, 16.1.8C, 16.1.9, 16.1.11, 16.3.3, 16.3.4C, 16.3.10, 16.3.12C, 16.3.15 — v — [2004] FCA 881 …. 16.1.6, 16.3.4C Perry v Clissold [1907] AC 73 …. 12.3.4C — v Powercor Australia Ltd [2012] VSC 113 …. 3.1.44, 4.3.30, 7.4.5 Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1 …. 15.3.3 Pfizer Australia Pty Ltd v Probiotec Pharma Pty Ltd [2010] NSWSC 532 …. 18.2.21 Phelps v London Borough of Hillingdon [2001] 2 AC 619 …. 10.2.12 Philco Radio & Television Corp of GB Ltd v J Spurling Ltd [1949] 2 All ER 882 …. 4.3.16 Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 …. 6.3.5, 7.4.1 Philip Morris Ltd v Ainley [1975] VR 345 …. 1.5.25 Philip Morris USA v Williams 549 US 346 (2007) …. 8.1.16 Philips v William Whiteley Ltd [1938] 1 All ER 566 …. 3.2.38 Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 …. 10.2.4 Phillis v Daly (1988) 15 NSWLR 65 …. 3.1.16, 3.1.31 Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 …. 1.1.32 Phoenix Society Inc v Cavenagh (1996) 25 MVR 143 …. 17.3.3 Pibworth v Bevan M Roberts Pty Ltd (1994) 176 LSJS 39 …. 7.3.10 Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118 …. 10.2.7 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 …. 13.2.19, 16.2.29 Pinecot Pty Ltd v Anti-Discrimination Commissioner (2001) 165 FLR 25 …. 1.5.22 Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78 …. 17.4.3, 17.6.11 Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1 …. 5.2.7 Piro v W Foster & Co Ltd (1943) 68 CLR 313 …. 10.2.20C, 10.2.54, 10.2.55 Pitt v Baxter (2007) 34 WAR 102 …. 12.2.14 — v — [2007] HCA Trans 627 …. 12.2.14 Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 644 …. 4.3.12, 7.7.17 Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 …. 7.8.8

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Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 …. 1.5.22, 2.1.2 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 …. 8.2.56 Platt v Nutt (1988) 12 NSWLR 231 …. 11.3.2, 11.3.11, 11.5.23 Plenty v Dillon (1991) 171 CLR 635 …. 12.1.4C, 12.1.5, 12.5.1C, 13.2.3 — v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 …. 7.10.6 Podmore v Aquatours Pty Ltd [1984] 1 NSWLR 111 …. 3.1.72 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 …. 6.2.50 Polemis & Furness, Withy & Co Ltd, Re [1921] 3 KB 560 …. 2.3.13, 4.3.26, 4.3.27C, 4.3.51 Polestar Jowetts Ltd v Komori UK Ltd [2006] 4 All ER 294 …. 10.2.32 Police v Dafov (2008) 102 SASR 8 …. 12.1.5, 12.2.13 — v Greaves [1964] NZLR 295 …. 11.4.12C Politarhis v Westpac Banking Corp (2009) Aust Torts Reports 82-008 …. 2.6.15, 7.10.10 Polkinghorne v Holland (1934) 51 CLR 143 …. 17.1.4 Pollard v Trude [2009] 2 Qd R 248 …. 3.2.41, 6.3.2 — v Wilson [2010] NSWCA 68 …. 17.6.20 Polsue Alfieri Ltd v Rushmer [1907] AC 121 …. 14.1.16 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (2004) 140 FCR 445 …. 8.3.9 Portelli v Tabriska Pty Ltd (2009) Aust Torts Reports 81-994 …. 2.5.3, 7.5.19 Posthuma v Campbell (1984) 37 SASR 321 …. 7.7.20C, 15.2.28 Potter v Minahan (1908) 7 CLR 277 …. 13.5.10 Potts v Frost (2011) 59 MVR 267 …. 8.2.16 Pou v British American Tobacco (New Zealand) Ltd [2006] BCL 426 …. 6.3.5 Poulton’s Trustee in Bankruptcy v Ministry of Justice [2010] 4 All ER 600 …. 10.2.12 Povey v Qantas Airways Ltd (2005) 223 CLR 189 …. 1.4.24, 15.1.6 Powercor Australia Ltd v Thomas (2012) 43 VR 220; [2012] VSCA 87 …. 4.3.30, 8.3.1C Powney v Kerang and District Health (2014) 43 VR 506 …. 3.3.16, 4.2.11, 4.2.20 PQ v Australian Red Cross Society [1992] 1 VR 19 …. 3.1.70, 3.2.7 Pratt v Connolly (1994) Aust Torts Reports 81-283 …. 17.5.11 — v Pratt [1975] VR 378 …. 7.10.9 President of the Methodist Conference v Preston [2013] 2 AC 163 …. 17.5.7 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241 …. 7.11.7 Presland v Hunter Area Health Service [2003] NSWSC 754 …. 7.11.5 Preston v Star City Pty Ltd [1999] NSWSC 1273 …. 10.2.10

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Price v State of New South Wales [2011] NSWCA 341 …. 7.7.17 Pride of Derby & Derbyshire Angling Association Ltd v British Celanese Ltd [1952] 1 All ER 1326 …. 14.2.17 — v — [1953] Ch 149 …. 14.2.17 Priestley v Fowler (1837) 3 M & W 1 …. 6.1.5 Prince Alfred College Inc v ADC (2016) 335 ALR 1; 90 ALJR 1085; [2016] HCA 37 …. 5.2.6, 11.4.23, 17.1.1, 17.3.1, 17.3.15, 17.3.18C, 17.3.26, 17.4.8, 17.6.11 Pringle v Everingham (2006) 46 MVR 58 …. 18.1.2 Prior v New South Wales [1998] NSWSC 633 …. 17.3.14 Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports 81-397 …. 12.5.7 Progress and Properties Ltd v Craft (1976) 135 CLR 651 …. 10.2.23 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 …. 7.5.18 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 …. 14.2.14, 14.2.17, 14.3.18, 14.5.2 Proudman v Allen [1954] SASR 336 …. 13.3.15 Provender Millers (Winchester) Ltd v Southampton County Council (1940) Ch 131 …. 14.2.5, 14.3.11 Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 …. 16.2.18 Pryer v GIO (NSW) (1989) 10 MVR 83 …. 3.4.14 Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 …. 16.2.17 Punjab National Bank v De Boinville [1992] 3 All ER 104 …. 16.2.17 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 …. 7.7.16 Purcell v Watson (1979) 26 ALR 235 …. 6.2.22, 6.2.52 Purkess v Crittenden (1965) 114 CLR 164 …. 4.2.29, 4.3.23 Pyrenees Shire Council v Day [1997] 1 VR 218 …. 7.6.9 — v — (1998) 192 CLR 330 …. 7.6.3C, 7.6.5, 7.6.6, 7.6.9, 7.6.10, 10.1.7, 16.3.4C

Q Qantas Airways Ltd v Lisica (2007) Aust Torts Reports 81-929 …. 4.3.22 QBE Insurance (Australia) Ltd v Orcher [2013] NSWCA 478 …. 3.3.4, 7.5.19 — v Suncrop Metway Insurance Ltd [2012] NSWSC 835 …. 18.2.12 QBE Insurance Ltd v Nominal Defendant [2001] 1 Qd R 319 …. 18.2.6 Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 …. 3.3.14, 4.2.7, 7.8.1 Quarman v Burnett (1840) 6 M & W 499 …. 1.2.11, 17.3.2C Queensland v B [2008] 2 Qd R 562 …. 13.2.45 — v Commonwealth (1977) 139 CLR 585; [1977] HCA 60 …. 17.6.11

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— v Nolan [2002] 1 Qd R 454 …. 13.3.4 Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 …. 17.2.1 Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 …. 4.3.56 Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 …. 14.2.1 Quigley v Commonwealth (1981) 35 ALR 537 …. 4.2.7 Quilty v Bellambi Coal Co Pty Ltd (1966) 67 SR (NSW) 193 …. 10.2.28

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R R v ACR Roofing Pty Ltd (2004) 11 VR 187 …. 10.2.14 — v Banner [1970] VR 240 …. 13.5.8C — v Brown [1994] 1 AC 212 …. 13.2.13 — v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458 …. 12.5.5 — v Committee of the Lords of the Judicial Committee of the Privy Council acting for the Visitor of the University of London; Ex parte Vijayatunga [1988] QB 322 …. 2.6.28 — v Clune [1982] VR 1 …. 13.5.8C — v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 …. 10.2.2C, 10.2.3, 10.2.5, 10.2.12, 11.5.7 — v — [1992] 1 AC 146 …. 10.2.2C — v Everingham (1949) 66 WN (NSW) 122 …. 11.4.10 — v Gabriel (2004) 182 FLR 102 …. 11.4.14 — v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 …. 11.3.14, 11.5.3, 11.5.16 — v Imperial Tobacco Canada Ltd [2011] 3 SCR 45 …. 2.6.47, 7.6.5 — v Industrial Appeals Court; Ex parte Frieze [1963] VR 709 …. 18.1.10 — v Ireland [1998] AC 147 …. 11.4.15 — v Irvine (2009) 25 VR 75 …. 10.2.14 — v Knight (1988) 35 A Crim R 314 …. 11.4.15 — v Larsen & Lees [1984] VR 559 …. 13.5.8C — v Macquarie (1875) 13 SCR (NSW) 264 …. 11.5.9 — v Marsden (1868) LR 1 CCR 131 …. 12.2.9C — v Mersey Care NHS Trust; Ex parte Munjaz [2006] AC 148 …. 11.5.7 — v Phillips (1971) 45 ALJR 467 …. 11.4.13C — v Portelli (2004) 10 VR 259 …. 13.4.1 — v Pratt (1855) 4 El & Bl 860 …. 12.2.15C — v Rimmington [2006] 1 AC 459 …. 14.6.1

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— v Saskatchewan Wheat Pool [1983] 1 SCR 205 …. 10.1.20 R M Turton & Co Ltd (in liq) v Kerslake and Partners [2000] 3 NZLR 406 …. 16.3.10 R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 …. 13.5.4 R (on the Application of Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 …. 8.1.4 Rabone v Pennine Care NHS Trust [2012] 2 AC 72 …. 9.2.9 Rabbit v Roberts (1996) 67 SASR 358 …. 1.1.23, 7.7.19 Radcliffe v Ribble Motor Services Ltd [1939] AC 215 …. 6.1.5 Radovanovic v MVIT [1980] WAR 105 …. 3.4.14 Ragnelli v David Jones (Adelaide) Pty Ltd (2004) 90 SASR 233 …. 7.5.10 Rail Corp of New South Wales v Fluor Australia Pty Ltd (2009) Aust Torts Reports 82-038 …. 16.1.2 Raimondo v State of South Australia (1979) 23 ALR 513 …. 7.8.12 Rajski v Powell (1987) 11 NSWLR 522 …. 1.5.18 Rakich v Bounce Australia Pty Ltd [2016] VSCA 289 …. 15.3.2. Rambarran v Gurrucharran [1970] 1 All ER 749 …. 17.5.11 Ramsay v Pigram (1968) 118 CLR 271 …. 17.4.6, 17.5.10 Ramyel Pty Ltd v Hassell & Partners Pty Ltd (unreported, NSW SC, Giles J, 1 September 1989) …. 18.2.8 Rands v McNeil [1955] 1 QB 253 …. 15.2.18C, 15.2.21 Randwick City Council v Muzic [2006] NSWCA 66 …. 6.3.14, 7.5.12 Rankin v Gosford City Council (2015) 72 MVR 257 …. 4.3.11, 7.5.18 Raper v Bowden (2016) 76 MVR 369; [2016] TASSC 35 …. 8.2.39, 8.2.14 Rawlings v Till (1837) 3 M & W 28 …. 11.4.7C Readhead v Midland Railway Co (1869) LR 4 QB 379 …. 1.2.9, 1.2.10, 1.2.11 Redding v Lee (1983) 151 CLR 117 …. 8.2.48, 8.2.49, 8.3.10 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 …. 7.2.21 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 …. 4.3.12, 7.7.2C — v R (2013) 304 ALR 251 …. 13.2.16 Reffell v Surrey County Council [1964] 1 All ER 743 …. 10.2.9 Regan v Paul Properties Ltd [2007] Ch 135 …. 14.5.4 Reibl v Hughes [1980] 2 SCR 880 …. 13.2.6, 13.2.15 — v Hughes (1981) 114 DLR 1 …. 3.2.20C Reid v Rush & Tompkins Group Plc [1989] 3 All ER 228 …. 7.8.16 Reindel v James Hardie & Co Pty Ltd [1994] 1 VR 619 …. 8.1.11

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Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5 …. 16.3.10 — v — (No 2) [2008] NSWSC 187 …. 18.2.21 Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417 …. 16.2.34 Resurfice Corp v Hanke [2007] 1 SCR 333 …. 4.2.13C Revill v Newbery [1996] QB 567 …. 7.11.1 Reynolds v Clarke (1726) 1 Str 634 …. 11.2.3 — v Katoomba RSL All Services Club Ltd (2001) Aust Torts Reports 81-624 …. 16.3.5 Rhodes v OPO [2016] AC 219; [2015] 4 All ER 1; [2015] UKSC 32 …. 11.6.5C, 11.6.6 Richards v State of Victoria [1969] VR 136 …. 3.2.5, 4.3.51, 7.7.18 Rickard v Allianz Australia Insurance Ltd (2009) 54 MVR 214 …. 14.6.5, 14.6.8 Rickards v Lothian [1913] AC 263 …. 4.3.11 Ricketts v Laws (1988) 14 NSWLR 311 …. 3.2.35 Ridolfi v Hammond (No 2) [2012] NSWCA 67 …. 8.2.33 Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242 …. 13.3.11C Rigg v Alietta [1982] WAR 203 …. 15.2.28 Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports 81-231 …. 12.2.16 River Wear Commissioners v Adamson (1877) 2 App Cas 743 …. 1.2.10 Rivtow Marine Ltd v Washington Iron Works [1974] SCR 1189 …. 16.3.16 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98; [2001] NSWCA 265 …. 11.4.7C Roads and Maritime Services v Grant (2015) 70 MVR 520 …. 7.6.15, 7.6.16 Roads and Traffic Authority v Royal (2008) 245 ALR 653 …. 3.1.68, 3.3.7, 4.2.5, 4.2.17, 4.2.20 — v Ryan (2005) 62 NSWLR 609 …. 18.2.18 — v Scroop (1998) 28 MVR 233 …. 17.6.16C, 18.2.13 Roads and Traffic Authority of NSW v Chandler (2008) Aust Torts Reports 81-945 …. 2.5.12 — v Dederer (2007) 234 CLR 330; 238 ALR 761; [2007] HCA 42 …. 2.5.1, 2.5.13, 3.1.5, 3.1.16, 3.1.25C, 3.1.38, 3.1.59, 4.2.8 — v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 …. 3.1.2, 3.1.68, 7.5.18, 7.6.6, 7.6.13, 7.6.14, 7.6.15 Robbins v Skouboudis [2013] QSC 101 …. 6.2.55 Robertson v Swincer (1989) 52 SASR 356; 10 MVR 47 …. 1.1.25, 7.7.19, 7.7.20C Robins Dry Dock & Repair Co v Flint 275 US 303 (1927) …. 16.3.1 Robinson v Balmain New Ferry Co [1910] AC 295 …. 11.5.11C, 11.5.12C

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— v Kilvert (1889) 41 Ch D 88 …. 14.1.22C — v P E Jones (Contractors) Ltd [2012] QB 44 …. 16.2.17, 16.3.19 — v Post Office [1974] 1 WLR 1176 …. 4.3.40 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 …. 3.3.12 Robson v Hallett [1967] 2 QB 939 …. 12.2.9C — v Leischke (2008) 72 NSWLR 98 …. 14.2.1, 14.2.14 Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184 …. 3.3.9, 7.8.8 Rockdale City Council v Simmons (2015) 70 MVR 256 …. 7.6.16 Roe v Dabbs (2004) 31 BCLR (4th) 158 …. 7.2.21 — v Minister of Health [1954] 2 QB 66 …. 3.1.5, 3.1.60, 3.1.61, 17.6.8 — v Sheffield City Council [2004] QB 653 …. 10.2.9 Rogers v Brambles Australia Ltd [1998] 1 Qd R 212 …. 10.1.14 — v Nationwide News Pty Ltd (2003) 216 CLR 327 …. 3.2.23 — v Roche [2016] QCA 440 …. 1.1.32 — v Whitaker (1992) 175 CLR 479; 109 ALR 625; [1992] HCA 58 …. 3.1.71, 3.2.20C, 3.2.24, 4.3.5, 7.9.1, 7.9.4, 7.9.5, 7.9.7, 7.9.8, 13.2.15, 13.2.16, 13.2.24C Roggenkamp v Bennett (1950) 80 CLR 292 …. 6.3.4C Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 …. 16.3.10 Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; 216 ALR 415; [2005] HCA 31 …. 3.1.31, 3.1.47C Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 …. 3.1.16, 3.1.51, 7.5.15, 7.6.6, 7.6.19 Rondel v Worsley [1969] 1 AC 191 …. 2.6.20 Rookes v Barnard [1964] AC 1129 …. 8.1.8, 8.1.23 Rootes v Shelton (1967) 116 CLR 383 …. 3.2.40, 6.3.14 Rooty Hill RSL Club Ltd v Karimi (2009) Aust Torts Reports 81-992 …. 7.5.19 Rose v Ford [1937] AC 826 …. 8.2.58C, 8.2.61, 9.1.1C — v Plenty [1976] 1 All ER 97 …. 17.4.6 Rosenberg v Percival (2001) 205 CLR 434 …. 3.2.24, 3.2.26, 4.2.8, 4.2.9, 5.1.14, 7.9.3 Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768 …. 10.2.45, 10.2.47C — v Caunters [1980] Ch 297 …. 16.2.21C — v Vaughan [2016] NSWCA 188 …. 3.3.12 Rothwell v Chemical and Insulating Co Ltd [2008] 1 AC 281 …. 5.1.10 Rowan v Attorney-General [1997] 2 NZLR 559 …. 10.2.12 Rowe v Grunenthal GmbH [2011] VSC 657 …. 7.2.14

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— v McCartney [1976] 2 NSWLR 72 …. 4.3.49, 4.3.50, 4.3.52, 4.3.54, 4.3.55, 4.3.56, 4.3.57 Rowell v Alexander Mackie College of Advanced Education (1988) Aust Torts Reports 80183 …. 18.1.11 Rowling v Takaro Properties Ltd [1988] AC 473 …. 16.3.20 Royal v Smurthwaite (2007) 47 MVR 401 …. 3.1.68 Royal Alexandra Hospital for Children v J (2005) 33 Fam LR 448 …. 13.2.45 Rozsa v Samuels [1969] SASR 205 …. 11.4.12C Rudd v Hornsby Shire Council (1975) 31 LGRA 120 …. 14.2.5 Ruddock v Taylor (2003) 58 NSWLR 269 …. 11.5.19C — v — (2005) 222 CLR 612 …. 11.5.1, 11.5.3, 11.5.4, 11.5.19C, 13.5.1 Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 …. 11.2.2 Russell v Edwards (2006) 65 NSWLR 373 …. 6.2.57 — v Rail Infrastructure Corporation [2007] NSWSC 402 …. 6.2.14 Rust v Needham (1974) 9 SASR 510 …. 3.2.8 Ryan v Ann St Holdings Pty Ltd [2006] 2 Qd R 486 …. 17.3.22 — v Victoria (City) [1999] 1 SCR 201 …. 3.1.72, 14.3.6, 14.3.8 Rylands v Fletcher (1868) LR 3 HL 330 …. 1.2.11, 7.1.4, 14.4.1C, 15.1.1, 15.1.2, 15.1.5, 17.6.1C, 17.6.2

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S S v Attorney-General [2003] 3 NZLR 450 …. 17.1 — v Distillers Co (Biochemicals) Ltd [1969] 3 All ER 1412 …. 7.2.14 — v New South Wales [2009] NSWCA 164 …. 7.10.11 — v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 217 …. 17.6.20 — v Walsall Metropolitan BC [1985] 3 All ER 294 …. 17.1.5 Saad v Fares [2015] NSWCA 385 …. 15.2.31 Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552 …. 18.2.7 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 …. 13.5.10 Safari 4x4 Engineering Pty Ltd v Doncaster Motors Pty Ltd [2006] VSC 460 …. 15.1.3 Sahade v Bischoff [2015] NSWCA 418 …. 3.3.4, 7.11.7, 8.1.4, 11.4.17 Saif Ali v Sydney Mitchell & Co [1980] AC 198 …. 2.6.18, 3.2.20C St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666 …. 18.2.21 St George’s Healthcare NHS Trust v S [1999] Fam 26 …. 13.2.27 St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 …. 14.1.3C, 14.1.9 St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 …. 7.7.19, 7.7.25,

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18.2.12 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 …. 5.2.6 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 …. 16.2.12, 16.2.15, 16.2.16, 16.2.26 Sara v GIO of NSW [1969] 1 NSWR 20 …. 6.3.14 Saric v Tehan (2011) 33 VR 632 …. 8.3.10 Sarkis v Morrison [2013] NSWCA 281 …. 15.2.27 — v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi (2006) Aust Torts Reports 81868 …. 9.2.9 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 …. 16.2.20 Savile v Roberts (1698) 1 Ld Raym 374 …. 11.5.26 Savini v Australian Terazzo and Concrete Co Pty Ltd [1959] VR 811 …. 4.2.35, 14.2.17 SB v State of NSW (2004) 13 VR 527 …. 1.5.13, 2.6.29 Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 1) [1987] VR 261 …. 6.3.4C — v — (No 2) [1987] VR 281 …. 6.3.4C — v — (No 3) [1987] VR 289 …. 6.3.4C, 6.3.15, 6.3.26 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594; [2000] HCA 18 …. 3.4.9C, 3.4.13, 7.8.1 Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 …. 10.1.14 Schlederer v The Ship ‘Red Fin’ [1979] 1 NSWLR 258 …. 4.2.6 Schloendorff v Society of New York Hospital 211 NY 125 (1914) …. 13.2.24C Scholz v Standish [1961] SASR 123 …. 3.2.13C, 3.2.17 Schubert v Schubert Wagon Co 249 NY 253 (1929) …. 17.4.2C Schuller v S J Webber Nominees Pty Ltd (2015) 124 SASR 152 …. 6.3.13 Schulz v Schmauser [2001] 1 Qd R 540 …. 10.1.14 Schumann v Abbott [1961] SASR 149 …. 18.1.2 Scott v Davis (2000) 204 CLR 333; 175 ALR 217 …. 1.5.1, 17.2.2C, 17.4.8, 17.5.1, 17.5.2C, 17.5.11, 17.5.12 — v Secretary, Department of Social Security [2000] FCA 1241 …. 10.2.12 — v Shepherd (1773) 2 Wm Bl 892 …. 11.2.1C, 11.2.3, 11.5.19C Scrase v Jarvis [2000] 2 Qd R 92 …. 7.7.18 Sean and Russell (Special Medical Procedures), Re (2010) 44 Fam LR 210 …. 13.2.47 Searle v Wallbank [1947] AC 341 …. 7.1.3, 7.7.33, 15.2.1 Sebry v Companies House the Registrar of Companies [2016] 1 WLR 2499; [2015] EWHC 115 (QB) …. 10.2.12

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Secretary, Department of Family and Community Services v Geeves (2004) 136 FCR 134 …. 1.1.20 Secretary, Department of Health and Community Services v JWB (Marion’s case) (1992) 175 CLR 218 …. 11.4.8, 13.2.3, 13.2.13, 13.2.14, 13.2.24C, 13.2.33, 13.2.39, 13.2.43, 13.2.46, 13.2.48, 13.2.49, 13.2.52 Secretary of State for the Home Department v Robb [1995] Fam 127 …. 13.3.7 Sedleigh-Denfield v O’Callaghan [1940] AC 880; [1940] 3 All ER 349 …. 7.7.11C, 14.1.12, 14.2.2C, 14.2.6C, 14.2.11C, 14.2.12, 14.3.16C, 14.4.1C, 14.6.4C Seidler v Luna Park Reserve Trust (unreported, NSW SC, Hodgson J, 21 September 1995) …. 14.1.17 Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 …. 10.2.10 Selig v Wealthsure Pty Ltd (2015) 255 CLR 661 …. 18.2.21 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 …. 5.1.13, 5.1.16C, 8.3.3 Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1 …. 4.2.28, 4.3.23 — v McGuiness (2000) 49 NSWLR 262 …. 3.4.7, 4.2.12, 4.2.20 — v McNeill (2006) 4 DDCR 1 …. 2.3.16 Semayne’s Case (1604) 5 Co Rep 91a …. 12.1.3, 12.2.9C Serrao v Cornelius (No 2) (2016) 75 MVR 58 …. 6.2.41 Seward v ‘Vera Cruz’ (1884) 10 App Cas 59 …. 9.2.9 Seymour v Greenwood (1861) 7 H & N 355 …. 17.4.8 Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 …. 8.2.13C, 8.2.14, 8.2.21, 8.2.24, 8.2.40, 8.2.42, 8.2.57 Sharp v Parramatta City Council [2015] NSWCA 260 …. 6.3.23 Sharpe v Bishop of Worcester [2015] ICR 1241 …. 17.5.7 Sharrod v London & North Western Railway Co (1849) 4 Exch 580 …. 17.4.2C, 17.4.8 Shaw v Hackshaw [1983] 2 VR 65 …. 12.5.5, 13.4.3 — v Thomas (2010) Aust Torts Reports 82-065 …. 3.1.12, 3.1.31 Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344 …. 2.6.41, 2.6.42 Sheather v Country Energy (2007) Aust Torts Reports 81-901 …. 2.5.11, 2.5.13 Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378 …. 10.2.47C Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 …. 12.4.6, 14.1.11C, 14.5.4 Shell UK Ltd v Total UK Ltd [2011] 1 QB 86 …. 15.1.2 Shelley v Szelley [1971] SASR 430 …. 6.2.19 Shellharbour City Council v Rigby (2006) 150 LGERA 11 …. 7.5.7 Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 …. 10.2.59 Ship ‘Eternal Wind’ v Fortuna Seafoods Pty Ltd (as trustees of Rowley Family Trust) [2006]

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HCATrans 136 …. 16.3.10 Shipard v Motor Accident Commission (1997) 70 SASR 240 …. 7.10.12 Shire of Brookton v Water Corporation (2003) Aust Torts Reports 81-720 …. 3.1.37 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 …. 2.2.23, 2.3.10, 3.1.22 Shoalhaven City Council v Pender [2013] NSWCA 210 …. 2.3.9 Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 (NSW CA) …. 3.4.10 Shogunn Investments Pty Ltd v Public Transport Authority [2016] WASC 42 …. 14.3.14 Shorey v PT Ltd (2003) 197 ALR 410 …. 4.3.22, 4.3.38 Shrimp v Landmark Operations Ltd (2007) 163 FCR 510 …. 18.2.21 Sibley v Kais (1967) 118 CLR 424; [1968] ALR 158 …. 6.2.21C, 10.2.4 Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 …. 3.2.20C, 4.3.5 Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229 …. 4.2.12, 4.2.19, 4.2.20 Sijuk v Ilvariy Pty Ltd [2010] NSWSC 354 …. 10.1.16 Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 …. 8.2.50, 8.2.51 Simmons v Castle [2013] 1 WLR 1239 …. 8.2.56 Simon v Condran (2013) 85 NSWLR 768; [2013] NSWCA 388 …. 13.3.13, 15.2.29, 15.2.31 — v Helmot (Guernsey) [2012] Med LR 394 …. 8.2.39 — v Hunter & New England Local Health District (2012) 14 DCLR (NSW) 60 …. 2.4.17 Simpson v Bannerman (1932) 47 CLR 378 …. 15.2.28 — v Blanch (1998) Aust Torts Reports 81-458 …. 15.2.1, 17.6.3 Sims v Chong (2015) 230 FCR 346 …. 2.6.26 Sindell v Abbott Laboratories 607 P 2d 924 (1980) …. 15.3.7 Singh v Commonwealth (2004) 222 CLR 322 …. 10.1.7 Sirros v Moore [1975] QB 118 …. 1.5.18 Siwek v Lambourn [1964] VR 337 …. 4.3.41 SJ Weir Ltd v Bijok (2011) 112 SASR 127; [2011] SASCFC 165 …. 4.2.29, 14.1.25 Skea v NRMA Insurance Ltd (2005) 43 MVR 495 …. 7.10.9 Skelton v Collins (1966) 115 CLR 94; [1966] ALR 449 …. 8.2.9, 8.2.13C, 8.2.24, 8.2.48, 8.2.58C, 9.1.3 Slater v Finning Ltd [1997] AC 473 …. 3.1.5 Slaveski v Austin Health (2010) 32 VR 129 …. 13.2.33 — v Victoria [2010] VSC 441 …. 11.1.12, 11.4.15, 13.5.8C Sleiman v Commissioner of Corrective Services [2009] NSWSC 304 …. 11.5.8 Slivak v Lurgi (Australia) Pty Ltd (1999) 203 LSJS 318 …. 10.2.41 — v — (2001) 205 CLR 304 …. 10.1.8, 10.1.15, 10.2.41, 10.2.43

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Sloan v Kirby (1979) 20 SASR 263 …. 18.2.13 Smaill v Buller District Council [1998] 1 NZLR 190 …. 10.2.12 Smit v Brisbane South Regional Health Authority [2002] QSC 312 …. 3.2.37 Smith v Amaca Pty Ltd [2009] VSC 318 …. 18.1.2 — v Austin Lifts Ltd [1959] 1 All ER 81 …. 7.8.12 — v Capella State High School Parents and Citizens Association [2004] QSC 109 …. 15.2.8, 15.2.14, 15.2.20 — v Charles Baker & Sons [1891] UKHL 2; [1891] AC 325 …. 6.3.12C, 6.3.16 — v Eric S Bush [1990] 1 AC 831 …. 16.2.16 — v Greater Eastern Railway Co (1866) LR 2 CP 4 …. 15.2.17 — v Inco Ltd (2011) 107 OR (3d) 321 …. 14.1.9 — v Jenkins (1970) 119 CLR 397 …. 7.2.18C — v Leurs (1945) 70 CLR 256; [1945] ALR 392 …. 7.7.2C, 7.7.28C, 17.1.5 — v Lord [1962] SASR 88 …. 3.2.17 — v Ministry of Defence [2014] AC 52 …. 2.6.42, 2.6.44 — v Northamptonshire County Council [2009] 4 All ER 557 …. 10.2.35 — v Williams (2006) 47 MVR 169 …. 7.1.3, 15.2.1 — v Zhang (2012) 60 MVR 525; [2012] NSWCA 142 …. 6.2.14, 6.2.51 Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254 …. 16.2.33 Smoker v London Fire & Civil Defence Authority [1991] 2 AC 502 …. 8.2.52 Sneddon v New South Wales [2012] NSWCA 351 …. 17.1.7, 17.3.25 Soblusky v Egan (1960) 103 CLR 215 …. 1.1.31, 17.5.1, 17.5.6 Solomons v Pallier (2015) 72 MVR 365 …. 6.2.8 South Australia v Johnson (1982) 42 ALR 161 …. 16.2.33 — v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56 …. 2.6.29, 2.6.30, 8.1.11, 11.5.18C — v Simionato (2005) 143 LGERA 128 …. 14.2.14 South Australian Ambulance Incorporated v Wahlheim (1948) 77 CLR 215 …. 6.2.22 South Australian Asset Management Corp v York Montague Ltd [1997] AC 191 …. 4.3.18, 16.2.32 South Australian Stevedoring Co Ltd v Holbertson [1939] SASR 257 …. 18.2.14C South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 …. 15.1.6 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 …. 2.2.15, 2.2.24 Southam v Smout [1964] 1 QB 308 …. 12.2.9C

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Southern Portland Cement Ltd v Cooper (1973) 129 CLR 295 …. 7.5.3C — v — [1974] AC 623 …. 3.2.7, 7.7.13 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation & Land Management [2012] WASCA 79 …. 3.1.51, 14.1.1, 14.1.9, 14.1.22C, 14.2.1, 14.3.6 Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 …. 11.2.3 Southwark London Borough Council v Tanner [2001] 1 AC 1 …. 14.1.13, 14.2.4 — v Williams [1971] Ch 734 …. 13.3.11C Soutter v P & O Resorts Pty Ltd [1999] 2 Qd R 106 …. 10.2.10 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 …. 7.11.2, 10.1.1, 10.1.7, 10.2.2C, 10.2.11, 10.2.39, 10.2.45 Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100 …. 2.2.15, 6.3.31, 16.2.17 Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087 …. 12.3.4C Sparke v Osborne (1908) 7 CLR 51 …. 14.2.15 Spautz v Butterworth [1996] 41 NSWLR 1 …. 11.5.19C Speirs v Gorman [1966] NZLR 897 …. 6.2.34 Spence v Biscotti (1999) 29 MVR 253 …. 7.10.16 Spicer v Smee [1946] All ER 489 …. 14.6.4C Spring v Guardian Assurance plc [1995] 2 AC 296 …. 16.2.20 Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports 81-921 …. 17.3.22 Stanley v Powell [1891] 1 QB 86 …. 11.3.1, 11.3.6C Stannus v Graham (1994) Aust Torts Reports 81-297 …. 7.5.12 Stapley v Gypsum Mines Ltd [1953] AC 663 …. 6.2.45, 17.4.2C Starks v RSM Security Pty Ltd (2004) Aust Torts Reports 81-763 …. 17.3.22 State Government Insurance Commission v Trigwell (1979) 142 CLR 617 …. 2.1.4, 7.1.3, 7.1.4 State Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228 …. 8.2.52 State of New South Wales v McCarthy (2015) Aust Torts Reports 82-228 …. 12.1.5 — v Talovic (2014) 87 NSWLR 512 …. 12.1.5 State of Queensland v Kelly [2015] 1 Qd R 577 …. 6.3.22 State Rail Authority of New South Wales v Chu (2008) Aust Torts Reports 81-940 …. 4.3.11 Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 …. 17.4.2C, 17.4.6

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Steen v Senton [2015] ACTCA 57 …. 6.2.51 Stephens v Giovenco [2012] Aust Torts Reports 82-109 …. 2.4.9, 3.1.2, 4.3.49 Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 …. 4.3.39, 4.3.43, 7.8.1 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 …. 7.8.2, 17.2.2C, 17.2.4, 17.2.5, 17.2.7, 17.6.16C Stewart v Ackland (2015) 293 FLR 341 …. 6.3.22 — v Ronalds (2009) 76 NSWLR 99 …. 16.2.20 Stingel v Clark (2006) 226 CLR 442 …. 11.3.12, 11.4.28, 11.4.30 Stoakes v Brydges [1958] QWN 5 …. 14.1.20 Stocovaz v Fung [2007] NSWCA 199 …. 8.3.6 Stojan (No 9) Pty Ltd v Kenway (2009) Aust Torts Reports 82-043 …. 7.5.7 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 …. 7.2.3 Stokes v Russell (unreported, Tas SC, Cosgrove J, 18 January 1983, No 2/1983) …. 7.7.18 Stone v Bolton [1950] 1 KB 201 …. 14.6.6 Stoneman v Lyons (1975) 133 CLR 550 …. 10.2.7, 10.2.26, 12.4.7, 14.1.25, 17.4.6, 17.4.8, 17.6.19 Stormer v Ingram (1978) 21 SASR 93 …. 15.2.8, 15.2.13 Stovin v Wise [1996] AC 923 …. 1.2.5, 2.6.30, 7.6.8, 7.7.6 Strang v Russell (1905) 24 NZLR 916 …. 12.2.15C Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245 …. 16.2.15 Strong v Woolworths Ltd (2012) 285 ALR 420; [2012] HCA 5 …. 3.4.5, 3.4.11, 4.1.7, 4.2.1C, 4.2.11, 4.2.16, 4.2.17, 4.2.20, 4.2.24, 4.2.28, 4.2.30, 4.2.31, 14.2.17, 18.1.3 Stryke Corporation Pty Ltd v Miskovic [2007] NSWCA 72 …. 1.5.25 Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432; [2009] HCA 15 …. 2.6.15, 2.6.40, 7.1.1, 7.7.2C, 10.1.2, 10.1.7 Sturges v Bridgman (1879) 11 Ch D 852 …. 14.1.16, 14.3.16C, 14.3.18 SU v Commonwealth of Australia [2016] NSWSC 8 …. 11.5.7, 11.5.8, 13.5.5 Sullivan v Gordon (1999) 47 NSWLR 319 …. 8.2.35 — v Moody (2001) 207 CLR 562; 183 ALR 404; [2001] HCA 59 …. 1.1.21, 1.5.20, 2.2.17C, 2.2.23, 2.4.1, 2.4.16C, 2.6.1, 2.6.11C, 2.6.29, 2.6.31, 2.6.32, 2.6.34, 7.1.1, 16.2.20, 17.3.18C — v Stefanidi [2009] NSWCA 313 …. 3.2.8 Summers v Tice 199 P 1 (1948) …. 4.2.25 Sunbolf v Alford (1838) 3 M & W 248 …. 11.5.13 Suncorp Insurance and Finance v Ploner [1991] 1 Qd R 69 …. 1.1.27 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 …. 6.2.25C, 6.2.27

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Sunrise Co v ‘The Winnipeg’ [1991] 1 SCR 3 …. 4.2.35 Suosaari v Steinhardt [1989] 2 Qd R 477 …. 16.3.18 Susan Heyes Inc v South Coast BC Transportation Authority [2011] BCCA 77 …. 14.3.6 Sutherland Shire Council v Becker (2006) 150 LGERA 184 …. 16.3.19 — v Heyman (1985) 157 CLR 424 …. 2.1.1, 2.2.14, 7.6.5, 7.6.7, 7.6.8, 7.6.13, 7.7.4, 7.7.7, 16.1.6 — v Major [2015] NSWCA 243 …. 8.2.19 Sutradhar v Natural Environment Research Council [2006] 4 All ER 490 …. 16.2.14 Suvaal v Cessnock City Council (2003) 200 ALR 1 …. 3.3.11 Svingos v Deacon [1971] 2 SASR 126 …. 12.5.1C Swain v Waverley Municipal Council (2005) 220 CLR 517 …. 2.7.1, 3.1.18, 3.1.41, 3.2.4, 3.3.10, 4.2.8, 7.7.7 Swan v Osborne [1967] VR 747 …. 17.1.7 — v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 …. 7.10.7 Sweedman v Transport Accident Commission (2006) 226 CLR 362 …. 1.1.31 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46; [2006] HCA 19 …. 7.5.5, 17.2.6, 17.5.2C Sweeney (BHNF Bell) v Thornton [2012] HCATrans 179 …. 3.2.34 Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 318 ALR 666; [2015] WASCA 35 …. 16.1.8C, 16.3.18 Sydney City Council v Dell’Oro (1974) 132 CLR 97 …. 2.4.9 Sydney Harbour Foreshore Authority v Perrett [2010] NSWCA 160 …. 6.3.2 Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation (2008) 247 ALR 313 …. 8.2.21 Sydney South West Area Health Service v MD (2009) 260 ALR 702 …. 3.2.27 — v Stamoulis [2009] NSWCA 153 …. 4.2.20 Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20; [2009] HCA 42 …. 2.3.10, 2.3.11C Symes v Mahon [1922] SASR 447 …. 11.5.6C, 13.5.3 Symonds v Vass (2009) 257 ALR 689 …. 2.6.19 Symons Nominees Pty Ltd v Road & Traffic Authority of NSW (1991) Aust Torts Reports 81-081 …. 14.3.10, 14.6.9

T T (Adult: Refusal of Treatment), Re [1993] Fam 95 …. 13.2.22, 13.2.24C, 13.2.27 T & X Company Pty Ltd v Chivas (2014) 67 MVR 297; [2014] NSWCA 235 …. 6.2.51 TAB Ltd v Beaman [2006] NSWCA 345 …. 7.5.18

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Tabet v Gett (2010) 240 CLR 537; 265 ALR 227; [2010] HCA 12 …. 5.1.5C, 5.1.15, 5.1.16C, 7.1.1, 7.9.1, 16.2.35 Tai v Saxon (unreported, WA (FC), 8 February 1996) …. 7.9.8 Takhar v Animal Liberation SA Ltd [2000] SASC 400 …. 12.2.16 Talbot & Oliver (a firm) v Witcombe (2006) 32 WAR 179 …. 9.1.2, 9.1.3 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 …. 2.2.20, 2.6.32, 3.2.2, 4.3.44, 5.1.11, 7.1.1, 7.10.4C Tarry v Ashton (1876) 1 QBD 314 …. 14.6.4C Tasmania v Shaw [2001] TASSC 119 …. 16.2.31 Tate & Lyle Industries Ltd v Greater London LC [1983] 2 AC 509 …. 14.3.11 Tattsbet Ltd v Morrow (2015) 233 FCR 46 …. 17.2.7 Taupo BC v Birnie [1978] 2 NZLR 397 …. 4.3.29 Taylor v The Owners — Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547; 88 ALJR 473; [2014] HCA 9 …. 9.2.12, 9.2.17C TC v State of New South Wales (1999) Aust Torts Reports 81-500 …. 2.6.29 — v — [2000] NSWSC 292 …. 2.6.29 TC by his tutor Sabatino v State of New South Wales [2001] NSWCA 380 …. 2.6.29 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 …. 8.1.21, 11.6.2C, 12.5.1C, 15.2.1 — v Ilvariy Pty Ltd (2008) 71 NSWLR 323 …. 8.1.11, 12.2.22 Teamay v Severin (1988) 94 FLR 47 …. 14.1.27, 14.6.2 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 …. 16.1.14, 16.2.10, 16.2.11 Terry v Leventeris (2011) 109 SASR 358 …. 4.2.34 Teubner v Humble (1963) 108 CLR 491 …. 3.3.14, 8.2.3, 8.2.9 Texcrete Pty Ltd v Khavin [2003] NSWCA 337 …. 10.2.39 Thatcher v Charles (1961) 104 CLR 57 …. 1.3.3C Thomas v British Railways Board [1976] QB 912 …. 10.2.9 — v Powercor Australia Ltd [2011] VSC 614 …. 3.1.44, 8.3.1C — v Quartermaine (1887) 18 QBD 685 …. 6.3.12C Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 …. 18.1.1, 18.1.4, 18.1.5, 18.1.6 — v Bankstown Corp (1953) 87 CLR 619 …. 2.3.5, 2.7.3 — v Gibson (1841) 7 M & W 456 …. 14.2.2C — v Henderson (1989) 51 SASR 431 …. 17.5.5 — v Johnson & Johnson Pty Ltd [1991] 2 VR 449 …. 3.1.66, 7.3.1 — v Mandla [1976] 2 NSWLR 307 …. 9.2.11

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— v Thompson 484 US 174 (1988) …. 10.1.8 — v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452; [2005] HCA 19 …. 3.1.28, 3.1.31, 6.2.26, 7.5.8C, 7.6.19 Thompson-Schwab v Costaki [1956] 1 All ER 652; [1956] 1 WLR 335 …. 14.1.3C, 14.1.27 Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 …. 10.2.10 — v University of London [1966] 2 QB 237 …. 2.6.28 Thornton v Lessbrook Pty Ltd [2010] QSC 308 …. 9.2.10 — v Sweeney (2011) 59 MVR 155 …. 3.2.27, 3.2.34 Thorpe Nominees Pty Ltd v Henderson [1988] 2 Qd R 216 …. 16.2.31 Thurston v Todd [1965] NSWR 1158 …. 1.3.3C, 8.2.12, 8.2.14 — v — [1966] 1 NSWR 321 …. 1.3.4 Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 …. 1.4.8 Tidman v Griffiths (1989) 155 LSJS 95 …. 7.7.25 Tilden v Gregg [2015] NSWCA 164 …. 8.1.18 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 …. 7.5.12 Tiufino v Warland (2000) 50 NSWLR 104 …. 6.2.10 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 …. 7.8.8 TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 …. 3.4.14 Tock v St John’s Metropolitan Area Board [1989] 2 SCR 1181 …. 14.3.6, 14.3.8, 14.3.11 Todorovic v Waller (1981) 150 CLR 402 …. 1.3.8E, 1.6.9, 8.2.1, 8.2.5, 8.2.9, 8.2.37, 8.2.40, 8.2.41 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 …. 6.3.27 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 …. 18.1.6 Tooth & Co Ltd v Tillyer (1956) 95 CLR 605 …. 17.4.6 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 …. 14.2.2C, 14.2.9, 14.6.4C Towart v Adler (1989) 52 SASR 373 …. 7.7.23, 7.7.25 Town of Port Hedland v Hodder (No 2) (2012) 43 WAR 383 …. 6.2.11, 6.2.14, 6.2.37, 6.2.39, 7.2.4 Transco Plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 …. 15.1.2 Transfield Services (Australia) Pty Ltd v Hall (2008) 75 NSWLR 12 …. 17.6.3 Transport Accident Commission v Cuthbertson [2013] VSCA 29 …. 3.3.12 — v Hoffman [1989] VR 197 …. 1.4.15 — v Jewell [1995] 1 VR 300 …. 1.4.15 — v Treloar [1992] 1 VR 447 …. 1.4.15 Transport Accident Commission (TAC) v Kamel [2011] VSCA 110 …. 1.4.14

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Transtate Pty Ltd v Rauk [2002] NSWCA 222 …. 17.2.12 Travel Compensation Fund v Tambree (2005) 224 CLR 627 …. 4.3.3, 4.3.10 Trend Management Ltd v Borg (1996) 40 NSWLR 500 …. 8.1.12 Tresize v National Australia Bank Ltd (2005) 220 ALR 706 …. 16.2.1 Trevali Pty Ltd v Haddad (1989) Aust Torts Reports 80-286 …. 7.5.18 Trevorrow v South Australia (No 5) (2007) 98 SASR 136 …. 11.5.18C Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 …. 16.1.5 Trim Joint District School v Kelly [1914] AC 667 …. 1.4.23 Trobridge v Hardy (1955) 94 CLR 147 …. 11.5.2, 11.5.33 Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399 …. 7.7.18 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 …. 4.2.16 Tuberville v Savage (1669) 1 Mod 3 …. 11.4.7C, 11.4.12C Tucker v McCann [1948] VLR 222 …. 10.2.4 Tuohey v Freemasons Hospital (2012) 37 VR 180 …. 8.2.22 Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392 …. 4.2.31 — v — [2012] Aust Torts Reports 82-105 …. 7.5.13 Turnbull v Alm [2004] NSWCA 173 …. 7.7.12 Turner v South Australia (1982) 42 ALR 669 …. 7.8.7 TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 …. 12.5.1C Tweed Shire Council v Hancomatic Music Pty Ltd (2007) Aust Torts Reports 81-922 …. 2.5.8 — v Howarth (2009) Aust Torts Reports 82-010 …. 18.2.12 Twine v Bean’s Express Ltd [1946] 1 All ER 202 …. 17.4.2C 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 [2016] QSC 40 …. 12.4.9 Tyco Australia Pty Ltd v Plaintiff S99/2016 Networks Pty Ltd [2004] NSWCA 333 …. 4.3.45

U Ucack v Avante Developments Pty Ltd [2007] NSWSC 367 …. 18.2.21 Ultramares Corp v Touche, Niven & Co 174 NE 441 (1931) …. 16.1.4, 16.2.28 Underhill v Sherwell [1997] NSWCA 325 …. 13.4.1, 13.5.8C Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 …. 17.1.7 Union SS Co of NZ v Robin [1920] AC 654 …. 9.2.10 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 …. 1.5.1

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United State v Causby 328 US 256 (1946) …. 12.4.1C United State Shipping Board v Laird Line Ltd [1924] AC 286 …. 6.2.18 United States v Carroll Towing Co 159 F 2d 169 (1947) …. 3.1.14, 3.1.16 — v Gaubert 499 US 315 (1991) …. 7.6.5 United Uranium NL v Fisher [1965] ALR 99 …. 6.2.19 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; 212 LGERA 230 …. 2.3.5, 2.5.12, 3.1.22, 4.3.49 — v Takacs [2008] NSWCA 141 …. 10.2.38 University of Newcastle v Chopra (1989) 85 ALR 321 …. 10.2.9 Unsworth v Commissioner for Railways (1958) 101 CLR 73 …. 9.2.10 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 …. 8.1.8, 8.1.10, 8.1.14C, 12.5.1C Utah Construction Pty Ltd v Pataky [1966] AC 629 …. 10.2.5

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V Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537 …. 17.2.2C Vairy v Wyong Shire Council (2005) 223 CLR 422 …. 2.2.22, 2.5.2, 3.1.13, 3.1.19, 3.1.24, 3.1.25C, 3.2.4, 7.5.15, 7.6.2, 7.6.13 Valherie v Strata Corp No 1841 (2004) 234 LSJS 134; [2004] SASC 170 …. 14.2.10, 14.2.14 — v Strata Corp No 1841 Inc [2005] HCATrans 111 …. 14.2.10 Valleyfield Pty Ltd v Primac [2003] QCA 339 …. 16.3.10 Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2009] 1 AC 225 …. 2.6.37 Van Donselaar v Central Coast Grammar School Ltd [2003] NSWCA 241 …. 3.1.36 Van Eeden v Henry (2005) 62 NSWLR 301 …. 3.4.14 Van Gervan v Fenton (1992) 175 CLR 327 …. 8.2.29C, 8.2.33 Van Win Pty Ltd v Eleventh Mirantron Pty Ltd [1986] VR 484 …. 18.2.6 Vandepitte v Preferred Accident Ins Co of NY [1933] AC 70 …. 1.1.27 Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 …. 17.1.6, 17.2.13, 17.5.9 Varmedja v Varmedja [2008] NSWCA 177 …. 8.1.11, 11.4.19, 11.4.20 Vasilikopoulos v New South Wales Land and Housing Corporation [2010] NSWCA 91 …. 2.5.10 Vaughan v Menlove (1837) 3 Bing NC 468 …. 3.1.6, 3.2.9C, 3.2.13C Veljanovska v Verduci [2014] VSCA 15 …. 10.1.23 Vella v Permanent Mortgages Pty Ltd (2008) 13 BPR 25,343 …. 3.2.27

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Venning v Chin (1974) 10 SASR 299 …. 11.3.2, 11.3.9 Vergara v Ewin (2014) 223 FCR 151 …. 8.1.23 Verryt v Schoupp (2015) 70 MVR 484; [2015] NSWCA 128 …. 6.2.38, 6.2.39 Versic v Connors [1969] 1 NSWR 481 …. 9.2.9 Verwayen v Commonwealth of Australia (No 2) [1989] VR 712 …. 2.6.43 Vial v Housing Commission of NSW [1976] 1 NSWLR 388 …. 17.6.12 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 …. 17.2.13 Victims Compensation Fund Corp v Brown (2003) 201 ALR 260; (2003) 77 ALJR 1797; [2003] HCA 54 …. 1.4.23, 15.2.27 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; [1937] ALR 597 …. 1.5.12, 14.1.26C Victoria (State of) v Bryar [1970] ALR 809 …. 7.7.18 — v Richards (2010) 27 VR 343 …. 2.6.35 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 …. 7.10.1, 7.10.3, 11.6.1 — v Speed (1928) 40 CLR 434 …. 9.2.9 Vincent v Peacock [1973] 1 NSWLR 466 …. 14.2.3 — v Woolworths Ltd [2016] NSWCA 40 …. 3.3.4, 7.5.10, 7.5.12 Vine v London Borough of Waltham Forest [2000] 4 All ER 169 …. 12.5.7 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] ALR 657 …. 2.4.3C, 2.5.7C, 3.2.19, 4.3.19, 7.5.3C, 7.5.13, 16.2.13, 16.2.21C, 16.3.12C Volman t/as Volman Engineering v Lobb [2005] NSWCA 348 …. 14.6.5 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 …. 3.1.41 Vreman v Albury City Council [2011] NSWSC 39 …. 6.3.23 Copyright © 2017. LexisNexis Butterworths. All rights reserved.

W W v Eaton (2011) Tas R 105 …. 11.4.24 — v Home Office [1997] EWCA 1052 …. 11.5.23 — v W [1999] 2 NZLR 1 …. 8.1.7 Waco Kwikform Ltd v Perigo [2014] NSWCA 140 …. 6.2.28, 7.8.2 Wade v State of Victoria [1999] 1 VR 121 …. 16.2.20 Wagga Truck Towing Pty Ltd v O’Toole [2011] NSWCA 191 …. 2.4.9 Wagner v International Railway Co 232 NY 176 (1921) …. 2.3.3, 4.3.15 Wagstaff v Haslam (2007) 69 NSWLR 1 …. 7.5.19 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 …. 16.2.18 Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 …. 11.6.2C, 11.6.3C, 11.6.5C

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Walker v City of Adelaide (2004) 88 SASR 225 …. 14.1.25 — v — (2005) 92 SASR 30 …. 14.1.25 — v Geo H Medlicott & Son (a Firm) [1999] 1 All ER 685 …. 16.2.23 — v Hamm [2008] VSC 596 …. 13.5.8C — v Howard (2009) 55 MVR 9 …. 3.2.5 — v Noble (Qld FC, 8 June 1989, unreported) …. 3.2.38 Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488 …. 4.3.47 Wallace v Kam (2013) 250 CLR 375; 297 ALR 383; [2013] HCA 19 …. 4.1.4, 4.3.4C, 4.3.18, 4.3.34, 4.3.50 — v Powell (2000) 10 BPR 18,481 …. 14.6.1 Waller v James (2015) 90 NSWLR 634 …. 4.3.6, 7.2.10 — v James [2016] HCATrans 31 …. 4.3.6 — v James; Waller v Hoolahan (2006) 226 CLR 136 …. 7.2.9C — v Suncorp Metway Insurance Ltd [2010] 2 Qd R 560 …. 8.2.16 Walmsley v Humenick [1954] 2 DLR 232 …. 11.3.5, 11.3.6C Walsh v Ervin [1952] VLR 361 …. 14.6.2 Walter v Selfe (1851) 4 De G & Sm 315 …. 14.1.10 Ward v McMaster [1988] IR 337 …. 16.3.4C Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 …. 1.5.1, 5.1.5C, 5.2.9 Ware v Garston Haulage Co Ltd [1944] KB 30 …. 14.6.7 Warner v Riddiford (1858) 4 CBNS 180 …. 11.5.19C Warren v Coombes (1979) 142 CLR 531 …. 3.2.4, 3.3.6C, 3.3.11 — v King [1963] 3 All ER 521 …. 1.3.3C Warren Shire Council v Kuehne (2012) 188 LGERA 362; [2012] NSWCA 81 …. 8.2.35, 15.2.1 Waterways Authority v Fitzgibbon (2005) 221 ALR 402 …. 3.3.13 Watkins v State of Victoria (2010) 27 VR 543 …. 13.4.1, 13.5.8C Watkins t/as Watkins Tapsell v De Varda [2003] NSWCA 242 …. 16.2.18 Watson v Cowen [1959] Tas SR 194 …. 12.2.2 — v Fram Reinforced Concrete Co (Scotland) Ltd [1960] SC (HL) 92 …. 5.2.1 Watt v Bretag (1982) 41 ALR 597 …. 6.2.52 — v Hertfordshire County Council [1954] 2 All ER 368 …. 3.1.45, 3.1.54 — v Rama [1972] VR 353 …. 5.2.1, 7.2.12, 7.2.13, 7.2.15 Watts v Rake (1960) 108 CLR 158 …. 4.3.23, 4.3.38 Waugh v James K Allan Ltd [1964] SC (HL) 102 …. 3.2.17

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— v Kippen (1986) 160 CLR 156 …. 10.2.14, 10.2.43 — v Waugh (1950) 50 SR (NSW) 210 …. 17.4.2C, 17.4.6 Waverley Council v Ferreira (2005) Aust Torts Reports 81-818 …. 3.1.13 WD & HO Wills (Aust) Ltd v State Rail Authority of NSW (1998) 43 NSWLR 338 …. 7.6.9, 7.7.17 Weaver v Ward (1616) Hob 134; 80 ER 284 …. 11.3.6C, 11.3.12 Webb v South Australia (1982) 43 ALR 465 …. 3.1.28, 3.1.31 Webster v Lampard (1993) 177 CLR 598 …. 7.7.16 — v McIntosh (1980) 32 ALR 603 …. 11.5.2 Wells v Cooper [1958] 2 QB 265 …. 3.2.31 — v Wells [1999] 1 AC 345 …. 8.2.37 Wels v McGrath (1973) 47 ALJR 324 …. 6.2.19 Wentworth Securities Ltd v Jones [1980] AC 74; [1979] 1 All ER 286 …. 9.2.17C Wesfarmers Federation Insurance Ltd v Wells t/as Wells Plumbing (2008) 15 ANZ Ins Cas 61-772 …. 17.2.7 West v GIO of NSW (1981) 35 ALR 437 …. 3.4.6 West (H) & Son Ltd v Shephard [1964] AC 326 …. 8.2.58C, 8.2.62 Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 …. 1.4.3, 1.4.23 Western Australia v Watson [1990] WAR 248 …. 3.2.6 Western Districts Development Pty Ltd v Baulkham Hills Shire Council (2009) 169 LGERA 62 …. 16.3.19 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 …. 3.1.16 Whayman v Motor Accidents Insurance Board [2003] TASSC 149 …. 7.10.8 Wheat v E Lacon & Co Ltd [1966] AC 552 …. 7.5.6 Wheelahan v City of Casey [2011] VSC 215 …. 14.5.8 Wheeler v Baldwin (1934) 52 CLR 609 …. 12.3.4C — v New Merton Board Mills [1933] 2 KB 669 …. 10.2.58 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 …. 3.3.11 Whitaker v FCT (1998) 82 FCR 261 …. 3.2.23 White v Humphries (1984) 1 MVR 426 …. 14.6.7 — v Johnston (2015) 87 NSWLR 779 …. 11.4.5, 13.2.4, 13.2.5, 13.2.18 — v Jones [1995] 2 AC 207 …. 16.2.12, 16.2.21C Whitehead v Moon [2013] ACTSC 243 …. 11.4.29, 13.2.5 Whitehouse v Jordan [1980] 1 All ER 650 …. 7.9.17 — v — [1981] 1 All ER 267 …. 3.2.28 Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 …. 12.5.1C

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Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 …. 2.3.3, 3.1.3, 7.10.15 Wieben v Wain (1991) 13 MVR 393 …. 3.4.14 — v Wain (1990) Aust Torts Reports 81-051 …. 3.4.15 Wiech v Amato (1973) 6 SASR 442 …. 6.2.35 Wiffin v Kincard (1807) 2 Box & Pul 471 …. 11.4.7C Wilkes v Wood (1763) Lofft 1 …. 8.1.14C Wilkins v Jennings (1985) Aust Torts Reports 80-754 …. 17.1.6 Wilkinson v Downton [1897] 2 QB 57 …. 7.10.4C, 11.6.1, 11.6.2C, 11.6.3C, 11.6.5C, 12.5.1C — v Joyceman [1985] 1 Qd R 567 …. 6.3.14 — v Law Courts Ltd [2001] NSWCA 196 …. 3.1.16, 7.5.12 Wilks v The Cheltenham Home Guard Motor Cycle & Light Car Club [1971] 2 All ER 369 …. 3.2.39 Willcox v Singh [1985] 2 Qd R 66 …. 3.2.28 Willers v Joyce [2016] 3 WLR 477 …. 11.5.26, 11.5.36 Willett v Victoria (2013) 42 VR 571 …. 7.10.11 Williams v A & W Hemphill Ltd [1966] SC (HL) 31 …. 17.3.10 — v Bermuda Hospitals Board [2016] AC 888 …. 5.1.21 — v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 …. 7.4.2C — v — (No 5) [2001] FCA 399 …. 7.4.2C — v Government Insurance Office of New South Wales(Williams v GIO) (1995) 21 MVR 148 …. 6.2.52 — v Holland (1833) 10 Bing 112 …. 11.1.14 — v McEwan [1952] VLR 507 …. 7.11.2 — v Milotin (1957) 97 CLR 465; [1957] ALR 1145 …. 11.2.4, 11.3.3C, 11.3.6C, 11.3.9, 11.6.2C — v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 …. 11.5.1 — v — (1999) 25 Fam LR 86 …. 7.7.22 — v — (2000) Aust Torts Reports 81-578 …. 2.6.30, 10.2.12 — v Pisano (2015) 90 NSWLR 342 …. 18.2.21 — v R (1986) 161 CLR 278 …. 13.5.8C — v Spautz (1992) 174 CLR 509 …. 11.5.33 — v State Transit Authority of NSW (2004) 60 NSWLR 286 …. 14.3.19 Willoughby Municipal Council v Halstead (1916) 22 CLR 352 …. 14.5.3 Wilsher v Essex Area Health Authority [1988] AC 1074 …. 4.2.18, 7.9.3

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— v — [1987] QB 730 …. 3.2.37 Wilson v Carter [2005] NSWSC 1351 …. 2.6.23 — v Marshall [1982] Tas R 287 …. 11.1.11 — v New South Wales (2010) 278 ALR 74 …. 12.2.6, 12.2.13, 12.2.14 — v — [2011] HCATrans 218 …. 12.2.6 — v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 …. 3.1.51 — v Peisley (1975) 7 ALR 571 …. 4.3.43 — v Pringle [1987] QB 237 …. 11.4.7C Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 …. 6.1.5, 7.8.8, 17.6.4, 17.6.5 Wilton & Cumberland v Coal & Allied Operations Pty Ltd (2007) 161 FCR 300 …. 17.2.4 Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 …. 12.5.2 Winiarczyk v Tsirigotis (2011) 58 MVR 98 …. 6.2.19 Winnipeg Condominium Corp No 36 v Bird Construction Co [1995] 1 SCR 85 …. 16.3.16 Winterbottom v Wright (1842) 10 M & W 109 …. 2.2.7C, 2.2.8, 2.2.9 Wintle v Conaust (Vic) Pty Ltd [1989] VR 951 …. 4.2.26 Witcombe as Executrix of the Estate of Witcombe v Talbot & Oliver (2011) 280 ALR 177 …. 9.1.2, 9.1.3 Wolters v The University of the Sunshine Coast [2014] 1 Qd R 571 …. 7.10.11 Wong v Parkside Health NHS Trust [2003] 3 All ER 932; [2001] EWCA Civ 1721 …. 11.6.5C Wooby v Australian Postal Corporation (2013) 233 IR 471 …. 7.8.2 Wood v Manley (1839) 11 Ad & E 34 …. 13.2.3 Woodland v Essex County Council [2014] 1 AC 537 …. 17.6.8, 17.6.9, 17.6.11 Woodley v Boyd [2001] NSWCA 35 …. 13.5.8C Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 …. 1.1.5, 1.6.9, 3.1.31, 3.1.51, 3.2.40 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; [2004] HCA 16 …. 16.1.8C, 16.1.11, 16.3.8, 16.3.11, 16.3.12C, 16.3.15 Woolworths Ltd v Crotty (1942) 66 CLR 603 …. 9.2.7 — v Perrins (2015) 254 IR 47 …. 7.8.14, 7.10.11 Workcover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 …. 9.1.3 Workman v Cowper [1961] 2 QB 143 …. 13.4.3 Wormald v Cole [1954] 1 QB 614 …. 12.5.1C, 15.2.1 Worth v Gilling (1866) LR 2 CP 1 …. 15.2.16 Wright v Borzi [1979] Qd R 179 …. 5.1.9

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Wringe v Cohen [1940] 1 KB 229 …. 14.6.4C, 14.6.8 Wurridjal v Commonwealth (2009) 237 CLR 309; [2009] HCA 2 …. 17.6.11 Wuta-Ofei v Danquah [1961] 1 WLR 1238 …. 12.3.4C Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25 …. 6.2.41 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 …. 4.3.43, 8.2.21, 8.2.42 Wynn Tresidder Management Pty Ltd v Barkho (2009) Aust Torts Reports 82-016 …. 10.1.14, 10.1.16, 10.2.27 Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 …. 2.3.9, 2.3.10, 3.1.9, 3.1.10, 3.1.13, 3.1.14, 3.1.15, 3.1.21C, 3.1.24, 3.1.25C, 3.1.31, 3.1.32, 3.1.38, 3.1.39C, 3.1.46, 3.1.48, 3.1.49, 3.1.51, 3.2.24, 3.2.39, 7.5.9, 7.5.10, 7.5.12, 7.7.25, 7.10.4C, 16.2.13

X X v Pal (1991) 23 NSWLR 26 …. 7.2.12 — v State of South Australia (No 3) (2007) 97 SASR 180 …. 2.4.14 — v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 …. 13.2.44 X (minors) v Bedfordshire County Council [1995] 2 AC 633 …. 1.5.13, 2.6.30, 10.1.9, 10.2.2C, 10.2.3, 10.2.12 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 …. 8.1.14C, 18.2.5, 18.2.11

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Y Yachuk v Oliver Blais Co Ltd [1949] 2 All ER 150 …. 4.3.16 Yared v Glenhurst Gardens (2002) 10 BPR 19,485 …. 14.2.15 Yarmouth v France (1887) 19 QBD 647 …. 6.3.12C Yates v Jones (1990) Aust Torts Reports 81-009 …. 4.3.14 — v Mobile Marine Repairs Pty Ltd [2007 NSWSC 1463 …. 8.3.12, 18.2.19 Ybarra v Spangard 154 P 2d 687 (1944) …. 3.4.16 York v R (2005) 225 CLR 466 …. 3.1.37 York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391 …. 14.6.9 Young v Wheeler (1987) Aust Torts Reports 80-126 …. 14.5.2 YPRM and National Disability Insurance Agency [2016] AATA 1023 …. 1.4.31 Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 …. 2.2.17C, 16.3.20

Z Zadow v Scanlon (1984) 2 MVR 43 …. 7.7.14 Zahra v Brown (2006) 45 MVR 505 …. 8.2.17

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Zalewski v Turcarolo [1995] 2 VR 562 …. 2.6.35 Zaluzna v Australian Safeway Stores Pty Ltd (unreported, Vic (FC), 1 June 1989) …. 7.5.4 Zanker v Vartzokas (1988) 34 A Crim R 11 …. 11.4.13C, 11.4.14, 11.4.15, 11.5.9 Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 …. 3.2.10, 4.2.1C, 4.2.24, 4.3.7, 4.3.9, 6.2.33, 6.2.41 Zecevic v DPP (Vic) (1987) 162 CLR 645 …. 13.4.1 Zhang v ROC Services (NSW) Pty Ltd [2016] NSWCA 370 …. 1.1.27 Zheng v Cai (2009) 239 CLR 446 …. 8.2.49, 8.3.1C Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354 …. 8.2.23, 17.4.9 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 …. 17.2.1, 17.2.2C Zumeris v Testa [1972] VR 839 …. 4.2.35 Zumpano v Montagnese [1997] 2 VR 525 …. 16.3.12C, 16.3.14, 16.3.15, 16.3.17 Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd (2009) 240 CLR 391 …. 1.1.27

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Table of Statutes References are to paragraphs Statute extracts are in bold

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COMMONWEALTH Acts Interpretation Act 1901 s 15AB …. 10.2.2C Australian Consumer Law see Competition and Consumer Act 2010 Sch 2 Australian Federal Police Act 1979 s 64B …. 17.3.26 s 64B(3) …. 8.1.17 Australian Securities and Investments Commission Act 2001 …. 16.1.13 s 12DA …. 16.1.13 s 12GF …. 16.1.13 ss 12GP–12GW …. 18.2.19 s 12GQ …. 18.2.19 Aviation Legislation Amendment (Liability and Insurance) Act 2012 …. 15.1.6 s 11A …. 15.1.6 s 11B …. 15.1.6 Broadcasting Act 1942 s 88A …. 14.1.27 Civil Aviation (Carriers’ Liability) Act 1959 …. 1.4.24, 15.1.6 s 12 …. 9.2.2S s 12(8) …. 9.2.14 s 31 …. 9.2.10 s 35 …. 9.2.2S s 35(8) …. 9.2.14

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Civil Aviation (Damage by Aircraft) Act 1958 …. 12.4.3 s 11 …. 9.2.2S Competition and Consumer Act 2010 …. 1.4.6, 1.5.25, 7.3.1, 16.1.13 Pt VIA …. 18.2.19 Pt VIB …. 9.2.2S Pt VIB Div 3 …. 8.2.56 Pt X …. 1.5.11 s 45 …. 1.5.11 s 47 …. 1.5.11 s 82 …. 1.5.11 ss 87CB–87CI …. 18.2.19 s 87CC …. 18.2.19 s 87E …. 8.1.9, 9.2.18 s 87E(1)(a) …. 9.2.2S s 87T …. 8.2.56 s 87U …. 8.2.22, 9.2.18 s 87W …. 8.2.33 s 87Y …. 8.2.39 s 87Z …. 8.2.23 s 87ZA(1)(b) …. 8.2.34 s 87ZB …. 8.1.9 s 87ZC …. 8.2.6 s 137C …. 16.1.14 s 138 …. 9.2.18 s 138B(2)(b) …. 9.2.18 s 138C(3)(b) …. 9.2.18 s 139A …. 15.3.2 Sch 2 …. 3.1.5, 3.1.72, 6.3.29, 7.3.1, 9.1.4, 9.2.2S, 10.1.5, 15.3.1S, 15.3.5, 16.1.13, 16.2.30 Sch 2 Pt 2-2 …. 16.1.13 Sch 2 Pt 3-2 Div 1 …. 2.2.10, 15.3.2 Sch 2 Pt 3-5 …. 2.2.10, 9.2.18, 15.3.4, 15.3.6, 16.3.18 Sch 2 Pt 5-4 Div 2 …. 9.2.18 Sch 2 s 4 …. 16.1.13 Sch 2 s 7(1)(e) …. 15.3.3 Sch 2 s 18 …. 2.6.26, 5.1.13, 16.1.13, 16.1.14

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Sch 2 s 18(2) …. 16.1.13 Sch 2 s 20 …. 2.6.26 Sch 2 s 21 …. 2.6.26 Sch 2 s 54 …. 7.4.2C, 15.3.3 Sch 2 s 54(6) …. 15.3.5 Sch 2 s 60 …. 2.6.26, 6.3.29 Sch 2 s 61 …. 6.3.29 Sch 2 s 138(3) …. 9.2.2S, 9.2.18 Sch 2 s 139 …. 15.3.6 Sch 2 s 142 …. 15.3.5 Sch 2 s 142(a)(ii) …. 15.3.5 Sch 2 s 142(b) …. 3.1.72 Sch 2 s 142(c) …. 15.3.5 Sch 2 s 145 …. 9.1.4 Sch 2 s 148 …. 3.1.72 Sch 2 s 236 …. 10.1.5, 16.1.13 Sch 2 s 271 …. 15.3.3 Sch 2 s 272 …. 15.3.3 Conciliation and Arbitration Act 1928 s 40 …. 10.2.2C s 49A …. 10.2.2C Constitution …. 1.5.6, 2.6.46C, 2.6.48 Ch III …. 2.6.16C s 51(xix) …. 11.5.3 s 51(xx) …. 12.4.3 s 51 (xxvii) …. 11.5.3 s 51(xxxi) …. 2.6.48, 14.3.5 s 109 …. 13.2.48, 13.2.53 Corporations Act 2001 ss 728–729 …. 2.2.4 ss 1041L–1041S …. 18.2.19 s 1041M …. 18.2.19 Crimes Act 1914 s 3W …. 11.5.8 s 3W(1) …. 13.5.5

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s 3W(1)(b) …. 13.5.5 Crimes (Administration of Sentences) Act 1999 …. 11.5.8 s 78A …. 11.5.8 s 79(c1) …. 11.5.8 Crimes (Administration of Sentences) Amendment Act 2009 …. 11.5.8 Damage by Aircraft Act 1999 …. 12.4.3 s 10 …. 15.1.6 s 11 …. 9.2.2S Disability Discrimination Act 1992 …. 3.1.34 Family Law Act 1975 …. 11.4.20, 13.2.38, 13.2.43, 13.2.46, 13.2.48, 13.2.53 s 67ZC …. 13.2.43, 13.2.46, 13.2.53 s 119 …. 7.7.19, 17.4.6 Federal Court of Australia Act 1976 Pt IVA …. 7.41 s 33J …. 7.4.2C s 33V …. 7.4.2C s 33ZB(b) …. 7.4.2C Health and Other Services (Compensation) Act 1995 …. 1.4.7, 8.2.53 s 38 …. 8.2.53 Income Tax Assessment Act 1936 s 248 …. 11.5.16 Industrial Relations Act 1904 …. 10.2.2C s 2 …. 10.2.2C Industrial Relations Act 1988 …. 10.2.2C s 3 …. 10.2.2C s 90 …. 10.2.2C s 111 …. 10.2.2C s 178 …. 10.2.2C s 179 …. 10.2.2C s 356 …. 10.2.2C Insurance Contracts Act 1984 s 65 …. 7.7.25, 18.2.12 s 66 …. 7.7.25, 18.1.10, 18.2.12 Military Rehabilitation and Compensation Act 2004 …. 1.4.1 Migration Act 1958 …. 10.2.12, 11.5.7, 11.5.8

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s 5 …. 11.5.8 s 189(1) …. 11.5.3 Migration Regulations 1994 reg 5.35 …. 13.3.8 National Disability Insurance Scheme Act 2013 …. 1.4.31 Ch 5 …. 1.4.31 s 3 …. 1.4.31 s 22 …. 1.4.31 s 24 …. 1.4.31 National Disability Insurance Scheme (Supports for Participants — Accounting for Compensation) Rules 2013 …. 1.4.31 Navigation Act 1912 …. 10.2.20C s 59A …. 6.1.5 Navigation (Loading and Unloading) Regulations reg 4 …. 10.2.20C reg 31 …. 10.2.20C reg 53 …. 10.2.20C Occupational Health and Safety Act 1991 s 79 …. 10.1.14 Privacy Act 2012 …. 16.2.8 Privacy Act 1988 …. 16.2.20 Safety, Rehabilitation and Compensation Act 1988 …. 1.4.1, 1.4.4 Seafarers Rehabilitation and Compensation Act 1992 …. 1.4.1 Social Security Act 1991 …. 1.1.19, 1.1.20, 8.2.54, 10.2.12 Pt 2.3 …. 1.1.18 Pt 2.14 …. 1.1.18 Pt 3.14 …. 8.2.54 Superannuation Guarantee (Administration) Act 1992 …. 8.2.23 Taxation Laws Amendment Act (No 2) 2000 Sch 2 …. 3.2.23 Trade Practices Act 1974 …. 1.4.6, 1.5.25, 15.3.1S, 16.2.33 see also Competition and Consumer Act 2010 Pt V Div 2 …. 15.3.2 Pt V Div 2A …. 15.3.3 Pt VA …. 15.3.4 s 45DB …. 11.2.2 s 45DD(3) …. 11.2.2

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s 52 …. 5.1.13, 16.1.13, 16.1.14 s 52(1) …. 5.1.16C s 53B …. 1.5.25 s 74 …. 6.3.29 s 74(2A) …. 7.5.10 s 74B …. 7.4.2C, 15.3.3 s 74D …. 7.4.2C, 15.3.3 s 75AD …. 15.3.4 s 75AE …. 15.3.6 s 75AK(1)(a) …. 15.3.5 s 75AK(1)(c) …. 15.3.5 s 75AN …. 15.3.5 s 82 …. 1.5.25, 10.1.5 s 82(1) …. 5.1.16C Veterans’ Entitlements Act 1986 …. 1.4.1 Work Health and Safety Act 2011 s 17 …. 10.2.44 s 18 …. 10.2.44 s 267 …. 10.2.44

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AUSTRALIAN CAPITAL TERRITORY Building Act 2004 Pt 6 …. 16.3.17 s 141 …. 18.2.19 s 142 …. 5.2.7 Civil Law (Wrongs) Act 2002 …. 7.5.7, 11.4.5 Ch 2 Pt 2.2 …. 7.7.15 Ch 2 Pt 2.2A …. 7.7.15 Ch 2 Pt 2.3 …. 7.9.14 Ch 2 Pt 2.5 …. 18.2.4S Ch 2 Pt 3.2 …. 7.10.14S Ch 8 …. 7.6.12S Pt 2.4 …. 9.1.4 Pt 3.1 …. 9.2.2S Pt 7A …. 18.2.19

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Pt 7.3 …. 6.2.4S Pt 12.2 …. 15.2.25 s 5 …. 7.7.15 s 16(3) …. 9.1.6 s 16(4) …. 9.1.6 s 27 …. 6.2.4S, 6.2.6 s 33 …. 7.10.2 s 40 …. 5.1.3 s 41 …. 3.1.1 s 42 …. 3.2.1 s 43 …. 3.1.1 s 44 …. 3.1.1 s 44(c) …. 3.1.59 s 45 …. 4.1.1 s 45(2) …. 4.2.6, 4.2.25 s 46 …. 4.1.1 s 47 …. 6.2.4S s 94 …. 7.11.6S s 95 …. 6.2.55 s 96 …. 6.2.55 s 96(5) …. 6.2.55, 6.3.1 s 97 …. 6.2.58 s 98 …. 8.2.22, 9.2.18 s 99 …. 8.2.56 s 100 …. 8.2.35 s 101 …. 7.5.2 s 102(2) …. 10.2.57 s 106 …. 8.2.6 s 107B(3)(b) …. 18.2.19 s 107C …. 18.2.19 s 107E …. 18.2.19 s 111 …. 10.2.13 s 168 …. 7.5.2 s 212 …. 15.2.1 s 213 …. 15.2.1

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s 214 …. 7.1.3 s 216 …. 6.1.5 Sch 4 …. 3.2.30 Sch 4 cl 4.2(1)(a) …. 3.2.30 Court Procedures Act 2004 Sch 1 Pt 1.2 cl 17(h)(i) …. 8.2.6 Compensation (Fatal Injuries) (Amendment) Act 1991 s 11 …. 10.2.56 Domestic Animals Act 2000 s 55 …. 15.2.26 Human Rights Act 2004 s 10 …. 13.2.32 Justice and Community Safety Legislation Amendment Act 2016 (No 2) …. 11.4.24 Law Reform (Miscellaneous Provisions) Act (No 2) 1991 s 20A …. 10.2.56 Lifetime Care and Support (Catastrophic Injuries) Act 2014 …. 1.1.34 Lifetime Care and Support (Catastrophic Injuries) Amendment Act 2016 …. 1.4.32 Limitation Act 1985 …. 5.2.1 s 21C …. 11.4.24 s 40 …. 5.2.7 Medical Treatment (Health Directions) Act 2006 …. 13.2.28 Road Transport (Safety and Traffic Management) Regulations 2000 reg 69 …. 3.1.55 Road Transport (Third-Party Insurance) Act 2008 …. 1.1.27 s 7 …. 1.1.27 s 167 …. 1.1.28 Transplantation and Anatomy Act 1978 s 23 …. 13.3.9 Victims of Crime (Financial Assistance) Act 2016 …. 1.4.23 Work Safety Act 2008 s 225 …. 10.1.14 Workers Compensation Act 1951 …. 1.4.1

NEW SOUTH WALES Animals Act 1977 …. 15.2.18C, 15.2.25 Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 4 …. 15.2.1 s 5 …. 15.2.1 s 7(2)(b) …. 7.1.3 Casino Control Act 1992 …. 11.4.7C Children and Young Persons (Care and Protection) Act 1998 s 27 …. 10.2.17 s 174 …. 13.2.44, 13.3.2, 13.3.9 s 175 …. 13.2.48 Civil Aviation (Carriers’ Liability) Act 1967 …. 15.1.6 Civil Liability Act 2002 …. 3.1.1, 3.1.25C, 3.2.27, 4.1.1, 4.1.3, 4.1.6, 4.2.1C, 4.2.12, 4.2.31, 4.3.1, 5.1.15, 6.2.57, 6.3.29, 7.5.7, 7.5.12, 7.6.2, 7.9.3, 7.10.16, 8.1.9, 8.2.14, 8.3.2, 9.2.18, 11.4.6, 17.4.9, 17.4.10, 17.4.11, 17.6.21 Pt 1 …. 9.2.17C Pt 1A …. 4.1.2S, 4.2.1C, 5.1.3 Pt 1A Div 3 …. 4.2.1C Pt 1A Div 5 …. 6.3.22 Pt 1A Div 8 …. 6.2.4S Pt 2 …. 8.1.2, 8.1.3, 8.3.11, 9.2.17C Pt 2 Div 3 …. 8.2.56 Pt 3 …. 3.1.3, 7.10.14S Pt 4 …. 18.2.19, 18.2.20S Pt 5 …. 7.6.12S, 7.6.15 Pt 7 …. 7.11.6S Pt 8 …. 7.7.15 Pt 8A …. 7.7.15 Pt 9 …. 7.7.15 Pt 10 …. 7.9.14 s 3 …. 8.1.2, 9.2.17C, 11.6.2C, 18.1.10 s 3A(2) …. 18.1.7 s 3B …. 3.1.1, 8.1.9, 17.4.9, 17.4.11 s 3B(1)(a) …. 11.4.5, 11.4.6, 17.4.9 s 3B(1)(f) …. 7.10.14S s 3B(2)(e) …. 7.10.14S s 3C …. 17.4.10, 17.6.21 s 4 …. 18.1.10 s 5 …. 5.1.3, 5.1.15, 18.1.10

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 5A(1) …. 5.1.17 s 5B …. 2.4.16C, 3.1.1, 3.1.3, 3.1.15, 6.2.11, 7.5.14 s 5B(1) …. 3.1.2 s 5B(1)(a) …. 3.1.5, 3.1.11 s 5B(1)(b) …. 3.1.11 s 5B(1)(c) …. 3.1.13 s 5B(2) …. 3.1.13, 3.1.15, 3.1.24 s 5B(2)(a) …. 3.1.25C s 5B(2)(b) …. 3.1.32 s 5B(2)(c) …. 3.1.39C s 5B(2)(d) …. 3.1.46 s 5C …. 3.1.1, 6.2.11 s 5C(c) …. 3.1.59 s 5D …. 4.1.1, 4.2.1C, 4.3.2, 4.3.4C, 4.3.5, 4.3.7, 4.3.9, 6.2.39 s 5D(1) …. 4.1.1, 4.1.3, 4.2.1C, 4.3.4C s 5D(1)(a) …. 4.1.4, 4.2.1C, 4.2.6, 4.2.11, 4.2.16, 4.2.24, 4.2.30, 4.2.31, 4.2.34, 4.3.4C, 4.3.7, 4.3.9 s 5D(1)(b) …. 4.1.4, 4.2.6, 4.2.24, 4.2.35, 4.3.1, 4.3.4C, 4.3.7, 4.3.9 s 5D(2) …. 3.3.16, 4.1.1, 4.1.4, 4.2.1C, 4.2.4, 4.2.6, 4.2.11, 4.2.19, 4.2.25, 4.2.30, 4.2.31, 4.2.34, 4.3.4C, 4.3.7, 4.3.9, 8.3.2 s 5D(3) …. 4.1.1, 4.2.9, 4.3.4C s 5D(3)(a) …. 4.1.1, 4.2.9, 4.3.4C s 5D(3)(b) …. 4.1.1, 4.2.9, 4.2.10, 4.3.4C s 5D(4) …. 4.1.4, 4.2.6, 4.2.24, 4.2.35, 4.3.1, 4.3.4C, 4.3.7, 4.3.8, 4.3.9, 4.3.35, 4.3.50 s 5E …. 4.1.1, 4.2.1C, 4.2.17, 4.2.25, 4.2.29, 4.2.34, 4.3.4C, 4.3.23, 7.9.3, 10.2.53 s 5F …. 6.3.2, 6.3.12C s 5F(5) …. 6.3.2 s 5G …. 6.3.2, 6.3.12C s 5H …. 7.5.11 s 5I …. 3.1.56, 3.1.57, 3.1.58, 6.3.2 s 5M …. 6.3.23 s 5M(3) …. 6.3.23 s 5O …. 2.4.16C, 2.4.20, 3.1.71 s 5O(1) …. 3.2.27 s 5O(2) …. 3.2.27 ss 5O–5P …. 3.2.27

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 5Q …. 17.6.21 s 5R …. 6.2.11, 6.2.39, 6.2.51 s 5T …. 6.2.6 s 10 …. 9.2.17C s 11 …. 8.3.11 s 11A …. 8.1.2, 8.3.11 s 12 …. 8.2.22, 9.2.17C s 12(1) …. 9.2.17C s 12(1)(a) …. 9.2.17C s 12(1)(b) …. 9.2.17C s 12(1)(c) …. 9.2.17C s 12(2) …. 9.2.17C s 13 …. 8.2.17 s 14 …. 8.2.39 s 15 …. 8.2.33 s 15B …. 8.2.35, 9.1.8 s 15C …. 8.2.23 s 16 …. 8.3.11 s 16(1) …. 1.1.22 s 17A …. 8.2.56 s 18(1)(b) …. 8.2.34 s 21 …. 8.1.9 ss 22–26 …. 8.2.6 s 25 …. 8.2.6 s 29 …. 7.10.2 s 30 …. 7.10.15 s 30(2) …. 3.1.3, 7.10.16 s 30(2)(a) …. 7.10.15, 7.10.16 s 31 …. 7.10.6 s 32 …. 7.10.7 s 34(1)(a) …. 18.2.19 s 34(2) …. 18.2.21 s 34A …. 18.2.19 s 42 …. 3.1.69, 7.6.13 s 42(b) …. 3.1.68

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 42(d) …. 3.1.71 s 43 …. 2.4.16C, 10.2.13 s 43(2) …. 10.2.13 s 43A …. 2.4.16C, 2.4.20, 7.6.2, 7.6.14, 7.6.15, 7.6.16, 7.6.20 s 43A(2) …. 7.6.16 s 46 …. 7.6.13 s 50 …. 6.2.57 s 50(2) …. 6.2.57 s 50(3) …. 6.2.57 s 50(4) …. 6.2.57 ss 51–53 …. 13.4.4 s 52 …. 7.11.7, 11.4.17 s 61 …. 17.6.21 s 71 …. 7.2.21 ss 72–73 …. 12.4.3 Civil Liability Amendment (Personal Responsibility) Act 2002 …. 6.2.54 Sch 3 …. 10.2.55 Civil Procedure Act 2005 ss 81–84 …. 8.2.8 Coal Mines Regulations Act 1912–33 …. 10.2.59 s 54 reg 1(a) …. 10.2.59 Companion Animals Act 1998 …. 15.2.27, 12.5.31 s 12A …. 15.2.30 s 25 …. 15.2.29, 15.2.30, 15.2.31 ss 25–28 …. 15.2.26 s 25(1) …. 15.2.31 s 25(1)(a) …. 15.2.27 s 25(2) …. 15.2.29, 15.2.31 s 25(2)(a) …. 15.2.28 s 25(2)(b) …. 15.2.28 s 28 …. 15.2.28 Compensation to Relatives Act 1897 …. 9.2.2S, 9.2.17C s 3 …. 9.2.17C s 4 …. 9.2.17C Construction Safety Regulations 1950

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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reg 6(1) …. 10.2.47C reg 73 …. 10.2.38 reg 73(4) …. 10.2.40 reg 80(6) …. 10.2.47C Contracts Review Act 1980 …. 6.3.29 Conveyancing Act 1919 s 88K …. 12.4.8 s 88K(1) …. 12.4.8 s 88K(2) …. 12.4.8 s 88K(3) …. 12.4.8 s 88K(4) …. 12.4.8 s 177 …. 10.2.7, 14.1.25 Crown Proceedings Act 1988 s 5 …. 2.6.46C s 5(2) …. 7.6.1 Dangerous Goods Regulation 1978 …. 10.2.9, 10.2.42 Defamation Act 2005 s 7(2) …. 8.1.3 s 37 …. 8.1.11 Director of Public Prosecutions Act 1986 s 15A …. 10.2.16 s 15A(1) …. 10.2.16 Dust Diseases Tribunal Act 1989 …. 9.1.8 s 11A …. 8.2.7 s 12A …. 5.2.3 s 12B …. 9.1.4, 9.1.5 s 12D …. 9.1.8 s 25B …. 4.2.14 Employees Liability Act 1991 …. 18.1.10 s 6 …. 18.1.10 Encroachment of Buildings Act 1922 …. 12.5.6 Guardianship Act 1987 …. 13.2.21, 13.2.36 Pt V …. 13.2.48 Health Care Complaints Act 1993 Pt 2 Div 8 …. 7.9.15

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Health Care Liability Act 2001 …. 7.9.3 Pt 2 …. 9.2.17C Pt 3 …. 1.1.16 s 9 …. 9.2.17C Health Practitioner Regulation National Law 2009 …. 7.9.11 s 139B …. 7.9.11 s 139E …. 7.9.11 Home Building Act 1989 Pt 2C …. 16.3.17 Pt 6 …. 16.3.17 Human Tissue Act 1983 s 20F …. 3.1.52 James Hardie (Civil Liability) Act 2005 Pt 3 …. 9.1.7 Law Enforcement (Powers and Responsibilities) Act 2002 s 201 …. 13.5.6 Law Reform (Miscellaneous Provisions) Act 1944 s 2 …. 9.1.4 Law Reform (Miscellaneous Provisions) Act 1946 Pt 3 …. 18.2.4S s 5(1)(b) …. 18.2.11 s 5(1)(c) …. 18.2.14C s 5(2) …. 15.2.18C Law Reform (Miscellaneous Provisions) Act 1965 …. 10.2.56, 15.2.18C Pt 3 …. 6.2.4S s 7 …. 10.2.55 s 10 …. 15.2.18C Law Reform (Vicarious Liability) Act 1983 …. 8.2.4, 17.3.25 Pt 4 …. 17.3.26 s 7 …. 10.2.21, 17.4.7 s 8 …. 8.1.10, 17.3.26 Legal Profession Act 1987 s 187 …. 7.4.2C Limitation Act 1969 …. 5.2.1 s 6A …. 11.4.24

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Limitation Amendment (Child Abuse) Act 2016 …. 11.4.24 Local Government Act 1919 …. 10.2.6C, 16.2.10 Pt XI …. 10.2.6C s 318 …. 10.2.6C s 318(8) …. 10.2.6C ss 318(8)–(17) …. 10.2.6C s 318(17) …. 10.2.6C Local Government Act 1993 ss 651A–651C …. 12.5.7 Medical Practitioners Act 1938 …. 7.9.9 s 27(1) …. 7.9.9 Mental Health Act 1990 …. 2.4.16C, 2.4.18, 2.4.20 Ch 4 Pt 2 Div 1 …. 2.4.16C s 4(2)(b) …. 2.4.16C s 20 …. 2.4.16C, 2.4.18 ss 20–37A …. 2.4.16C s 24 …. 13.3.12 s 35 …. 2.4.16C Mental Health Act 2007 …. 2.4.18, 12.1.5 s 12 …. 2.4.18 Minors (Property and Contracts) Act 1970 s 49 …. 13.2.41 Motor Accidents Act 1988 s 74(2)(b) …. 6.2.7C Motor Accidents Compensation Act 1999 …. 1.1.27, 3.2.5, 3.2.18, 8.2.14 Ch 2 …. 1.1.27 Pt 1.2 …. 1.1.27 Pt 1.2 Div 1 …. 1.4.20, 1.4.21, 6.2.36, 6.2.41 Pt 1.2 Div 2 …. 1.4.20, 1.4.22, 6.2.36 Pt 3.2 …. 1.1.27, 1.4.20 Pt 4.4 …. 1.1.33 Pt 5.3 …. 8.2.56 s 3 …. 1.1.29, 1.4.12, 1.4.21 s 3A …. 1.1.27, 1.4.25 s 5(1)(a) …. 1.1.30

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 5(1)(b) …. 1.1.33 s 7A …. 1.4.21 s 7B(1) …. 1.4.21 s 7C …. 1.4.21 s 7E …. 1.4.21 s 7F …. 1.4.21 s 7J(3) …. 1.4.22 s 7K …. 1.4.22, 6.2.36 s 7L …. 1.4.22 s 7P(2) …. 1.4.22 s 10 …. 1.1.27 s 11 …. 1.1.27 s 12 …. 1.1.27 s 14(1) …. 1.1.29 s 16 …. 1.1.27 s 20 …. 1.1.28 s 21 …. 1.1.28 s 23 …. 1.1.28 s 33 …. 1.1.28 s 34 …. 1.1.28 s 37 …. 1.1.28 s 39 …. 1.1.28 s 48 …. 1.4.20 s 51 …. 1.4.20 s 72(2) …. 1.1.33 s 78 …. 1.1.28, 1.1.33 s 78(1)(b) …. 1.1.28 s 80(1) …. 1.1.28, 1.1.33 s 80(2) …. 1.1.28 s 81(1) …. 1.1.33 s 84 …. 1.1.30 s 84A …. 1.1.30 s 85 …. 1.1.28 s 92 …. 1.1.33 s 94 …. 1.1.33

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 94(1)(b) …. 1.1.33 s 95 …. 1.1.33 s 108 …. 1.1.33 s 125 …. 8.2.22, 9.2.17C, 9.2.18 s 125(2) …. 9.2.17C s 126 …. 8.2.17 s 131 …. 1.1.22 s 136 …. 4.3.46 s 137(2) …. 8.2.34 s 138 …. 6.2.55, 6.2.58 s 138(2) …. 6.2.56 s 138(2)(a) …. 6.2.55 s 140 …. 6.2.55, 6.3.1, 6.3.26 s 141 …. 3.2.36 s 141A …. 1.4.20 s 141B …. 8.2.33 s 142 …. 8.2.36 s 144 …. 8.1.9, 8.1.17 s 145 …. 1.1.29 s 151 …. 1.1.33 s 216 …. 1.1.29 Motor Accidents Compensation Amendment Act 2006 …. 1.4.11 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 …. 3.2.36 Motor Accidents (Lifetime Care and Support) Act 2006 …. 1.1.34, 1.4.11, 1.4.20 s 7(3) …. 1.4.20 Motor Vehicles (Third Party Insurance) Act 1942 …. 7.2.15, 8.1.14C s 19(2) …. 6.3.26 Occupational Health and Safety Act 2000 …. 10.2.27 s 32 …. 10.1.14 s 39A …. 10.1.14 Partnership Act 1892 …. 17.1.4 Passenger Transport Act 1990 s 32G(1)(d) …. 1.2.1 s 39G(1)(d) …. 1.2.1 Passenger Transport Regulation 2007

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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cl 131 …. 1.2.1, 17.5.12 Police Act 1990 s 201 …. 10.2.16 s 213 …. 7.7.16 Professional Standards Act 1994 …. 3.2.30 s 5(1)(a) …. 3.2.30 Roads Act 1933 …. 17.6.16C s 71 …. 17.6.16C Real Property Act 1900 …. 12.3.4C s 45D …. 12.3.4C Sale of Goods Act 1923 s 19(1) …. 7.3.7 s 19(2) …. 7.3.7 Scaffolding and Lifts Act 1912 …. 10.2.23 Scaffolding and Lifts Regulations reg 139(7) …. 10.2.23 Sporting Injuries Insurance Act 1978 …. 1.4.24, 3.2.40 Statutory Duties (Contributory Negligence) Act 1945 …. 10.2.20C, 10.2.55, 10.2.56 s 2 …. 10.2.20C, 10.2.55 s 425 …. 10.2.20C Strata Schemes Management Act 1996 s 62(1) …. 10.2.10 Supreme Court Act 1970 …. 11.1.15 Trees (Disputes between Neighbours) Act 2006 …. 14.2.14, 14.5.1 s 4(4) …. 14.2.14 Victims Rights and Support Act 2013 …. 1.4.23 Water Traffic Regulations …. 17.1.7 Work Health and Safety Regulation 2011 cl 78(4) …. 10.2.39 Workers Compensation Act 1987 …. 1.4.1, 10.2.55 Pt 5 Div 3 …. 9.2.17C s 67 …. 1.4.7 s 151AA …. 6.1.5 s 151AB …. 4.2.21 s 151AD …. 7.10.14S

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

s 151I …. 8.2.22, 9.2.17C s 151I(1) …. 9.2.17C s 151N …. 10.2.55 s 151O …. 6.2.55, 6.3.1, 6.3.26, 10.2.58 s 151R …. 8.1.9 s 151Z …. 1.4.8 s 151Z(2) …. 18.2.18 Workers Compensation (Benefits) Amendment Act 1989 …. 10.2.55, 10.2.58 Workers’ Compensation (Dust Diseases) Act 1942 …. 1.4.1, 9.1.8 Workplace Injury Management and Workers Compensation Act 1998 …. 1.4.1

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NORTHERN TERRITORY Advance Personal Planning Act …. 13.2.28 Building Act 1993 s 160 …. 5.2.7 Compensation (Fatal Injuries) Act 1974 …. 9.2.2S, 9.2.15 s 7(2) …. 9.2.8 s 10(3)(e)(ii) …. 9.2.15 s 10(3)(f) …. 9.2.14 s 10(4)(g) …. 9.1.7, 9.2.20 s 10(4)(h) …. 9.2.21 s 10(5) …. 9.2.8 Emergency Medical Operations Act …. 13.3.2 Encroachment of Buildings Act …. 12.5.6 s 14 …. 12.5.6 Law Reform (Miscellaneous Provisions) Act 1956 Pt II …. 9.1.4 Pt IV …. 18.2.4S Pt V …. 6.2.4S s 22 …. 6.1.5 s 22A …. 18.1.10 s 22A(2) …. 18.1.10 s 24 …. 7.10.2 s 29A …. 7.7.32 s 32 …. 15.2.26

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Limitation Act 1981 …. 5.2.1, 11.4.24 s 12(2)(a) …. 5.2.3 Motor Accidents (Compensation) Act 1979 …. 1.1.34, 1.4.11 s 4A …. 1.1.27, 1.4.12, 1.4.19 s 4A(3) …. 1.1.27 s 5 …. 1.4.19 s 6 …. 1.1.27 s 7(3) …. 1.4.19 ss 9–11 …. 1.4.19 Personal Injuries (Liabilities and Damages) Act 2003 …. 11.4.5 Pt 2 Div 2 …. 7.9.14 Pt 4 Div 4 …. 8.2.56 s 3 …. 5.1.3 s 4 …. 8.1.9 s 7 …. 7.7.15 s 7A …. 7.7.15 s 8 …. 7.7.15 s 9 …. 7.5.10 s 10 …. 7.11.6S s 14 …. 6.2.55 s 15 …. 6.2.55 s 19 …. 8.1.9 s 20 …. 8.2.22, 9.2.18 s 21 …. 8.2.17 s 22 …. 8.2.39 s 23 …. 8.2.33 s 29(b) …. 8.2.34 s 31 …. 8.2.6 s 32 …. 8.2.6 Police Administration Act 1978 s 148C …. 17.3.26 s 148C(3) …. 8.1.17 Professional Standards Act 2004 …. 3.2.30 Property Law Act ss 163–164 …. 12.4.8

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

Proportionate Liability Act 2005 …. 18.2.19 s 4(3)(b) …. 18.2.19 s 7 …. 18.2.19 s 15(2) …. 18.1.7 Return to Work Act 2015 …. 1.4.1 Victims of Crime Assistance Act 2006 …. 1.4.23 Work Health Act 1986 …. 1.4.6 s 52 …. 1.4.6 Workplace Health and Safety Act s 63 …. 10.1.14

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QUEENSLAND Air Navigation Act 1937 Pt 3 …. 12.4.3 Civil Aviation (Carriers’ Liability) Act 1964 …. 15.1.6 Civil Liability Act 2003 …. 6.3.20, 8.2.14 Ch 2 Pt 1 Div 4 …. 6.3.22 Ch 2 Pt 1 Div 6 …. 6.2.4S Ch 2 Pt 2 …. 18.2.19 Ch 2 Pt 3 Div 1 …. 7.6.12S Ch 2 Pt 3 Div 2 …. 7.7.15 Ch 4 Pt 1 …. 7.9.14 Ch 4 Pt 1A …. 7.9.14 s 5 …. 3.1.1 s 7(2) …. 7.5.15 s 9 …. 3.1.1 s 10 …. 3.1.1 s 10(c) …. 3.1.59 s 11 …. 4.1.1 s 12 …. 4.1.1 s 13 …. 6.3.2 s 14 …. 6.3.2, 6.3.8 s 15 …. 7.5.11 s 16 …. 3.1.56, 6.3.2 s 20 …. 3.2.27

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 21 …. 3.2.26, 7.9.5 s 22 …. 3.2.27 s 22(2) …. 3.2.27 s 23 …. 6.2.11 ss 25–27 …. 7.7.16 s 28(3)(b) …. 18.2.19 ss 32D–32E …. 18.2.19 s 35 …. 7.6.13 s 36 …. 10.2.13 s 45 …. 7.11.6S s 47 …. 6.2.55 s 48 …. 6.2.55 s 48(4) …. 6.2.55 s 48(5) …. 6.2.55, 6.3.1 s 49A …. 7.2.21 s 49B …. 7.2.21 s 52 …. 8.1.9, 8.1.17 s 52(2) …. 8.1.9, 11.4.5 s 53 …. 4.3.46 s 54 …. 8.2.22 s 55 …. 8.2.17 s 56 …. 8.2.23 s 57 …. 8.2.39 s 59 …. 8.2.33 s 59A …. 8.2.35 s 59B …. 8.2.35 s 60(1)(b) …. 8.2.34 s 61 …. 8.2.56 s 61(1)(c)(ii) …. 8.2.56 s 62 …. 8.2.56 ss 63–67 …. 8.2.6 s 66 …. 8.2.6 Sch 2 Dictionary …. 5.1.3 Civil Liability Regulation 2014 …. 8.2.60 Sch 1 …. 7.7.16

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Sch 2 …. 7.7.16 Sch 4 …. 8.2.60 Civil Proceedings Act 2011 s 60 …. 8.2.21 s 61 …. 8.2.39 s 62 …. 9.2.2S s 63 …. 9.2.2S s 64 …. 9.2.2S s 65 …. 9.2.2S s 66 …. 9.2.2S ss 67–68 …. 9.2.21 s 70 …. 9.2.20 Criminal Code s 679 …. 12.1.5 Defamation Act 2005 s 7(2) …. 8.1.3 Domestic Building Contracts Act 2000 Pt 4 …. 16.3.17 Factories and Shops Act 1960 …. 10.2.14 Forestry Act 1959 ss 96E–96G …. 7.5.15 Law Reform Act 1995 Pt 2 …. 6.1.5 Pt 3 Div 2 …. 18.2.4S Pt 3 Div 3 …. 6.2.4S Pt 5 …. 7.7.15 Limitation of Actions Act 1974 …. 5.2.1, 11.4.24 s 11(2) …. 5.2.3 s 31 …. 5.2.4C s 31(2) …. 5.2.4C Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 …. 14.2.14 s 52 …. 14.2.14 s 54 …. 14.5.1 s 66 …. 14.2.14 Police Service Administration Act 1990

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 10.5 …. 17.3.26 Powers of Attorney Act 1998 …. 13.2.28 Professional Standards Act 2004 …. 3.2.30 s 6(1)(a) …. 3.2.30 Property Law Act 1974 Pt XI …. 12.5.6 s 180 …. 12.4.8, 12.4.9 ss 195–198 …. 12.5.6 Marine Parks Act 2004 s 147 …. 7.5.15 Motor Accident Insurance Act 1994 …. 1.1.31 Pt 3 …. 1.1.27 Pt 4 Divs 1–5A …. 1.1.32 s 5 …. 1.1.27 s 55 …. 8.1.17 s 58 …. 1.1.25 National Injury Insurance Scheme (Queensland) Act 2016 …. 1.1.34 ss 42–44 …. 1.1.34 Nature Conservation Act 1992 s 142 …. 6.3.22, 7.5.15 Personal Injuries Proceedings Act 2002 …. 1.1.32 s 6 …. 1.1.32 Police Service Administration Act 1990 s 10.5 …. 7.6.1 Public Service Act 2008 ss 26A–26C …. 7.6.1 Recreation Areas Management Act 2006 s 228 …. 7.5.15 Succession Act 1981 s 66 …. 9.1.3, 9.1.4 s 66(1) …. 9.1.3 s 66(2) …. 9.1.3 s 66(2)(a) …. 8.2.61, 9.1.3 s 66(2)(d)(ii) …. 9.1.3 s 66(2)(d)(iii) …. 9.1.3

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Survival of Causes of Action Act 1940 s 3(1)(a) …. 8.2.61 Transplantation and Anatomy Act 1979 s 20 …. 13.3.9 Transport Operations (Road Use Management) Act 1995 ss 135–136 …. 12.5.7 Victims of Crime Assistance Act 2009 …. 1.4.23 Workers’ Compensation and Rehabilitation Act 2003 …. 1.4.1 Ch 4A Pt 5 …. 1.4.33 Ch 5 Pt 5 …. 1.1.32 Ch 5 Pt 6 …. 1.1.32 s 54 …. 9.2.18 s 305A …. 3.1.1 s 305B …. 3.1.1 s 305B(2) …. 3.1.13 s 305C …. 3.1.1 s 305D …. 4.1.1, 4.2.19 s 305E …. 4.1.1 s 305H …. 6.2.28 s 306B …. 8.1.17 Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 s 44 …. 10.1.14 Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016 …. 1.4.32 Workplace Health and Safety Act 1989 …. 10.1.14 Workplace Health and Safety Act 1995 …. 10.1.14 s 37A …. 10.1.14

SOUTH AUSTRALIA Advance Care Directives Act 2013 …. 13.2.28 Building Work Contractors Act 1995 ss 32–35 …. 16.3.17 Civil Aviation (Carriers’ Liability) Act 1962 …. 15.1.6 Civil Liability Act 1936 …. 8.2.14 Pt 3 …. 15.2.25

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Pt 4 …. 7.5.2, 7.5.9 Pt 5 …. 9.2.2S Pt 7 …. 6.2.4S s 3 …. 5.1.3, 6.2.12C, 8.2.39 s 5C …. 3.1.1 s 18 …. 15.2.1 s 18(4) …. 7.1.3 s 19 …. 7.5.6, 7.5.7 s 20(5) …. 7.5.14 s 24(2aa)(f) …. 9.1.7 ss 28–30 …. 9.2.14 s 31(1) …. 3.2.1 s 32 …. 3.1.1 s 33 …. 7.10.14S s 34 …. 4.1.1 s 34(2) …. 4.2.6, 4.2.25 s 35 …. 4.1.1, 4.2.34 s 36 …. 6.3.2 s 36(4) …. 6.3.2 s 36(5) …. 6.3.2 s 37 …. 6.3.2 s 37(3) …. 6.3.2 s 38 …. 7.5.11 s 39 …. 3.1.56, 6.3.2 ss 40–41 …. 3.2.27 s 42 …. 7.6.12S s 43 …. 7.11.6S s 44 …. 6.2.11, 6.2.12C s 44(1) …. 6.2.11, 6.2.12C s 46 …. 6.2.55 s 47 …. 6.2.12C, 6.2.55 s 47(1) …. 6.2.12C s 47(2) …. 6.2.12C s 47(2)(b) …. 6.2.12C s 47(3) …. 6.2.12C, 6.2.55

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 47(5) …. 6.2.12C, 6.2.55 s 47(6) …. 6.2.55, 6.3.1 s 49 …. 6.2.58 s 51 …. 11.4.5 s 52 …. 8.2.56 s 53 …. 7.10.14S s 53(1) …. 7.10.16 s 54 …. 8.2.22 s 54(1) …. 8.2.22 s 54(3) …. 9.2.8, 9.2.18 s 55 …. 8.2.39 s 58 …. 8.2.33 s 59 …. 7.7.25, 18.1.10 s 59(2) …. 18.1.10 ss 61–62 …. 12.4.3 s 63 …. 6.1.5 s 65 …. 8.2.35 s 67 …. 7.2.21 s 72 …. 1.5.17 s 74 …. 7.7.15 s 74A …. 7.7.15 s 75 …. 7.9.14 Community Welfare Act 1972 …. 2.2.17C s 10 …. 2.2.17C s 25 …. 2.2.17C Consent to Medical Treatment and Palliative Care Act 1995 s 6 …. 13.2.42 s 12 …. 13.2.42 s 13 …. 13.3.2, 13.3.9 Criminal Law (Sentencing) Act 1988 s 14 …. 1.4.23 Defamation Act 2005 s 7(2) …. 8.1.3 Development Act 1993 s 73 …. 5.2.7

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Dog and Cat Management Act 1995 s 66 …. 15.2.26 s 66(3) …. 15.2.28 Dust Diseases Act 2005 s 8(1) …. 4.2.19, 4.2.26 s 9 …. 8.2.7 s 9(2) …. 8.1.9 Encroachments Act 1944 …. 12.5.6 Guardianship and Administration Act 1993 s 61 …. 13.2.48 Law of Property Act 1936 s 94 …. 17.1.5 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 …. 6.2.4S Pt 2 …. 18.2.4S Pt 3 …. 18.2.19 s 3 …. 18.2.3 s 3(2)(c) …. 18.2.19 s 6 …. 18.2.3, 18.2.4S s 6(8)(d) …. 18.2.9 s 6(9)(b) …. 18.2.9 s 6(9)(c) …. 18.1.10 Limitation of Actions Act 1936 …. 5.2.1, 11.3.3C, 11.4.24 s 35 …. 11.3.3C s 36 …. 11.3.3C Motor Vehicles Accidents (Lifetime Support Scheme) Act 2013 …. 1.1.34 Motor Vehicles Act 1959 Pt 4 …. 1.1.27 s 99(3) …. 1.1.27 s 113A …. 8.1.17 s 133 …. 6.3.26 Occupational Health, Safety and Welfare Act 1986 s 6 …. 10.1.14 s 24(2a)(a) …. 10.2.41, 10.2.43 Police Act 1998 s 65 …. 17.3.26

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

Professional Standards Act 2004 …. 3.2.30 s 5(2)(a) …. 3.2.30 Return to Work Act 2014 …. 1.4.1, 1.4.32 Sale of Goods Act 1895 …. 16.3.18 Supreme Court Act 1878 …. 11.3.3C Supreme Court Act 1935 s 30BA …. 8.2.6 Survival of Causes of Action Act 1940 …. 9.1.4 Victims of Crime Act 2001 …. 1.4.23 Wills Act 1936 s 12(2) …. 16.2.21C Work Health and Safety Act 2012 …. 10.1.17, 10.1.18 s 267 …. 10.1.18 Workers Rehabilitation and Compensation Act 1986 s 54 …. 10.2.41 Wrongs Act 1936 Pt IB …. 7.5.2 ss 17B–17E …. 7.5.2 s 17C …. 7.5.7 s 35a(1)(j) …. 6.2.12C Wrongs Act Amendment Act 1987 …. 7.5.2

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TASMANIA Acts Interpretation Act 1931 s 16(1)(a) …. 6.1.5 Administration and Probate Act 1935 s 27 …. 9.1.4 Building Act 2000 s 255 …. 5.2.7 s 256 …. 5.2.7 Civil Aviation (Carriers’ Liability) Act 1963 …. 15.1.6 Civil Liability Act 2002 …. 2.6.11C, 6.2.55, 7.9.5 Pt 3 …. 7.11.6S Pt 4 …. 7.9.14 Pt 6 Div 5 …. 6.3.22

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Pt 8 …. 7.10.14S Pt 8A …. 7.7.15 Pt 8B …. 7.7.15 Pt 9 …. 7.6.12S Pt 9A …. 18.2.19 Pt 9A Div 7 …. 6.2.4S Pt 10 …. 7.7.15 s 3 …. 17.6.21 s 3A(3) …. 18.1.7 s 3B …. 3.1.1 s 3B(1)(a) …. 11.4.5 s 5 …. 2.6.12, 6.2.55 s 5(2) …. 6.2.55 s 8 …. 8.2.6 s 9 …. 5.1.3 s 11 …. 3.1.1 s 11(2)(d) …. 3.1.13, 3.2.39 s 12 …. 3.1.1 s 12(b) …. 3.1.59 s 13 …. 4.1.1 s 15 …. 6.3.2 s 15(5) …. 6.3.2 s 14 …. 4.1.1 s 17 …. 7.5.11 s 21 …. 3.2.26 s 22 …. 3.2.27 s 23 …. 6.2.11 s 25 …. 8.2.23 s 26 …. 8.2.22, 9.2.18 s 27 …. 8.2.56 s 28 …. 8.2.56 s 28A …. 8.2.39 s 28B …. 8.2.33 s 31 …. 7.10.2 s 32 …. 7.10.16

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 40 …. 10.2.13 s 43A(5) …. 18.2.19 s 43C(2) …. 18.1.7 Compare Civil Liability Act 2002 s 16 …. 6.3.2 Conveyancing and Law of Property Act 1884 s 84J …. 12.4.8 Damage by Aircraft Act 1963 ss 3–4 …. 12.4.3 Defamation Act 2005 s 7(2) …. 8.1.3 Dog Control Act 2000 s 62(3)(g)(ii) …. 15.2.26 Employers’ Liability Act 1943 s 5 …. 6.1.5 Fatal Accidents Act 1934 …. 9.2.2S, 9.2.18 s 10(1)(b) …. 9.2.20 Housing Indemnity Act 1992 Pt 2 …. 16.3.17 Human Tissue Act 1959 s 36A …. 13.3.9 Land Titles Act 1980 s 110(4)–(12) …. 12.4.8 Law of Animals Act 1962 Pt II …. 15.2.1 Pt IV …. 7.1.3 Legislation Repeal Act 2003 …. 6.1.5 Limitation Act 1974 …. 5.2.1, 11.4.24 Liquor and Accommodation Act 1990 …. 2.6.11C Motor Accidents (Liabilities and Compensation) Act 1973 …. 1.1.34, 1.4.11, 1.4.17 Pt III …. 1.1.27 s 2(4) …. 1.1.27 s 23(1) …. 1.4.18 s 23(2B) …. 1.4.12, 1.4.18 s 27 …. 1.4.17

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

s 27A …. 1.4.17 Police Service Act 2003 s 84 …. 17.3.26 Professional Standards Act 2005 …. 3.2.30 Stolen Generations of Aboriginal Children Act 2006 …. 1.4.24 Victims of Crime Assistance Act 1976 …. 1.4.23 Work Health and Safety Act 2012 …. 10.1.17 Workers’ Rehabilitation and Compensation Act 1988 …. 1.4.1 s 97 …. 18.1.10 Wrongs Act 1954 …. 18.2.4S s 3(1)(a) …. 18.2.1, 18.2.5 s 3(1)(b) …. 18.2.5, 18.2.11 s 3(1)(c) …. 18.2.2, 18.2.9, 18.2.14C s 3(1)(d) …. 18.2.6, 18.2.7 s 3(3)(b) …. 18.2.8 s 4 …. 6.2.4S s 5(1)(c) …. 18.2.2

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VICTORIA Administration and Probate Act 1928 s 25 …. 9.1.1C Administration and Probate Act 1958 s 2A …. 9.1.1C s 29 …. 9.1.1C, 9.1.2, 9.1.4 s 29(1) …. 9.1.1C s 29(2)(c) …. 9.1.2 s 29(2)(c)(ii) …. 9.1.2 s 29(4) …. 9.1.10 Administration and Probate (Dust Diseases) Act 2000 …. 9.1.1C Asbestos Diseases Compensation Act 2008 s 3(2) …. 5.1.8 s 4 …. 8.2.7 Building Act 1993 Pt 9 Div 3 …. 16.3.17 s 134 …. 5.2.7

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Charter of Human Rights and Responsibilities Act 2006 s 21(4) …. 13.5.8C Civil Aviation (Carriers’ Liability) Act 1961 …. 15.1.6 Civil Procedure Act 2010 s 29 …. 2.6.27 Country Fire Authority Act 1958 Pt V …. 1.4.24 Crimes Act 1958 …. 11.6.3C s 76(1)(a) …. 12.2.18 ss 457–463B …. 13.5.5 s 458 …. 12.2.9C s 459 …. 12.2.9C s 459A …. 12.2.9C s 464A(1) …. 13.5.8C s 464A(4) …. 13.5.8C Crimes (Classification of Offences) Act 1981 …. 12.2.9C Crimes (Powers of Arrest) Act 1972 …. 12.2.9C Criminal Injuries Compensation Act 1972 …. 1.4.25 Crown Proceedings Act 1958 s 23(1)(b) …. 7.6.1, 17.4.5 Defamation Act 2005 s 7(2) …. 8.1.3 Domestic Animals Act 1994 s 29 …. 12.2.2, 15.2.26 s 29(9)(b) …. 15.2.28 s 29(11) …. 15.2.26 Domestic Building Contracts Act 1995 ss 8–10 …. 16.3.17 Electricity Industry Act 2000 …. 12.2.19 Emergency Management Act 1986 …. 10.2.12 Factories and Shops Act 1928 …. 10.2.28 Family Violence Protection Act 2008 s 123 …. 13.5.8C s 124 …. 13.5.8C Guardianship and Administration Act 1986

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 42A …. 13.3.2 Health Services (Conciliation and Review) Act 1987 …. 7.9.15 s 9(1)(d) …. 7.9.15 Human Tissue Act 1982 …. 13.2.53 s 24 …. 13.3.9 Judicial Proceedings Reports Act 1958 s 4(1A) …. 10.2.15, 11.6.3C Limitation of Actions Act 1958 …. 5.2.1 ss 27O–27R …. 11.4.24 Limitation of Actions Amendment (Child Abuse) Act 2015 …. 11.4.24 Local Government Act 1958 s 799 …. 14.3.9C s 799(1) …. 14.3.9C s 799(2) …. 14.3.9C Motor Accidents Act 1973 …. 1.4.11 Medical Treatment Act 1988 …. 13.2.28 Mental Health Act 1986 s 10 …. 7.7.2C Mental Health Act 2014 s 351 …. 7.7.2C Occupational Health and Safety Act 2004 s 21(1) …. 10.1.11, 21.2.43 s 34 …. 10.1.14, 10.1.18 Occupational Health and Safety Regulations 2007 …. 10.1.18, 10.2.37 Police Regulation Act 1958 s 123 …. 17.3.26 Professional Standards Act 2003 …. 3.2.30 Public Health and Wellbeing Act 2008 ss 150–155 …. 3.1.52 Road Management Act 2004 Pt 6 …. 7.6.12S Road Safety Act 1986 ss 90A–90H …. 12.5.7 Sentencing Act 1991 …. 1.4.23 s 85B …. 1.4.23

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Transport Accident Act 1986 …. 1.1.34, 1.4.11, 1.4.15 Pt 6 Div 2 …. 1.1.27 s 3(1) …. 7.10.16, 1.1.27, 1.4.12, 1.4.15 s 3(1A) …. 1.1.27, 1.4.12, 1.4.15 s 35(1) …. 1.4.15 s 93 …. 1.3.8E, 1.4.14 s 93(1) …. 8.1.9 s 93(7)(b) …. 8.2.56 s 93(9) …. 9.2.18 s 93(13) …. 8.2.39 s 93(17) …. 1.4.14 s 93A …. 8.2.36 s 94(2)(c) …. 1.4.23 Victims of Crime Assistance Act 1996 …. 1.4.23 Victoria Police Act 2013 s 74(2) …. 8.1.17 Water Act 1989 s 16 …. 14.3.15 s 157 …. 14.3.15, 15.1.7 Workplace Injury Rehabilitation and Compensation Act 2013 …. 1.4.1 Pt 7 Div 3 …. 9.1.6 s 340(b) …. 8.2.56 s 340(c) …. 8.1.9 s 345(1) …. 8.2.39 s 366(2) …. 9.2.18 s 366(3) …. 8.2.39 Wrongs Act 1958 …. 6.2.3, 7.5.6, 7.7.2C, 8.3.2 Pt IIA …. 7.5.2 Pt IIC …. 7.9.14 Pt III …. 9.1.1C, 9.2.2S Pt IV …. 18.2.4S Pt IVAA …. 18.2.19 Pt V …. 6.2.4S Pt VBA …. 1.1.22, 1.1.32, 8.2.56 Pt VIA …. 7.7.15

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Pt VIB …. 7.7.15 Pt IX …. 7.7.15 Pt XI …. 7.10.14S Pt XII …. 7.6.12S Pt XIII …. 2.6.31 ss 14–20 …. 9.2.9 s 16 …. 9.2.9 s 17 …. 9.2.9 s 17(2) …. 9.2.5 s 19(1A) …. 9.1.7 s 19(2) …. 9.2.21 s 19(2)–(4) …. 9.2.21 s 23 …. 7.10.2 s 23B(2) …. 18.2.9 s 23B(3) …. 18.2.9 s 23B(4) …. 18.2.6 s 23B(5) …. 18.2.6 s 24(2B) …. 18.2.7 s 24A …. 6.1.5 s 24AB …. 18.2.11 s 24AG …. 18.2.19 s 24AI(3) …. 18.2.21 s 24AM …. 18.2.19 s 25 …. 6.2.4S s 25(b) …. 6.2.5 s 26 …. 6.2.4S s 26(4) …. 6.2.6 s 28A …. 8.2.21 s 28C(2) …. 11.4.5 s 28G …. 8.2.56 s 28HA …. 8.2.56 s 28I …. 8.2.39 s 28IA …. 8.2.33 s 28F …. 8.2.22, 9.2.18 s 28M …. 8.2.6

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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s 28N …. 8.2.6 ss 30–31 …. 12.4.3 s 33 …. 7.1.3 s 43 …. 5.1.3 s 44 …. 17.6.21 s 45 …. 3.1.1 s 48 …. 3.1.1 s 48(3) …. 3.1.11 s 49 …. 3.1.1 s 49(c) …. 3.1.59 s 51 …. 4.1.1 s 52 …. 4.1.1 s 53 …. 6.3.2 s 54 …. 6.3.2 s 55 …. 3.1.56, 6.3.2 ss 57–60 …. 3.2.27 s 59(2) …. 3.2.27 s 61(1) …. 17.6.21 s 61(2) …. 17.6.21 s 62 …. 6.2.4S, 6.2.11, 6.2.12C, 6.2.14, 6.2.28, 6.2.39, 6.2.46 s 62(1) …. 6.2.11 s 63 …. 6.2.4S, 6.2.41 s 64(1) …. 9.2.4 s 73 …. 7.10.16 s 83 …. 3.1.68 s 84 …. 10.2.13 Wrongs Amendment (Asbestos Related Claims) Act 2015 …. 9.1.6 Survival of Actions Act 1942 …. 9.1.1C s 25(2) …. 9.1.1C

WESTERN AUSTRALIA Acts Amendment (Consent to Medical Treatment) Act 2008 …. 13.2.24C Agricultural Practices (Disputes) Act 1995 …. 14.1.14 s 4(1)(d) …. 14.1.14 Civil Aviation (Carriers’ Liability) Act 1961 …. 15.1.6

Luntz, Harold, et al. Torts : Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/anu/detail.action?docID=6221428. Created from anu on 2021-02-16 00:10:00.

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Civil Liability Act 2002 …. 6.2.39, 6.2.55, 7.5.9 Pt 1A Div 4 …. 6.3.22 Pt 1A Div 5 …. 6.2.4S Pt 1B …. 7.10.14S Pt 1C …. 7.6.12S Pt 1D …. 7.7.15 Pt 1E …. 7.9.14 Pt 1F …. 18.2.19 s 3 …. 5.1.3 s 3A …. 3.1.1 s 3A(1) …. 11.4.5 s 4A …. 18.1.7, 18.2.19 s 5AJA …. 18.2.19 s 5AL(2) …. 18.1.7 s 5B …. 3.1.1, 3.1.2 s 5C …. 3.1.1, 4.1.1 s 5D …. 4.1.1 s 5F …. 6.3.2 s 5F(5) …. 6.3.2 s 5I …. 6.3.23 s 5I(4) …. 6.3.23 s 5K …. 6.2.11, 6.2.14 s 5K(1) …. 6.2.39 s 5L …. 6.2.55 s 5N …. 6.3.2, 6.3.8 s 5O …. 7.5.11 s 5P …. 6.3.2 ss 5PA–5PB …. 3.2.27 s 5PB(4) …. 3.2.27 s 5PB(6) …. 3.2.27 s 5X …. 10.2.13 s 5Y …. 10.2.13 s 9 …. 8.2.56 s 10 …. 8.2.56 s 10A …. 8.2.56

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s 11 …. 8.2.22, 9.2.18 s 12 …. 8.2.33 s 14 …. 8.2.6 s 15 …. 8.2.6 Criminal Code …. 13.2.24C s 259 …. 13.2.24C s 259(1) …. 13.2.24C s 259(2) …. 13.2.24C s 262 …. 13.2.24C s 371A …. 2.6.8 Criminal Injuries Compensation Act 2003 …. 1.4.23 Damage by Aircraft Act 1964 ss 4–5 …. 12.4.3 Defamation Act 2005 s 7(2) …. 8.1.3 Dog Act 1976 …. 15.2.20 s 46 …. 15.2.26 s 46(5) …. 15.2.26 Environment Protection Act 1986 …. 14.5.8 Fatal Accidents Act 1959 …. 9.2.2S, 9.2.6C s 5(2)(d) …. 9.1.7 Guardianship and Administration Act 1990 …. 13.2.28 Highways (Liability for Straying Animals) Act 1983 …. 7.1.3 s 3(5) …. 7.1.3 Human Tissue and Transplant Act 1982 s 21 …. 13.3.9 Law Reform (Common Employment) Act 1951 s 3 …. 6.1.5 Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 s 7 …. 18.2.4S s 7(1)(b) …. 18.2.11 Law Reform (Miscellaneous Provisions) Act 1941 s 4 …. 9.1.2, 9.1.4 s 4(2)(d) …. 8.2.61 s 5 …. 8.2.39

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Limitation Act 2005 …. 5.2.1, 11.4.24 Occupational Safety and Health Act 1984 …. 10.1.14 Motor Vehicle (Catastrophic Injuries) Act 2016 …. 1.1.34 s 5(3) …. 1.1.34 s 8(3) …. 1.1.34 Motor Vehicle (Third Party Insurance) Act 1943 …. 1.1.27 s 3A …. 1.1.27 s 3C …. 8.2.56 s 26 …. 6.3.26 Sch …. 1.1.27 Occupiers’ Liability Act 1985 …. 7.5.2, 7.5.9 s 2 …. 7.5.6 s 8 …. 7.5.14 Police Act 1892 s 137 …. 17.3.26 s 137(6) …. 8.1.17 s 138(2) …. 8.1.17 Professional Standards Act 1997 …. 3.2.30 Property Law Act 1969 s 122 …. 12.5.6 s 123 …. 12.5.6 Strata Titles Act 1985 …. 10.2.29 Volunteers and Food and Other Donors (Protection from Liability) Act 2002 Pt 2 …. 7.7.15 Pt 3 …. 7.7.15 Workers’ Compensation and Injury Management Act 1981 …. 1.4.1 s 93K …. 8.2.56

INTERNATIONAL Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (Rome Convention of 1952) …. 12.4.3

NEW ZEALAND Accident Compensation Act 1972 …. 1.4.27 Accident Compensation Act 2001 …. 1.4.27, 1.4.29

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UNITED KINGDOM Animals Act 1971 …. 15.2.9 Chancery Amendment Act 1858 (Lord Cairns’ Act) …. 12.2.8 s 2 …. 14.5.4 Civil Liability (Contribution) Act 1978 …. 18.2.3 Coal Mines Regulation Act 1887 …. 11.5.12C Common Law Procedure Act 1852 …. 11.1.15 s 41 …. 11.2.3 Compensation Act 2006 s 1 …. 3.1.46 s 3 …. 4.2.20 Contagious Diseases (Animals) Act 1869 …. 10.2.30 Damages (Asbestos-related Conditions) (Scotland) Act 2009 …. 5.1.10 s 1(1) …. 5.1.10 s 1(2) …. 5.1.10 Directors’ Liability Act 1890 …. 2.2.4 Employer’s Liability (Defective Equipment) Act 1969 …. 7.8.8 Enterprise and Regulatory Reform Act 2013 s 69 …. 10.1.5 Fatal Accidents Act 1846 (Lord Campbell’s Act) (UK) …. 1.5.10, 9.1.1C, 9.1.3, 9.1.5, 9.1.7, 9.1.10, 9.2.3, 9.2.4, 9.2.6C, 9.2.8, 9.2.9, 9.2.11, 9.2.12, 9.2.14, 9.2.15, 9.2.17C, 9.2.18, 9.2.19 Health and Safety at Work etc. Act 1974 s 47 …. 10.1.5 Human Rights Act 1998 …. 11.6.3C Judicature Act 1873 …. 11.1.15, 11.2.3 Judicature Act 1875 …. 11.1.15 Latent Damage Act 1986 …. 5.2.7 Law Reform (Contributory Negligence) Act 1945 …. 6.2.4S Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 …. 6.2.4S Law Reform (Married Women and Tortfeasors) Act 1935 …. 18.2.1 Law Reform (Miscellaneous Provisions) Act 1934 …. 8.2.57, 9.1.1C, 9.1.4 s 25(2)(c)(ii) …. 9.1.1C Limitation Act 1939 …. 11.3.7 Married Women’s Property Act 1882 s 11 …. 17.4.2C

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Mental Capacity Act 2005 …. 13.2.34 Occupiers’ Liability Act 1957 …. 7.5.2 Personal Protective Equipment at Work Regulations 1992 …. 10.2.36 Prescription Act 1832 …. 14.3.16C Prison Act 1952 …. 11.5.7 Prison Rules 1964 …. 11.5.7 Protection from Harassment Act 1997 …. 11.6.3C, 14.1.3C Provision and Use of Work Equipment Regulations 1998 reg 2(1) …. 10.2.35 reg 3(2) …. 10.2.35 reg 5(1) …. 10.2.35 Road Traffic Act 1988 s 149(3) …. 6.3.26 Street Offences Act 1959 …. 11.4.9 Unfair Contract Terms Act 1977 …. 16.2.16 Workmen’s Compensation Act 1897 …. 1.4.1, 6.3.16 s 1(1) …. 1.4.1

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Contents

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Detailed Contents Preface Table of Cases Table of Statutes Chapter 1 1 2 3 4 5 6 7 8

Introduction Injury compensation and the law of torts Property damage and insurance Critique of the fault system Other compensation schemes Nature and definition of a tort Economic analysis Gender, tort law and feminist legal theory Other tort theories

Chapter 2 1 2 3 4 5 6 7

Negligence: Duty of Care Elements of the tort of negligence The search for principle The meaning of reasonable foreseeability Proximity of relationship Scope (or content) of the duty Policy considerations Function of judge and jury, appellate court and trial judge

Chapter 3 1

Negligence: Breach of Duty The standard of care

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2 3 4

The reasonable person A question of fact Proof of breach

Chapter 4 1 2 3

Factual Causation and Scope of Liability The general approach to causation Factual causation Scope of liability

Chapter 5 1 2

Damage The gist of negligence Limitation of actions

Chapter 6 1 2 3

Defences to Torts Involving Negligence Introduction Contributory negligence Voluntary assumption of risk

Chapter 7 1 2 3 4 5 6 7 8 9 10 11

Particular Negligence Situations Introduction Plaintiffs with a special sensitivity Product liability Mass torts Occupiers’ liability Statutory authorities Omissions Employer and employee Medical liability Mental injury Illegality

Chapter 8 1 2 3

Damages Types of damages Compensatory damages for personal injury Property damage

Chapter 9

Wrongful Death

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1 2

Survival of actions The dependants’ action

Chapter 10 1 2

Breach of Statutory Duty The nature of the action Elements of the action

Chapter 11 1 2 3 4 5 6

Intentional Interference with the Person Introduction Direct interference Trespass, intention and negligence Battery and assault False imprisonment Intentional harm: Wilkinson v Downton

Chapter 12 1 2 3 4 5

Trespass to Land Introduction The defendant’s conduct The plaintiff’s interest in the land Trespass above and beneath the surface Remedies

Chapter 13 1 2 3 4 5

Defences to Intentional Torts Introduction Consent Necessity Self-defence and defence of others Legal authority

Chapter 14 1 2 3 4 5 6

Nuisance Nature of a nuisance and who may sue Who may be sued Defences Remoteness of damage Remedies Public nuisance

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Chapter 15 1 2 3

Strict Liability Strict Liability v Negligence Liability for animals Statutory product liability

Chapter 16 1 2 3

The Negligent Infliction of Economic Loss Introduction Misrepresentation and professional undertakings Negligent acts causing economic loss

Chapter 17 1 2 3 4 5 6

Vicarious Liability Introduction The relationship of employer and employee The course (or scope) of the employment Theories of employers’ liability for harms inflicted by employees Principal and agent Non-delegable duties

Chapter 18 1 2

Concurrent Liability The common law Statutory modification

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Index

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Detailed Contents

Preface Table of Cases Table of Statutes

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Chapter 1

Introduction 1 Injury compensation and the law of torts The size of the problem: some statistics The cost and incidence of injury Where injuries occur and their severity Personal injury litigation before and after the Ipp Report The role of the law of torts Collateral benefits Commonwealth income support Enter the law of torts Compulsory insurance A blame society? 2 Property damage and insurance Loss spreading and loss shifting 3 Critique of the fault system Thurston v Todd Notes Disability Care and Support: Inquiry Report Disability Care and Support: Inquiry Report Notes Criminal law a more effective deterrent

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Search for fault obscures real, remediable cause Monetary compensation helps only individuals Other compensation schemes Workers’ compensation No-fault motor accident insurance Victoria Tasmania Northern Territory New South Wales Criminal injuries compensation Other particular compensation schemes Comprehensive accident compensation schemes New Zealand Australian Woodhouse Report Sickness National Disability Insurance Scheme and the National Injury Insurance Scheme Lawyers need to be familiar with multiple regimes Nature and definition of a tort The protection of interests at common law Unprotected interests Cabassi v Vila Question Notes Definition of a tort Aims of the law of torts Economic analysis Injuries and injury-prevention costs Externalities and general deterrence Resources allocation and the ‘Coase theorem’ Criticism of the economic approach Gender, tort law and feminist legal theory A Lawyer’s Primer on Feminist Theory and Tort Notes Women and tort law reforms Other tort theories

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Disability jurisprudence and tort law Corrective justice, rights and tort law Some other legal theories

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Chapter 2

Negligence: Duty of Care 1 Elements of the tort of negligence The duty concept 2 The search for principle Donoghue v Stevenson Notes Subsequent developments Current Australian test Sullivan v Moody Questions Notes 3 The meaning of reasonable foreseeability Chapman v Hearse Questions Notes Level of abstraction Reasonable person in the position of the defendant Degree of probability Comparison with breach and remoteness The unforeseeable plaintiff Sydney Water Corporation v Turano Question Notes Cases establishing the principle Asbestos exposure of non-employees 4 Proximity of relationship Intermediate examination Voli v Inglewood Shire Council Question Notes Other lack of proximity

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7 Chapter 3

Agar v Hyde Notes Conflict with statutory duty Hunter and New England Local Health District v McKenna Question Notes Scope (or content) of the duty Scope of landlord’s duty of care to non-tenant Jones v Bartlett Question Notes Uncertainty as to where ‘scope of the duty’ fits Statutory (and other) limits on the scope of the duty of care Policy considerations Joint illegality Self-induced intoxication CAL No 14 Pty Ltd v Motor Accidents Insurance Board Questions Note The advocate’s immunity D’Orta-Ekenaike v Victoria Legal Aid Questions Notes Question Child protection agencies The police Cran v State of New South Wales Questions Notes Armed forces Governmental policy Graham Barclay Oysters Pty Ltd v Ryan Notes Function of judge and jury, appellate court and trial judge

Negligence: Breach of Duty

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The standard of care Relationship between s 5B and the common law Common law duty to take care Foreseeability Reasonable response to foreseeable risk The ‘calculus of negligence’ Non-economic factors Law and fact ‘Duty’ and obligation Balancing the factors Wyong Shire Council v Shirt Questions Note Foresight, not hindsight Probability that harm would occur if care not taken (s 5B(2)(a)) Roads and Traffic Authority of NSW v Dederer Questions Notes Likely seriousness (gravity) of harm (s 5B(2)(b)) Paris v Stepney Borough Council Questions Notes Burden (cost and difficulty) of taking precautions to avoid risk of harm (s 5B(2)(c)) Graham Barclay Oysters Pty Ltd v Ryan Question Notes Social utility (justifiability) of activity that creates risk of harm (s 5B(2)(d)) Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba Question Notes Inherent risk Relevant time for assessing risk Questions

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Defective product design O’Dwyer v Leo Buring Pty Ltd Notes Public authorities’ choices Conformity with general practice Compliance with statutory regulation The reasonable person Young age McHale v Watson Question Note Mental disability Carrier v Bonham Question Note Old age and physical disability Professionals Rogers v Whitaker Questions Notes Learner drivers Imbree v McNeilly Questions Note Inexperienced doctors Question Participation in games A question of fact Fox v Percy Questions Notes Precedential value of decisions on the standard of care Proof of breach Holloway v McFeeters Questions

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Notes Res ipsa loquitur (the thing — or matter, or event — speaks for itself) Schellenberg v Tunnel Holdings Pty Ltd Notes More than one possible negligent party

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Chapter 4

Factual Causation and Scope of Liability 1 The general approach to causation Civil Liability Act 2002 (NSW) 2 Factual causation Strong v Woolworths Ltd t/as Big W Questions Notes The ‘but for’ test Application of ‘but for’ test Omissions Response to warnings Subjective test of what plaintiff would have done When departure from the ‘but for’ test may be permitted Scientific uncertainty Amaca Pty Ltd v Ellis Questions Notes Inference of causation Increased risk Unsuitability of trial process More than one negligent defendant Material contribution Multiple sufficient causes 3 Scope of liability Relevance of cause of action and of policy Application of s 5D(1)(b) and (4) Wallace v Kam Questions Notes

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Categories of intervening event Voluntary human action Coincidence Subsequent negligent conduct Vicissitudes of life Subsequent motor accident Foreseeability of damage Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) Question Notes The meaning of ‘reasonable foreseeability’ Questions Notes Manner in which harm came about The extent of damage Foreseeability of initial injury or of consequence? Family circumstances Alcoholism Allowance for contingencies Wrong must have been committed Property damage Mitigation of damage The kind of damage Kavanagh v Akhtar Questions Notes Chapter 5

Damage 1 The gist of negligence Definition in civil liability statutes Minimum damage that is required Alcan Gove Pty Ltd v Zabic Question Notes Mental harm

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Chapter 6

Property damage Loss of a chance Tabet v Gett Questions Notes Birth and death Limitation of actions Brisbane South Regional Health Authority v Taylor Notes Historical sexual abuse Property damage Economic loss Abuse of process

Defences to Torts Involving Negligence 1 Introduction 2 Contributory negligence Wrongs Act 1958 (Vic) Pt V Notes What is contributory negligence? Joslyn v Berryman Question Notes Standard of care: calculus of negligence The objective standard and personal factors Allen v Chadwick Question Notes Sudden emergency Caterson v Commissioner for Railways Notes Anticipation of others’ negligence Sibley v Kais Notes Workplace environment McLean v Tedman

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Chapter 7

Notes Standard of care: children and old age Kelly v Bega Valley County Council Questions Notes Causation Apportionment of responsibility Pennington v Norris Questions Notes Presumptions of contributory negligence Voluntary assumption of risk Knowledge or awareness of risk Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) Question Notes Kent v Scattini Questions Acceptance of risk Carey v Lake Macquarie City Council Particular fact situations Employer and employee Rescue Participants and spectators at sporting events Passengers of drunken drivers Exemption by notice

Particular Negligence Situations 1 Introduction 2 Plaintiffs with a special sensitivity Levi v Colgate-Palmolive Pty Ltd Questions Notes The unborn plaintiff Harriton v Stephens Question

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Notes Plaintiff injured in the womb Plaintiff injured in the womb by mother Actions by parents in respect of the birth of a child Cattanach v Melchior Questions Notes Product liability Strict liability v negligence Scope of liability for negligence Mass torts Courtney v Medtel Pty Ltd (No 5) Question Notes Occupiers’ liability Australian Safeway Stores Pty Ltd v Zaluzna Questions Note Who is an occupier? Thompson v Woolworths (Qld) Pty Ltd Notes Standard of care Obvious dangers Entrants pursuant to a contract Other entrants as of right Occupier’s duty to control others on the premises Modbury Triangle Shopping Centre Pty Ltd v Anzil Question Notes Statutory authorities Graham Barclay Oysters Pty Ltd v Ryan Notes Policy/operational distinction General reliance Summary of common law principles

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8

Statutory reforms Civil Liability Act 2002 (NSW) Questions Notes Highway authorities Omissions Stuart v Kirkland-Veenstra Question Notes Assumption of responsibility Creation of risk Occupation of land Hargrave v Goldman Goldman v Hargrave Question Notes Subjective standard of care Protection for ‘good Samaritans’, volunteers and others Duty to protect someone or something under one’s control Parent and child Robertson v Swincer Question Notes Duty to plaintiff to control child or other person Smith v Leurs Questions Notes School authority’s duty to plaintiff to control child Employer and employee Hamilton v Nuroof (WA) Pty Ltd Question Notes Personal duty Conformity with general practice Current community standards

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Proof of acceptability of practicable alternative by workers Experienced employees Inexperienced employees Psychiatric injury The role of the employee’s privacy Property damage and pure economic loss 9 Medical liability Standard of care in relation to warnings Therapeutic privilege Failure to attend in an emergency Loss of chance Wrongful birth and life Apologies Alternative dispute resolution Alternatives to the tort system 10 Mental injury Tame v New South Wales; Annetts v Australian Stations Pty Ltd Question Notes Recognisable psychiatric illness Sudden shock Reasonable foreseeability Employer and employee Tortfeasor is primary victim Reform Civil Liability Act 2002 (NSW) Notes 11 Illegality Civil Liability Act 2002 (NSW) Notes Chapter 8

Damages 1 Types of damages ‘Damage’ and ‘damages’ Nominal, contemptuous, vindicatory and restitutionary damages Aggravated damages

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Exemplary damages Availability at common law in Australia Lamb v Cotogno Questions Notes Compensatory damages for personal injury Basic principles Heads of damage Once-and-for-all assessment Departures from the once-and-for-all rule Use of the money Method of assessment Sharman v Evans Question Notes Itemisation of damages Institutional versus independent living Difficulty of assessment Loss of earning capacity Relevant earnings Net earnings Earnings cap Superannuation Where earning-life shortened Residual capacity Questions Needs created Kars v Kars Questions Notes Policy reasons for damages for gratuitous services Valuation of gratuitous services Interest on damages for gratuitous services Services rendered by injured person Remedies available to recipients of services

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Chapter 9

Future loss Discount rate Contingencies Collateral source rule Principle Sick pay Accident insurance and superannuation benefits Medicare, nursing home benefits and residential care subsidies Social security Other compensation schemes Non-pecuniary (non-economic) harm Tariff or scale Purposes of award Skelton v Collins Questions Notes Property damage Powercor Australia Ltd v Thomas Question Notes GST Cost of repairs or diminution in value Date at which damage to be ascertained Betterment Cost of repairs not paid for by the plaintiff Consequential loss Cost of hiring replacement motor vehicle

Wrongful Death 1 Survival of actions Lotter v Salmon Street Ltd Questions Notes Reasons for the legislation Non-pecuniary damage

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Chapter 10

Actions based on negligence Tortfeasor and victim both dead The dependants’ action Civil Proceedings Act 2011 (Qld) Question Notes Nature of the action De Sales v Ingrilli Notes Wrongful act Deceased must have been able to sue Foreseeability of death Limitations on defendant’s liability Contributory negligence Damages Reasonable expectation of benefit Past and future loss Non-pecuniary loss Parental care and guidance Needs created and the replacement of lost services Limits on recovery Taylor v The Owners — Strata Plan No 11564 Notes Collateral benefits Re-partnering Survivor’s earnings

Breach of Statutory Duty 1 The nature of the action ‘A genuine exercise in interpretation’ Workplace health and safety An attempt at harmonisation The merit of the action 2 Elements of the action Creation of a civil action General formulations

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Byrne v Australian Airlines Ltd Note Traffic control Subordinate legislation Legislation on topics other than workplace health and safety Anderson v Mackellar County Council Note Public authorities Penal provisions Questions Duty imposed on the defendant Darling Island Stevedoring and Lighterage Co Ltd v Long Notes Plaintiff within the protected class Scope of the risk Question Breach of duty Absolute liability ‘Reasonably practicable’ Question A qualification on liability: plaintiff’s conduct Millington v Wilkie Questions Causation Failure to supply protective equipment Licences Onus of proof of causation Defences Contributory negligence Voluntary assumption of risk Question Chapter 11

Intentional Interference with the Person 1 Introduction Themes of Chapters 11–13 Law and social change

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Civil liberties History: trespass and case Directness Actionable per se (without proof of damage) Onus of proof Direct interference Hutchins v Maughan Notes Trespass, intention and negligence Williams v Milotin McHale v Watson Intention, motive, mistake and involuntariness Question Battery and assault Rixon v Star City Pty Ltd Notes Question Rozsa v Samuels Zanker v Vartzokas Notes Domestic violence Abuse of children Sexual assault False imprisonment Total restraint Symes v Mahon Notes Residual liberty Reasonable means of escape McFadzean v Construction, Forestry, Mining and Energy Union The Balmain New Ferry Co Ltd v Robertson Herd v Weardale Steel Coke and Coal Co Notes and questions Must the person detained know of the restraint? State of South Australia v Lampard-Trevorrow

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6

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Chapter 12

Directness Coles Myer Ltd v Webster Notes False imprisonment and malicious prosecution Initiation of proceedings Termination of proceedings in favour of plaintiff Malice and absence of reasonable and probable cause Intentional harm: Wilkinson v Downton Nationwide News Pty Ltd v Naidu Giller v Procopets Rhodes v OPO Notes Breach of privacy Question

Trespass to Land 1 Introduction New South Wales v Ibbett Notes 2 The defendant’s conduct Continuing trespass Konskier v B Goodman Ltd Note Implied licence Halliday v Nevill Questions Note Lincoln Hunt Australia Pty Ltd v Willesee Notes Injunctions against trespassers using film Injunctions against use of film by non-trespassers Exceeding licence 3 The plaintiff’s interest in the land Newington v Windeyer Note Questions

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4

5

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Chapter 13

Trespass above and beneath the surface Bocardo SA v Star Energy UK Onshore Ltd Aircraft Building construction cases Airspace Beneath the surface Legislation — power of court to create easements Remedies TCN Channel Nine Pty Ltd v Anning Notes Damages Injunctions Self-help Encroachment of buildings Question

Defences to Intentional Torts 1 Introduction 2 Consent Onus of proof Sporting contests McNamara v Duncan Notes Medical procedures Fraud Duress Consent forms Refusal of consent — the principle of autonomy Brightwater Care Group (Inc) v Rossiter Notes Incapacity Minors Minors — non-therapeutic medical procedures Psychiatric illness and intellectual disability Human tissue transplants 3 Necessity

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4 5

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Chapter 14

Medical procedures Necessity and refusal of consent Minors — blood transfusions Other applications of necessity State of New South Wales v McMaster Notes Self-defence and defence of others Contributory negligence Legal authority Biddle v State of Victoria

Nuisance 1 Nature of a nuisance and who may sue Hunter v Canary Wharf Ltd Question Notes Title to sue ‘Substantial and unreasonable interference’ ‘Sensible material injury’ Interference with amenity Munro v Southern Dairies Ltd Notes ‘Give and take’ or ‘reasonable use’ Locality Time Duration Defendant’s unreasonable conduct or improper motive ‘Sensitive use’ Marsh v Baxter Question Notes Removal of lateral support Protected and unprotected interests Victoria Park Racing and Recreation Grounds Co Ltd v Taylor Notes 2 Who may be sued

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3

4

5

The requirement of ‘fault’ Creators of a nuisance Fennell v Robson Excavations Pty Ltd Notes Adopting or continuing a nuisance Liability for acts of strangers Sedleigh-Denfield v O’Callaghan Notes Occupier’s liability for acts of nature Hargrave v Goldman Question Notes Occupiers’ liability for acts of persons on the land with permission Other causes of damage Defences Consent Kiddle v City Business Properties Ltd Note Statutory authority Lester-Travers v City of Frankston Question Notes Reasonable use Corbett v Pallas Notes ‘Coming to the nuisance’ Miller v Jackson Questions Notes Remoteness of damage Cambridge Water Co v Eastern Counties Leather Plc Questions Note Remedies Self-help (abatement)

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Chapter 15

Damages Costs of abatement Property damage and interference with amenity In lieu of an injunction Coming to the nuisance Injunctions Statutory remedies Public nuisance Cartwright v McLaine & Long Pty Ltd Notes

Strict Liability 1 Strict Liability v Negligence 2 Liability for animals Heads of liability for animals Classification of animals Behrens v Bertram Mills Circus Ltd Questions Notes Propensity to injure Collins v Carey Notes Loss of control Higgins v William Inglis & Son Pty Ltd Note Possible defences Contributory negligence Voluntary assumption of risk Plaintiff’s own act Act of a stranger Act of God Reform Statutory liability for dogs Defences 3 Statutory product liability

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The Australian Consumer Law Notes

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Chapter 16

The Negligent Infliction of Economic Loss 1 Introduction Reasons for denial of duty of care Overview of historical development of the law Swick Nominees Pty Ltd v Leroi International Inc (No 2) Approaches to determining liability for pure economic loss: duty Statutory remedies Civil liability statutes 2 Misrepresentation and professional undertakings Deceit Negligent misrepresentation Hedley Byrne & Co Ltd v Heller & Partners Ltd Questions Notes Must the defendant have special skill? Principle as adopted in Australia Distinction between ‘utterances’ and ‘acts’ and between physical damage and economic loss Need for a request? Is a disclaimer always effective? Concurrent duties in contract and tort Overlap with defamation Solicitors’ duties Hill (t/as R F Hill & Associates) v Van Erp Questions Note Auditors’ liability to parties other than their clients Knowledge of a particular transaction Causation Remoteness of damage Measure of damages Contributory negligence 3 Negligent acts causing economic loss

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Loss resulting from damage to property not in plaintiff’s possession Perre v Apand Pty Ltd Questions Notes Defective structures and goods Woolcock Street Investments Pty Ltd v CDG Pty Ltd Questions Notes Avoidance of physical harm Legislative intervention Defects in goods Similar situations Regulatory authorities

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Chapter 17

Vicarious Liability 1 Introduction Necessary requirements Relationships 2 The relationship of employer and employee Employees and independent contractors Hollis v Vabu Pty Ltd Question Notes Distinguishing employees from independent contractors Organisation test ‘Working in one’s own business’? Professional staff in hospitals Borrowed employees 3 The course (or scope) of the employment Bugge v Brown Question Notes Prohibitions and the scope of the employment Level of generality with which the employment is described Frolic and detour Intentional acts

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6

Chapter 18

Deatons Pty Ltd v Flew Questions Note Sexual abuse Prince Alfred College Inc v ADC Question Notes Acts for the employee’s own benefit The independent authority exception Theories of employers’ liability for harms inflicted by employees Darling Island Stevedoring and Lighterage Co Ltd v Long Questions Notes Principal and agent Sweeney v Boylan Nominees Pty Ltd Questions Notes ‘Akin to employment’ in the United Kingdom Statutory agency Common law presumption Car hire and taxicabs Non-delegable duties Burnie Port Authority v General Jones Pty Ltd Question Note Questions Attempted principle Hospitals Schools Occupiers and landlords Bailees Highway authorities and repairs Leichhardt Municipal Council v Montgomery Notes

Concurrent Liability

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1

2

The common law Joint tortfeasors and several concurrent tortfeasors Solidary or proportionate liability? Judgment or release and satisfaction Contribution Indemnity Statutory modification Wrongs Act 1954 (Tas) Notes Separate judgments in action against joint tortfeasors Claims for contribution by settling party Claim for contribution from a party who has settled Claim for contribution where party sued not liable Successive actions by plaintiff Policy Plaintiff’s contributory negligence Mahony v J Kruschich (Demolitions) Pty Ltd Questions Notes Proportionate liability legislation Civil Liability Act 2002 (NSW) Notes Difficulties with proportionate liability legislation

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Index

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[page 1]

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Introduction

C H A P T E R

1

1 INJURY COMPENSATION AND THE LAW OF TORTS The size of the problem: some statistics

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The cost and incidence of injury 1.1.1 Injury is a leading contributor to death, ill-health and permanent disability in Australia.1 One way to measure the impact of injury is through the concept of a DisabilityAffected Life Year (DALY). DALYs are used to count the years of healthy life lost as a result of injury, illness and death.2 The Australian Burden of Disease Study, which measures the impact of different health states on the community, identified that in 2011 injury was responsible for 8.8 per cent of the burden of disease in Australia (that is, the impact of a disease or injury on a population, quantified using the DALY measure).3 Injuries were ranked as the ‘fifth most burdensome group of diseases’.4 Injuries range in impact from short-term conditions from which injured people recover quickly, to those that have longer-term and permanent impacts. Coumarelos et al estimate that 7 per cent of Australians (1.3 million people) experience a personal injury legal problem each year,5 and that close to half of those people experience a substantial injury problem with a moderate or severe impact on everyday life.6 Injuries of all levels of severity are represented in the new claims made on state and territory road crash and workers’ compensation systems, which annually number in excess of 300,000.7 Longer-term and permanent injury may result in disability. In 2015, the Australian Bureau of Statistics (ABS) reported that in Australia, 4.3 million people of all ages (18.3 per cent of the population) live with a disability, defined as ‘any limitation, restriction or impairment which restricts [page 2] everyday activities and has lasted, or is likely to last, for at least six months’.8 Among these, 302,300 people identified the main cause of their condition as injury (including poisoning and other external causes).9 An earlier ABS report indicated that the locations at which

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injuries giving rise to disabilities occurred were evenly spread across work (32 per cent), on the road (34 per cent) and other locations (34 per cent).10 A subset of this group are the estimated 20,000 Australians who have sustained catastrophic injury, including severe brain and spinal cord injury, multiple amputations, severe burns and permanent blindness.11 As the Productivity Commission noted in its landmark 2011 Report on Disability Care and Support, this group face costs that are high and enduring, and their number increases by an estimated 1000 each year.12 A range of data sources sheds light on the magnitude and effects of injury, including injury and health service surveillance data, cohort studies in research, reports of compensation and insurance claims and litigation, and ‘legal need’ surveys, which investigate injury problems with legal dimensions.13 We shall now look at the information available from different sources on the incidence of injury and the associated costs in various contexts.

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1.1.2 In 2015, Safe Work Australia (a government agency) conservatively estimated the economic cost of work-related injuries and illness (excluding pain and suffering) for the 2012–13 financial year at $61.8 billion, representing 4.1 per cent of Gross Domestic Product (GDP) for the same period.14 By comparison, the Bureau of Infrastructure, Transport and Regional Economics estimated the social cost of road crashes occurring in 2006 at $17.85 billion (1.7 per cent of GDP in that year).15 This estimate included vehicle repairs, loss of travel time, etc. ‘Human costs’ of road crashes (which included non-pecuniary costs of $1.768 billion) totalled $10.98 billion.16 1.1.3 According to the ABS, of the 12.5 million people aged 15 years and over who had worked at some time in the previous 12 months in 2013–14, 531,800 experienced a workrelated injury or illness — equating to 4.3 per cent, or 43 persons per 1000 persons who had worked in the previous 12 months.17 Among these, 326,200 (61 per cent) reported receiving some sort of financial assistance, and among those, just over half (56 per cent) received workers’ compensation. Only employees are entitled to workers’ compensation (the selfemployed are not). In total, 35 per cent of people who experienced a work-related injury or illness in the previous 12 months received workers’ compensation [page 3] (183,200 people). More than half (57 per cent) of the 477,900 employees injured in 2013–14 did not apply for compensation because their injuries were minor, they were not eligible, they did not want to prejudice their employment status, or for some other reason.18 Serious claims (defined as involving ‘either a death; a permanent incapacity; or a temporary incapacity requiring an absence from work of one working week or more’) accepted in that year amounted to 106,565. This figure represents an incidence rate of 9.8 per 1000 employees or a frequency rate of 5.9 serious claims per million hours worked. Serious claims classified as due to disease amounted to 10 per cent.19 In 2015, there were 195 work-related deaths from

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traumatic injuries.20 1.1.4 The number of people injured in road crashes annually is smaller than the number injured at work, but the consequences tend to be more severe. The ABS observed in 2001 that at that time ‘[s]ome 164,190 lives have been lost overall since road crash death records commenced in 1925, almost double the aggregate death toll of Australians killed in the four major wars in which this country has been involved (89,850 deaths)’.21 The road toll peaked in 1970 at 3798 deaths,22 and by 2015 it had fallen to less than a third (32 per cent) of that number, at 1205.23 Over one-quarter (26 per cent) of those seriously injured due to road traffic crashes sustained life-threatening injuries over the period 2001–15.24 In 2008–09, at least 34,116 people were hospitalised due to a road vehicle traffic crash (53,406 for all land transport and 55,141 for all transport injuries).25 People sustaining land transport injuries contributed 233,882 patient days in hospital. The rate of serious injury this represented was 245.8 hospital separations per 100,000 population. Road vehicle traffic crashes accounted for 0.4 per cent of all hospital separations and 7 per cent of all injury-related hospital separations, while all land transport injuries accounted for 0.7 per cent of all hospital separations and 9.8 per cent of all injury-related hospital separations.26 1.1.5 In Woods v Multi-Sport Holdings Pty Ltd 3.1.51, McHugh and Callinan JJ differed on the permissibility and usefulness of referring for the purposes of the case to a survey by the ABS which included figures of the number of sports-related injuries (on this difference see the article by Burns cited at 3.1.51). Whether or not relevant to the decision in such a case, similar statistics are informative

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[page 4] for our present purpose of assessing the size of the injury problem in Australia. Most sports injuries are not severe, and they do not appear in great number in injury-related hospital admission and death statistics (though sports injuries are a major contributor to emergency department presentations).27 Nevertheless, in 2011–12 there were 36,237 sports-related hospitalisations in Australia.28 In Victoria alone, between 2007–08 and 2009–10 there were 12,460 adult hospitalisations for sports injury across a selection of 16 sports, which included football, other team ball sports, team bat and stick sports and racquet sports.29 1.1.6 Among the most severe injuries suffered by workers, road users and participants in sport and recreation are spinal cord injuries, resulting in quadriplegia and paraplegia. Hospitals treating these patients participate in a registration scheme from which we can derive statistics as to the incidence of this type of injury. Each year, 300–400 new cases (from injury and disease) are added. In 2007–08 there were 285 new registrations from traumatic causes, of which 101 resulted from traffic crashes and 27 were ‘water-related’.30 Improvements in care and life expectancy mean that each year there are more people in the community living with spinal cord injury. In 2005 it was predicted that by 2021 there will be

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between 10,500 and 12,000 people in this category.31 In the same year, an actuary estimated that the ongoing costs of caring for this group would be $500 million annually in 2005 dollars.32 1.1.7 Australia enjoys one of the best health systems in the world. Nevertheless, once inside hospital, patients are not necessarily safe from injury. For instance, from 2010–11 to 2014–15, public hospitals reported 13 procedures which involved the wrong patient or body part and which resulted in death or major permanent loss of function, and 152 instances of instruments or other material retained in the patient’s body after surgery and which required re-operation or further surgery for their removal.33 In 2014–15, about 569,000 (5.6 per cent) of hospital separations reported diagnoses or causes that indicated the hospital admission was the result of or affected by an adverse event.34 The publication from which this information comes warns that these adverse events data need to be treated with caution, given that they were collected for the primary purpose of recording patient care and data validation has not occurred.35 1.1.8 If we look beyond the categories discussed at 1.1.2–1.1.7, some of which contain small overlaps, to all injuries, we find that in 2013–14 there were nearly 500,000 hospitalisations due to injury, [page 5]

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representing 5.3 per cent of all hospitalisations. In the same year, injury was a cause of 7.6 per cent of all deaths in Australia, amounting to nearly 11,000 deaths.36 Most injury cases do not result in hospital admission or death,37 however, and it is likely that some five to six times as many people as were admitted to hospital received some medical treatment outside the hospital setting.38

Where injuries occur and their severity 1.1.9 The injuries these statistics report occur in the home, at school, during recreational activities such as sport, while undergoing medical treatment, in the workplace and on the roads. According to data on hospital separations, where a place of occurrence of injury is specified, the most common locations are health services settings (accounting for 59 per cent, owing mostly to the prominence of complications from medical and surgical care) and home (accounting for 22 per cent, particularly because of the high number of falls in this location).39 Hospitalisation and length of hospital stay are measures used to identify injury severity. Two of the leading causes of hospitalised injury in 2012–13 were falls (40 per cent) and transport crashes (12 per cent).40 The average length of hospital stay for patients with a fallrelated injury in a public hospital was 7.6 days, compared with 4.5 days for transport crash

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patients.41 Over the period 1999–2000 to 2012–13, there was an increase of 2 per cent per year in age-standardised rates for falls, though the rate of transport-related injury hospitalisations remained constant.42 There has, however, been a considerable reduction in road crashes since 1970.43 The ABS history of the Australian road toll attributes the turnaround in 1970 to ‘improvements to roads and vehicles, enactment of road safety legislation, intensive public education and enhanced police enforcement technology’.44 The ABS lists some of the more specific contributors to the reduction in the road toll, such as mandatory wearing of seat belts and random breath-testing. The law of torts does not feature in the list. Since 1970 six Australian jurisdictions have introduced no-fault motor accident schemes for non-catastrophic injury which supplement or replace the common law of torts to varying degrees. These schemes have not apparently impeded the long-term reduction in transport crash injuries and deaths in those jurisdictions when compared with the other jurisdictions in which the law of torts has remained more extensively in operation.

Personal injury litigation before and after the Ipp Report 1.1.10 Until the early 2000s, much of the time of the various Magistrates’, Local, District and County Courts and a substantial proportion of the time of the Supreme Courts of each of the states and territories was occupied in trying cases arising out of personal injuries.45 In 2002 the Treasurers [page 6]

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of the Commonwealth, state and territory governments established a committee (known as the Ipp Committee), whose terms of reference were introduced with the following categorical statement: The award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another. It is desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death.46

The meetings of ministers that led to the setting up of the committee were provided with two documents prepared by actuaries on the alleged increase in litigation and its costs.47 Although the documents contained much information about claims made on some insurance companies, they did not attempt to show the overall number of claims being made in Australia at the time. In the eyes of one commentator, they presented ‘a confusing plethora of data of manifestly variable quality and purport’.48 The committee itself referred to perceptions in the community which included that it had become too easy for injured persons to obtain damages. It declined to investigate for itself the accuracy of the perceptions and gathered no empirical evidence.49 The gathering of such evidence would have been impossible in the few months that the committee was given to report. The absence of a factual basis disturbed some commentators.50 One consequence of the subsequent debate was

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that the Australian Prudential Regulatory Authority (APRA) established a National Claims and Policies Database recording all policies issued by and claims made to regulated insurers from 2003 onwards, in respect of professional indemnity, public and product liability insurance policies: (last accessed 7 March 2017). A report based on the database shows that in each accident year from 2005–13 between 9040 and 9965 bodily injury claims were made under public liability and professional indemnity policies.51

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[page 7] 1.1.11 Additional valuable information also became available from 2003 for a short time, in relation to claims on medical indemnity, public liability and professional indemnity insurers. In May 2002 the largest medical indemnity insurer was placed in provisional liquidation. As part of the Australian Government’s response to this crisis, the Australian Competition and Consumer Commission (ACCC) was asked to monitor medical indemnity premiums on an annual basis to assess whether they were actuarially and commercially justified. As a result of the meetings of Commonwealth and state Treasurers which set up the Ipp Committee, the ACCC was also asked to monitor premium pricing in public and professional indemnity insurance. It produced six Medical Indemnity Insurance Monitoring Reports and five Public Liability and Professional Indemnity Insurance Monitoring Reports.52 From these may be gleaned information on trends in the number of claims, the size of claims met and the time between claims being reported and closed. The Australian Institute of Health and Welfare (AIHW) also gathered useful information on claims in the public sector in institutions such as hospitals and clinics. Later it also included information from the private sector, though private hospitals continued to be excluded.53 Reports in its series Safety and Quality of Health Care provided a valuable picture of medical injury claiming activity, but this series was discontinued, with the final report presenting data on the 2012– 13 financial year. 1.1.12 The Ipp Committee’s report (Commonwealth of Australia, Review of the Law of Negligence: Final Report, Canberra, 2002 (Ipp Report)) contained 61 recommendations, many of which were indeed aimed at ‘limiting liability and quantum of damages arising from personal injury and death’. Legislatures seized on these recommendations and many were enacted to varying degrees in the different jurisdictions. Some legislatures went further, enacting statutes that limited liability beyond that recommended by the Ipp Report and in some instances directly contrary to recommendations in that report to retain the status quo. Instances of this legislation will be set out in the chapters of this book dealing with the law of negligence. An analysis of personal injury claims (other than motor car and workplace claims) in the courts both before and after the legislation demonstrated that the numbers varied from jurisdiction to jurisdiction, but were mostly stable until a spike occurred as practitioners

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brought forward litigation in anticipation of the legislation. Once the legislation came into force, filings in the courts fell dramatically in most jurisdictions. The effect is illustrated in Figure 1.1, which shows the average annual rate of claims lodged per 10,000 population in each jurisdiction in the years preceding the reforms. It excludes a ‘spike’ year (in which claimants rushed to lodge proceedings to avoid the effect of the reforms) where possible, and shows the annual average rate of claims for 1–3 years following the reforms.54 [page 8]

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Figure 1.1 Average annual injury claims per 10,000 population before and after tort law reform, by jurisdiction (NSW and Qld figures based on estimates of year to year state totals)

1.1.13 Apart from the regular courts, there are numerous specialist tribunals dealing daily with hundreds of workers’ compensation and other cases. If the matters are before the ordinary courts, the law which applies in determining whether the plaintiffs in these cases are to receive compensation for their injuries or for the death of their relatives is nearly always part of the law of torts. Yet, although the courts have often been congested with these cases and there are frequently long delays — from two to, sometimes, over 10 years after the accident — before they come on for hearing, the matters that do go to trial represent only a very small tip of the iceberg. A large 2012 study of how Australians dealt with legal problems they experienced in the previous 12 months found that 72 per cent of personal injury problems were dealt with by seeking advice (from legal and non-legal professionals or

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organisations); a further 8.8 per cent of injury problems were handled without advice, and 19 per cent of injury problems were dealt with by the injured person taking no action.55 It is not always necessary to seek legal advice in order to claim, but without legal advice few people would institute court action.56 Of all the actions started by the issue of a writ, historical data suggest that 5–10 per cent or less are disposed of by the judgment of a court following a trial; the vast majority are settled by negotiation.57 [page 9]

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With regard to medical injury claims, the AIHW reports that amongst the 5309 medical injury claims finalised in 2012–13, 74.9 per cent were discontinued, 21.5 per cent were resolved by negotiation and 3.6 per cent (193 claims) were finalised by a court decision.58 Some settlements occur before a writ is issued or even before legal practitioners are consulted.59 While theoretically settlements, whether before or after the issue of a writ, depend on the law of torts, a large part is played by factors such as the availability of evidence, the financial need of the plaintiff and the assessment of various risks of litigation. 1.1.14 It is reasonable to assume that road crash survivors are more likely to make claims and receive tort compensation than many other groups of potential claimants. Compared with other types of personal injury problems, people who experience motor vehicle injury problems are less likely to take no action (12.2 per cent versus 19 per cent) and are more likely to use a legal adviser (27.4 per cent versus 16.1 per cent).60 In New South Wales, there is some evidence that over the period 2008–15, injured persons’ propensity to claim (the number of claims divided by the number of road casualties) increased from 30 per cent to 60 percent.61 The same evidence shows that in 2015, the average claim size for minor severity injuries was $15,000 for non-legally represented claimants and $95,000 for legallyrepresented claimants; the average claim size for moderate severity injuries was $195,000, and for serious severity injuries, $379,000.62 Large claims are more likely to be rejected or to lead to an allegation of contributory negligence, which reduces the payment.63 Only a small percentage of the hundreds of thousands of annual workers’ compensation claims lead to claims for damages at common law against employers,64 though common law claims consume a hugely disproportionate share of the total costs of the workers’ compensation system.65 People suffering serious injuries from whatever cause are more likely to recover damages than those whose injuries are trivial, yet comparatively few [page 10] of them receive tort compensation.66 In 2012–13 most medical claims were finalised for less than $10,000 (63 per cent), including claims closed with no payment being made (13 per Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

cent). There were 180 claims in excess of $500,000, making up just 3 per cent of all finalised claims.67 Newspaper reports often lead people to believe that victims of accidents are constantly ‘winning’ large awards of damages.68 This is far from true. 1.1.15 Whether people injured in accidents receive compensation through tort or one of its alternatives, or no compensation at all, depends on how the injury occurred, where it occurred in Australia, and whether the jurisdiction in which it occurred had fault or no-fault systems of compensation. Taking account of workers’ compensation and other no-fault schemes in existence at the time, the Productivity Commission summed up the situation with regard to catastrophic injury as follows: Current coverage across the broad range of circumstances in which catastrophic accidents occur — from motor vehicle use, playing sport and various recreational activities, medical treatment and criminal assault — is patently inadequate. A person could acquire an identical disability from an accident in any of these contexts, and as such, there is a good rationale for equal insurance and access to care and supports.69

1.1.16 Non-industrial and non-road injuries result in a comparatively negligible number of tort claims each year; if they do occur they are likely to concern those branches of the law of torts known as occupiers’ liability, products liability and professional negligence. The predominance of motor and industrial injury cases in the courts and in settlement negotiations is due not so much to the law of torts, but to something that has been grafted onto that law: liability insurance. As we shall see, liability insurance is compulsory in the case of road crashes causing bodily injury and it is also almost universally found in the case of industrial injury. More recently, professional indemnity insurance may be compulsory or a condition of registration for medical practitioners.70 In most of the remaining areas such insurance is voluntary; the sprinkling of claims in areas other than road and industrial accidents can nearly always be attributed to the presence of some liability insurance cover or the possibility of recovery from some government agency.

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The role of the law of torts 1.1.17 The law of torts plays an important role in determining whether a loss that befalls one person should or should not be shifted to another person. Naturally, this is impossible in any literal sense in the case of personal injury or death, but some of the consequences of injury or death, such as medical expenses incurred or loss of wages, can be made good by payment of sums of money, called ‘damages’. Damages may also be paid, for want of a better means of compensation, for non-pecuniary consequences such as pain and the effect of the injury on the sufferer’s overall enjoyment of life. In this sense the loss may be shifted from the injured person to the person who pays the damages.

Collateral benefits 1.1.18 If a person is injured, there might be no other individual who could be regarded as in any way responsible; the loss necessarily lies where it falls unless it is assumed by the

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community generally.

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[page 11] About 20 young people each year become quadriplegic by diving into shallow water.71 Although a tort claim against the occupier of the land on which the incident occurs is occasionally successful, most have no possibility of claiming damages from anyone.72 At a less serious level, a householder who spikes a foot while digging with a garden fork could hardly make a tort claim on anyone. However, the medical expenses will be borne in part by Medicare and some ancillary services may be paid for by a private health insurance fund, which may also pay for some hospital costs not met by the State. A person who was off work for a week or two would probably receive sick pay from an employer; if the disability continued, there could be an entitlement to one of the benefits or services provided under the Commonwealth social welfare legislation. In a really serious case, the injured person might retire and receive benefits under a private superannuation scheme. In a rare case, a sum of money might be available under a private insurance policy. While these various benefits seldom make up for the full loss sustained by an injured person73 — particularly if one considers as a ‘loss’ the pain that has been suffered — many people today are content to recoup what they can from these sources, even if there happens to be someone else who could be regarded as responsible. Thus, if instead of spiking a foot with a garden fork, our householder cut it as a result of a defect in a power mower, there is a strong possibility of holding liable the retailer who sold it (an implied term of the contract of sale would assist the purchaser in such an action) or its manufacturer (against whom the householder would have to claim in tort or under manufacturers’ liability legislation): see 15.3.1S. Nevertheless, the householder may be satisfied with recovery from their health insurer, their employer, the State and any other private insurers. As we have seen, the vast majority of people who sustain injuries never think of making a claim for damages. In such circumstances economists say that the loss, or part of it, has been ‘externalised’ (the significance of which will appear later: see 1.6.4).

Commonwealth income support 1.1.19 The major Commonwealth benefits are not confined to people who are injured; they are available whether the cause of a disability is an accident or something else. Income support and other monetary benefits are provided for in the Social Security Act 1991 (Cth). In general, the benefits are payable to persons residing in Australia (at least at the time when the claim is lodged and, in some instances, for a qualifying period beforehand and having the intention to remain in Australia afterwards), who are not in receipt of another pension (such as the age pension), and who are over 16 years of age or, in the case of a sickness allowance, have turned 22 before the incapacity for work arose. Various means tests apply which

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exclude, or reduce, the benefits payable to persons with other sources of income and assets. There are numerous other benefits and services provided by the [page 12] Commonwealth, the states and territories and the private sector to people with disabilities, however those disabilities were caused. 1.1.20 Legal practitioners need to be aware of the income support and other benefits provided by the Commonwealth in order to properly advise their clients with disabilities. The present Act, the Social Security Act 1991 (Cth), which came into force on 1 July 1991, replacing earlier legislation in the field, is supposedly written in ‘plain English’. However, in a case in which the court had to decide whether an award of damages to a brain-injured plaintiff, which was placed in a trust for him, affected the social security benefit paid to his carer, Weinberg J quoted criticism of the drafting of the Act in Blunn v Cleaver (1993) 47 FCR 111 (FC) at 127–8, and added that ‘[r]egrettably, as each year goes by, the Social Security Act becomes still more complex, and less accessible to those who most need to understand it’: Secretary, Department of Family and Community Services v Geeves (2004) 136 FCR 134 (FC) at [37]. Given its length and complexity, it is not possible to set out the details of the legislation here. It should not be overlooked that people seeking legal advice in respect of injury or death may also be eligible for more generally available Commonwealth benefits, such as those for persons who are unemployed.

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Enter the law of torts 1.1.21 Assume, however, that an injured person is not satisfied with recovery from collateral sources — and this is more likely to be the case the more serious the injuries — and that some other individual could possibly be regarded as responsible. For instance, say that A, while riding a bicycle on a country road, is knocked down by a horse that has escaped from a neighbouring paddock. The possibility exists of A being able to shift the loss caused by the consequent injuries to B, the farmer who owns the horse. It is the law of torts that would have to be invoked to decide whether such a shift is to be permitted. Different solutions are theoretically open. The law could hold that in such circumstances the loss is not to be shifted, but is to remain with A. Alternatively, it could hold that B’s ownership of the horse is sufficient to make B bear the risk of any injury it causes, so that the loss would always be shifted from A to B if A sued B and B had the money to pay damages. The law could also adopt an intermediate position, allowing the shift from A to B only if B can be shown to have been at fault in some way connected with the escape of the horse. Whether the rule is one of no liability (that is, no shift), strict liability (an almost invariable shift), or fault liability (a conditional shift), it is a rule of the law of torts. Which rule applies in any given case largely depends on history. If the relevant rule does allow a shift of the loss, other rules of the

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law of torts will determine whether the loss is to be shifted in full or whether A is to be left to bear part of it. In this book we shall have to look at many precedents, which historically determine the particular rule in a wide variety of instances. We shall be looking at the judgments in a host of cases not only to learn the rules which it has been decided should be applied to the circumstances of those cases when they recur, but also to try to discover the method that the courts adopt in order to lay down the rules in novel situations. In so doing, we invite students to consider the cases critically. The courts consider whether the rules are internally consistent with one another, seeking a general underlying principle from which the outcome of an individual case can be deduced: see, for example, Sullivan v Moody 2.2.17C and Brodie v Singleton Shire Council 7.6.18. This is the traditional role of legal analysis, which students who intend to practise law must learn. Our aim is to take students further and to ask them to consider whether the rules and methods devised by the courts (and in some instances the legislatures) adequately serve the needs of the community in the twenty-first century; in other words, to view the law of torts in its broader social context. 1.1.22 Let us now assume that the circumstances are such that the relevant rule of the law of torts countenances the shifting of the loss from an injured person (A) to someone who is deemed

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[page 13] responsible for it (B). If the loss is small, the probabilities are that A will be content with recovery from collateral sources and will not think it worthwhile to invest time and money in litigation, by which alone the shift can be accomplished if B is unwilling to pay. Even if the loss is large, A may have made adequate arrangements to ensure that collateral sources are adequate; for instance, A may have entered into an insurance contract under which the insurer has promised to pay a sum of money if the particular loss occurs. This is known as ‘first party’ insurance and it is frequently found (and relied on) in the case of property damage, such as where A’s house is destroyed by fire, even if it can be shown that B caused the fire. Health insurance, which covers the payment of medical and hospital expenses, is also of this type; but private injury insurance, which covers personal injury losses on a first party basis, is relatively uncommon.74 Even if not content with the recovery from collateral sources, including any first party insurance, A may still not be willing to sue B. First, there is the time, trouble and anxiety involved in litigation. Second, there is little to be gained, and much to be risked, if a judgment against B proves to be fruitless because B is unable to pay damages. Legislation in some jurisdictions has also made it more difficult for plaintiffs with small claims to succeed in recovering damages, by imposing thresholds which must be overcome.75 In the early days of personal injury litigation it would usually have been worthwhile for A to sue B only if B was wealthy: for example, if B was a railway company. Today, it does not

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matter so much whether B, personally, is wealthy, as long as B is covered by liability insurance.76 As previously mentioned, such insurance is almost universal in the case of motor crash and industrial injuries and is common in some other areas, such as occupiers’ liability and professional negligence. We shall see below how this came about. A’s knowledge that B is insured largely removes the risk of B’s inability to pay and encourages litigation in the areas where liability insurance is common. 1.1.23 Let us now look at the matter from the potential defendant’s point of view. In the early days of motoring, the owner of a motor car was likely to be a comparatively wealthy person. Middle class motorists stood to lose a good deal if they ran down pedestrians who could, after obtaining judgment, levy execution on the motorists’ houses and other material possessions. To protect themselves, such motorists were likely to take out liability insurance, that is, insurance that would indemnify them against any liability they might incur to third parties. (Liability insurance is also known as ‘third party’ insurance: the insurer promises to indemnify the insured against liability to pay money to persons who are not parties to the contract of insurance.) Similarly, all but the largest enterprises considered it wise to take out liability insurance to protect their assets against tort claims, especially as barriers to [page 14]

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their liability to their employees were steadily eroded.77 Today, manufacturers and others voluntarily insure against product liability, professional persons voluntarily insure against malpractice actions78 and occupiers of premises often obtain cover against their liability as such as part of ‘comprehensive’ householders’ and similar insurance policies.79 1.1.24 Although liability insurance is intended in the first instance to protect the policyholder, incidentally the injured victim benefits, since he or she can be reasonably confident that any judgment obtained will not prove worthless.80 Knowledge that B is insured will mean that A will not be deterred from suing by the fear of finding that the defendant is insolvent. On the other hand, though nominally the action is against B, B’s insurer will usually act on B’s behalf, in the protection of its financial interest. A is thus opposed to a formidable and experienced opponent with ample time and resources to fight a case all the way to the highest court and to whom a loss in any particular case is not likely to be catastrophic. The bargaining power in settlement negotiations is most uneven.81

Compulsory insurance 1.1.25 With regard to road and industrial accidents, voluntary insurance was deemed insufficient to address the needs of injured people and the community, and law reform ensued. Younger persons proportionately cause more road accidents than older drivers; small backyard firms have proportionately more industrial accidents than do large factories. The

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material assets of the majority of those responsible for accidents are likely to be minimal and such persons are also less likely to insure voluntarily. Therefore, during the 1930s and early 1940s, each jurisdiction in Australia in turn made it compulsory for the owner of a motor vehicle to insure against liability for bodily injury arising out of the use of such vehicle. Although in recent years limitations have been introduced in all states on the amount of damages that may be recovered where injury results from a motor accident, features of the modern Australian compulsory insurance policies in this area which differentiate them from motor policies elsewhere are [page 15] that the indemnity against liability is unlimited82 and covers even unauthorised users of the vehicle.83 When coupled with statutory prohibitions on insurers relying on breach of conditions of the policies, comprehensive nominal defendant schemes to deal with cases of uninsured and unidentified motorists, and the National Injury Insurance scheme (see 1.4.32), these policies make it unnecessary for victims to look elsewhere for solvent or insured defendants, so that Australia has largely been spared the American phenomenon of injured persons suing, for instance, a social host who supplied liquor to the driver.84 Similarly, in all states and territories of Australia, employers, including Commonwealth agencies, have been required to insure against liability in tort for personal injury caused to employees or to qualify as self-insurers,85 and employees are covered under the workers’ compensation scheme even where the employer fails to insure.

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1.1.26 Some of the features of compulsory motor vehicle liability insurance in Australia were referred to by Kirby J in Imbree v McNeilly 3.2.32C: [T]he existence throughout Australia of legal requirements governing owners and drivers of motor vehicles, to secure and maintain defined insurance against the risks of injury to third parties as a precondition to valid registration and driving of vehicles anywhere in the Commonwealth, is … a universal feature of Australian statute law. … [L]iability insurance has been mandated by statute in respect of the Northern Territory (and everywhere else in Australia) for 60 years and more. … [This] form of insurance exists to provide coverage against ‘fault’ on the part of drivers of motor vehicles. It does so because of the recognition, by the 1930s, that the use of vehicles would inevitably occasion a toll of death and injury, for which a system of compulsory insurance was essential. That system was necessary to prevent intolerable burdens of unrecoverable losses falling upon persons injured in consequence of the ever-increasing use of motor vehicles on Australian roads of varying conditions. Such persons would otherwise often have been thrown back upon social security entitlements, welfare agencies or their families. Instead, a statutory insurance fund was provided from subventions paid by all motorists. That is the context in which the applicable principle of the common law falls to be determined (at [130], [170], [171]).

1.1.27 As noted by Kirby J, the statutes in force in Australia86 make it an offence to use a motor vehicle on a road unless it is insured by a third party policy that complies with the Act. By way of example, we [page 16]

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shall refer briefly to some of the further provisions of the Motor Accidents Compensation Act 1999 (NSW). The insurance is effected by the issue of a certificate by a licensed insurer on acceptance of a premium: s 11.87 The Roads and Maritime Services must not register or renew the registration of a vehicle unless a certificate is produced or there is other evidence of insurance: s 12. The policy is in the statutory form set out in s 10, which contains none of the conditions and exclusions usually found in insurance policies. That the insurance is unquestionably for the benefit of injured victims — not for the protection of drivers and owners — is clear from the provision that the policy ‘insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle … in the use or operation of the vehicle …’.88 The insurance cover now applies: … only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) (b) (c) (d)

the driving of the vehicle, or a collision, or action taken to avoid a collision, with the vehicle, or the vehicle’s running out of control, or a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.89

This definition replaces the traditional cover for death or injury caused by or arising out of the use of the vehicle.90 The wide interpretation given to this phrase in cases such as Brewer v Incorporated

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[page 17] Nominal Defendant 1.4.25 (plaintiff injured when struck by rock deliberately thrown at vehicle in which she was passenger by occupant of another car); Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 (child left unattended by father in motor car injured when young brother set fire to car while playing with matches) led most legislatures to introduce more restrictive definitions such as the one now found in New South Wales.91 The broader definition remains applicable to compulsory third party insurance coverage in Victoria, with the odd result that restrictions on common law damages applicable to transport accidents (which are more narrowly defined) do not apply to accidents falling outside the narrow definition, but within the broader one, yet the fund must pay the damages: Hynes v Hynes (2007) 15 VR 475 (CA) (plaintiff injured when defendant motorist released radiator cap and hot water escaped). The introduction of autonomous vehicles on Australian roads in the near future is also likely to create challenges in relation to the traditional threshold

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definition in Australian compulsory insurance schemes, where accidents are not caused through the actions of a human driver, or in relation to driving which typically involves human control.92 At common law, a difficulty in enforcing the indemnity in the case of a driver other than the owner might have arisen: Vandepitte v Preferred Accident Ins Co of NY [1933] AC 70 (PC). Any such difficulty is overcome by s 16, which makes the insurer, ‘despite any other law, liable to indemnify the insured persons under a third-party policy of the insurer in respect of any liability which the policy purports to cover’: see Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd (2009) 240 CLR 391 at [20]. 1.1.28 In practice, the licensed insurer will conduct and control negotiations in respect of the claim and settle the claim at any stage: s 78. The Act contains provisions designed to encourage settlements.93 The claimant has a duty to co-operate in this respect: s 85. If settlement negotiations are unsuccessful and the matter goes to litigation, the insurer will take over the defence of the action (s 78(1)(b)) and judgment may be entered against it if a judgment against the insured is not satisfied within specified times: s 23. Licensed insurers may recover what they have paid from unauthorised drivers: s 20. A novel provision introduced into New South Wales94 allows a licensed insurer to recover an excess of up to $500 from an insured person who was more than 25 per cent at fault: s 21. Any action which is taken to recover damages for death or injury caused by or arising out of the use of an uninsured or unidentified vehicle, which would have been brought against the owner or driver, or where the driver is dead, may be brought against [page 18]

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the Nominal Defendant.95 In certain circumstances the Nominal Defendant may recover the payments made from an uninsured owner or driver: s 39. 1.1.29 It is not possible for parties such as a driver and passenger to contract out of the provisions of the Act: s 216. It is also common to find a provision in the relevant legislation that nothing which at common law vitiates a contract of insurance as between an insured and the insurer — such as misrepresentation or non-disclosure or non-reporting of accidents — entitles an authorised insurer to escape liability to the injured third party.96 The liability of the insurer is only for death or injury, which is essentially personal injury, including ‘damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses’, pre-natal injury and psychological and psychiatric injury: s 3. At common law, an injured party was able to bring separate proceedings against the driver or owner for damages in respect of other property damage, such as to the plaintiff’s car or clothing (Brunsden v Humphrey (1884) 14 QBD 141 (CA)),97 but was not compelled to do so. Where a judgment is partly in respect of liability for death or personal injury and partly in respect of other loss, the court is required to apportion the damages and costs: s 145.

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1.1.30 Unlike older legislation, the first object of the Act is ‘to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities’: s 5(1)(a). For the duty of the insurer in respect of rehabilitation and to make interim payments in cases of financial hardship, see ss 84 and 84A. 1.1.31 Occasionally, problems arise because the legislation is not uniform throughout Australia, yet vehicles insured in one state regularly travel in others, causing death and injury there and giving rise to difficult conflict of laws arguments.98 Apart from these instances, victims of road crashes are reasonably assured that, provided the law of torts gives them some remedy against the owner or driver of a motor vehicle, they will have access to large insurance funds, contributed to by owners of all motor vehicles, to the extent of their tort entitlement, subject in more recent years to thresholds and caps on the amount of damages. Yet even without an interstate element, the schemes occasionally break down so as to deny effective compensation to persons who suffer loss as the result of death or injury due to negligence. For instance, in Nominal Defendant (Qld) v Taylor (1982) 154 CLR 106, a majority of the High Court held that under the then Queensland Act, children of parents who were killed in an uninsured car could not recover damages from the Nominal Defendant in respect of the death of their father, who was the owner of the car, although the death was caused by the negligent driving of the [page 19]

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mother.99 An illustration of the system operating in such a way as to shift a proportion of the loss from the insurance funds to a private individual is Soblusky v Egan (1960) 103 CLR 215. 1.1.32 The Victorian Law Reform Commission, ‘Chapter 2: Facilitating the Early Resolution of Disputes without Litigation’ in Civil Justice Review: Report, [2008] VLRC 14, Melbourne, 2008, p 109 observes that: Customarily, formal court-based dispute resolution procedures start when legal proceedings begin between the parties in dispute. … The rules of most courts allow for various types of pre-action procedures, designed to facilitate the future conduct of litigation. … In some Australian and overseas jurisdictions forms of pre-action procedure have recently been introduced for a fundamentally different purpose — to avoid litigation entirely. These pre-action procedures seek to encourage: (a) early and full disclosure of relevant information and documents (b) settlement (c) where settlement is not achieved, identification and narrowing of the real issues in dispute in order to reduce the costs and delays involved in litigation. The ways used to achieve these objectives vary considerably between and within jurisdictions.

Queensland was one of the first jurisdictions to introduce pre-litigation procedures through the Personal Injuries Proceedings Act 2002 (Qld).100 The procedure is described in Rogers v Roche [2016] QCA 440 (CA) at [57]–[59].101 Non-compliance under some statutes has the effect of preventing the institution of litigation, though there are exceptions. Under other statutes it merely precludes the award of damages under particular heads.102 Which

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category a particular provision falls into ‘requires close attention to the words of the statute and the statutory scheme in general’.103 Failure to comply with pre-trial procedures may therefore in some circumstances not invalidate subsequent proceedings.104 1.1.33 Motor vehicle injury claims are now typically resolved during the pre-litigation procedure phase. On the procedure in motor accident cases in New South Wales, see Lee v Yang (2006) 46 MVR 243 (NSW CA), where Giles JA said: As part of the encouragement [of early resolution of claims to compensation for injuries sustained in a motor accident: s 5(1)(b)], notice of a claim is to be given to the third-party insurer of the person against whom the claim is made (s 72(2)), the insurer acts for that person (s 78), and the insurer must try to resolve the claim justly and expeditiously: s 80(1). By s 81(1), the insurer must promptly notify the claimant whether it admits or denies liability for the claim. Part 4.4 of the Act provides for claims assessment and resolution. By s 108, court proceedings in respect of a claim may not be commenced unless a certificate has issued that the claim is exempt from assessment, or there has been assessment of the claim and a certificate has issued in respect of the claim (at [1]; emphasis added). By s 92 of the Act, a claim is exempt from assessment if it is of a kind exempt under certain guidelines or the regulations, or if on a preliminary assessment it has been determined that it is not suitable for assessment. …

[page 20]

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Making an assessment is governed by s 94 of the Act. Where an assessment has been made, its effect as between the claimant and the insurer is governed by s 95. Sections 94 and 95 relevantly provide: 94 Assessment of claims (1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability.105 (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. … 95 Status of assessments (1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment. (2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if: (a) the insurer accepts that liability under the claim, and (b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued Note: If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued. … Section 151 of the Act relevantly provides: Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

151 Costs where claims assessment made (1) This section applies if an assessment is made under Part 4.4 of the amount of damages for liability under a claim. (2) If the claimant does not accept that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued, then the following provisions have effect with respect to liability for costs incurred after the certificate of assessment was issued: (a) the insurer is liable to pay the costs if: (i) the amount of court awarded damages in respect of the claim exceeds the amount of damages specified in the certificate of assessment by at least $2,000 or 20% (whichever is the greater), or (ii) the amount of court awarded damages in respect of the claim exceeds the amount of damages specified in the certificate of assessment by at least $200,000, (b) the claimant is liable to pay the costs if the amount of court awarded damages in respect of the claim does not exceed the amount of damages specified in the

[page 21] certificate of assessment, but the maximum amount that a claimant is liable to pay for the insurer’s costs is $25,000 (or such other amount as is determined by the Authority by order published in the Gazette), (c) except as provided by paragraph (a) or (b), the insurer and claimant are liable to pay their own costs (at [1]– [4]; emphasis added)

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See also AAI Ltd v State Insurance Regulatory Authority of New South Wales [2016] NSWCA 368 at [24]–[42]. 1.1.34 In 2011, the Productivity Commission recommended a National Injury Insurance scheme106 which would provide lifetime care and support for people who had been catastrophically injury regardless of fault, including those injured in motor vehicle accidents (see 1.4.32). There are now lifetime care and support schemes107 for those who have been catastrophically injured in motor vehicle accidents in all Australian states and territories.108 We outline the New South Wales scheme at 1.4.20. Typically such schemes remove the common law right of claimants to receive lump sum damages in respect of their future care and support needs.109 Rather, schemes provide ongoing funding for scheme participants for their reasonable care and support for life. However, the scheme may be entitled to recover its expenditure from the insurer of a motorist who is liable.110

A blame society? 1.1.35 Not everyone sees the number of those who bring successful claims in tort as too few. One driver of the tort law reform legislation in 2001–03 was the belief that Australian society had become excessively litigious. Prior to the introduction of this legislation, a judge expressed the following misgivings: The rules currently embraced by our system include: 1. 2.

A reduced level of causation necessary to sustain a claim. The rule … that a defendant ‘must take his victim as he finds him and pay damages accordingly’.

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3. 4.

Relaxation of control devices such as remoteness of damage to stem the arguable endlessness of the consequence of every human act. Common use of hindsight, despite frequent disavowal, in concluding that virtually anything that has happened was reasonably foreseeable.

[page 22] 5.

Ever-increasing levels of damage[s], aided by the methodology of economic rationalism, unalleviated by collateral benefits actually received, and aggravated by the inclusion of heads of damage that a claimant does not suffer assessed at ‘commercial’ rates.

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These are some of the tools that increasingly permit unrealistic results in such cases, in both liability and quantum. Today it is commonplace that claimants with relatively minor disabilities are awarded lump sums greater than the claimant (or defendant) could save in a lifetime. The generous application of these rules is producing a litigious society and has already spawned an aggressive legal industry. I am concerned that the common law is being developed to a stage that already inflicts too great a cost upon the community both economic and social. In a compensation-conscious community citizens look for others to blame. The incentive to recover from injury is reduced. Self-reliance becomes a scarce commodity. These are destructive social forces. Also much community energy is wasted in divisive and non-productive work. A further consequence is the raising of costs of compulsory third party, employer’s liability, public risk and professional indemnity insurance premiums. These costs are foisted upon sectors of the public and in the end upon the public at large. I would prefer that these problems be rectified by the development of a more affordable common law system, but in recent times its development has been all in one direction — more liability and more damages.111

It is doubtful that there had been any great increase in litigation preceding the Ipp reforms. As we discussed above, since the introduction of reforms across Australia, the number of claims by injured people has remained relatively stable or has fallen: see 1.1.10–1.1.12. Recent concerns about the growth of motor vehicle accident claims in New South Wales, particularly small claims, have led to a government proposal for the reform of the NSW CTP scheme to a hybrid no-fault defined benefits scheme with lump sum common law benefits retained only for serious injury.112 At the time of writing, a Bill had been introduced in relation to the proposed new New South Wales scheme; however, it had progressed no further.113

2 PROPERTY DAMAGE AND INSURANCE 1.2.1 For every road accident causing personal injury, there are many more that merely cause damage to the vehicles involved. Some cars cause damage to parts of buildings, such as gate-posts or plate-glass windows. Fires and burglaries, too, cause millions of dollars of property damage and loss annually. Yet the manner of compensating for these various losses has developed quite differently [page 23]

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from compensation for personal injury. Liability insurance in respect of property damage is generally not compulsory.114 In the past, at least two state governments have rejected proposals to introduce such insurance for motor accidents, principally because premiums would become so excessive as to be unacceptable to the motoring public. With regard to serious property loss and damage, particularly to buildings, first party insurance provides most of the necessary protection. Such insurance, though voluntary, is widespread. In nearly all instances, the victim of a property loss is content to rely on first party insurance cover. However, bushfires in Victoria led to a spate of class actions claiming for property damage, either because the owners were under-insured or because the insurers have exercised their right of subrogation.115 Some writers, sharing the sentiments expressed at 1.1.35, would like to see all tort liability abolished and personal injuries dealt with in the same way as most property damage, that is, by means of voluntary first party insurance: see P S Atiyah, The Damages Lottery, Hart Publishing, Oxford, 1997. As we shall see, there are other solutions to the personal injury problem: see 1.4.25–1.4.33. 1.2.2 To return to the present position, though it is common, insurance against damage to one’s own motor vehicle is not universal, and a motorist who is convinced that the other party to a collision was to blame will occasionally resort to a common law action, particularly if the other motorist does carry voluntary third party liability insurance. Another incentive to a private common law action for property damage sustained in a road accident is the fact that any claim on the victim’s first party insurance is likely to be subject to an ‘excess’ — which requires the insured to bear a proportion, say $500, of each claim — and may lead to an increase in the premiums the insured has to pay in the future (loss of the ‘no-claim bonus’). These measures, designed to reduce the overall cost of insurance (since small claims absorb a disproportionate part of administrative expenses), cause a great deal of consumer dissatisfaction and encourage a certain amount of tort litigation against the allegedly blameworthy driver. Seldom does the magnitude of this sort of damage exceed the jurisdiction of the inferior courts. Some of the dissatisfaction might be met by allowing disputes as to loss of no-claim bonuses and other uninsured losses to be adjudicated on by small claims tribunals, where legal representation is normally excluded and costs are kept low: compare Hobbs v Marlowe [1978] AC 16 (HL). There are now organisations that will assist plaintiffs to have their cars repaired or will hire them replacement cars without cost until a driver responsible for a collision has been sued. The issue of recovery in these circumstances sometimes leads to disputes: see 8.3.12. 1.2.3 Despite the prevalence of reliance on first party insurance in cases of property damage, some of the leading tort cases in this book are concerned with this type of damage: for example, the two Wagon Mound decisions 4.3.27C and 4.3.32. The explanation for such cases being pursued to trial in a superior court and then right through to the ultimate appellate court is, paradoxically, not usually the absence of insurance, but its presence. The property owner, though mostly content to rely on the first party insurer to make good the loss suffered, may then be caught up in a doctrine of the law of insurance: subrogation. An insurer

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who has indemnified the insured against loss (and the doctrine applies only to indemnity insurance, not life or most personal accident cover) is entitled to the benefit of any rights the insured may have against third parties. This enables the insurer to step into the shoes of the insured and, using the insured’s name, to bring an action against any third party who is liable to the insured at common law. Since they need to maximise their profits or minimise their losses, insurers are not going to throw good money (in the form of legal expenses) after bad and sue every burglar or [page 24] arsonist; they will choose their defendants carefully and sue only when the defendant is able to pay any damages awarded, such as where a government department is responsible or the defendant carries liability insurance.116 Where the victim of a property loss or the first party insurer does attempt to shift the loss to another, in almost all cases it will be the law of torts that will be invoked for the purpose.

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Loss spreading and loss shifting 1.2.4 Insurance provides a mechanism for spreading the consequences of the injuries referred to at 1.1.1–1.1.9 and the even greater number of other losses that occur in our industrialised society. By spreading the loss from an individual victim to many who are exposed to a similar risk, the loss is more easily borne. As to accidents occurring at work, even in the absence of insurance, an employer is generally in a better position than an injured employee to spread the loss through the pricing of the goods or services the employer provides. It is possible, of course, that the price of the product will not be forced up; instead, wages or profits may be forced down. If the price is forced down, the loss is still spread, from the injured workers to all workers in the industry or to shareholders in the enterprise. If the employer does insure, the cost of the premiums will be built into the price and wage structure and the burden of any individual loss will be even further spread throughout the community. Thus an incapacitating injury that could otherwise render a breadwinner and family destitute is lightly borne as a tiny fraction of the cost of goods and services consumed by the whole of society. Similar reasoning applies in the case of products that cause harm because of defects in them or their use. However, the common law ignored the need to spread the cost of accidents. It saw, and often still sees, its function as loss shifting, not loss spreading. In determining which of the parties before the court should bear the loss, it often refuses to take account of the fact that one is more easily able to bear the burden than the other because that party carries insurance, even compulsorily: see, for instance, the judgment of Gleeson CJ in Imbree v McNeill 3.2.32C at [14]–[23]. While four of the other judges in this case simply ignored insurance, Kirby J gave lengthy reasons to show that the presence of insurance had influenced the way

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the law had developed and, at least where it was universal and compulsory, should affect the outcome in the particular circumstances of that case: at [106]–[112], [130]–[179]. He cited cases in England, New Zealand and Australia where insurance had been seen to be relevant. He also referred to many academic opinions on the point. One of these: … describes the overwhelming importance of insurers to the litigation system and argues that all cases are affected by insurance practice. It distinguishes the effect of insurance upon judicial fact finding, on the one hand, and the development of common law rules, on the other. It examines the ability of insurers to influence legislation relevant to the tort system. It concludes that, if account is taken of all these areas, insurance has been of vital importance to the law of tort. Without it, the system of personal injury compensation would not have survived.117

[page 25] 1.2.5 Recognising the realities does not always lead to liability. The existence and availability of insurance to plaintiffs sometimes induces courts not to impose liability on defendants: for example, Marc Rich & Co AG v Bishop Rock Marine Co Ltd (‘The Nicholas H’) [1996] AC 211 (HL) (liability on part of ship-classification societies would make it necessary to superimpose another layer of insurance on commercial arrangements between ship- and cargo-owners). As Lord Hoffmann said: The truth is that virtually all compensation is paid directly out of public or insurance funds and that through these channels the burden of compensation is spread across the whole community through an intricate series of economic links. Often, therefore, the sources of ‘third party benefits’ will not in reality be third parties at all. Their cost will also be borne by the community through taxation or increased prices for goods and services.118

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1.2.6 As we saw at 1.1.35, there is a view that increased tort liability has ‘foisted’ on the public increased (and, implicitly, unwarranted) costs. In Kinzett v McCourt (1999) 46 NSWLR 32 (CA) Spigelman CJ said: The judiciary cannot be indifferent to the economic consequences of its decisions. Insurance premiums for liability policies are, in substance, a form of taxation (sometimes compulsory but ubiquitous even when voluntary) imposed by the judiciary as an arm of the state. For many decades, there has been a seemingly inexorable increase in that form of taxation by a series of judicial decisions, on substantive and procedural law (at [97]).119

1.2.7 Whatever the merits of the view that liability insurance has become unaffordable,120 the common law formally drew a curtain over the loss spreading capabilities of the parties. It therefore had to choose between letting the loss lie where it fell, that is, on the plaintiff, or shifting it to the defendant. The loss shifting process may be seen as adding to the total cost of the accident, since it involves ‘the costs of administering the system of accident compensation, in terms of the processing of claims, the adjudication of disputes and the distribution of payments’.121 The additional costs may be no greater than the cost to the plaintiff of writing a letter plus the cost to the defendant of sending a cheque. More typically, they may include the cost of a detailed investigation of the circumstances of the accident by skilled assessors, physical examination of the plaintiff by specialist medical practitioners, legal services of barristers and solicitors, and, in a small number of cases, the time of judges and

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court officials. To warrant incurring these extra costs some good reason must be found. Whatever might have been the position much earlier (and legal historians are not unanimous in their views),122 the [page 26] catchcry of the late nineteenth and early twentieth century became ‘no liability without fault’. Unless the defendant was at fault in some way, the loss was to remain with the plaintiff. 1.2.8 This approach is well-illustrated by an American case from the middle of the nineteenth century. Dogs belonging to the plaintiff and the defendant respectively were fighting in the presence of their masters. In order to separate them, the defendant was beating them with a stick a little over a metre long. The struggling dogs caused the defendant to move backwards towards a spot to which the plaintiff had moved. With his back still towards the plaintiff, the defendant raised his stick over his shoulder in order to strike the dogs. Instead, he hit the plaintiff in the eye, causing him severe injury. In Brown v Kendall 6 Cush (60 Mass) 292 (1850) the Supreme Judicial Court of Massachusetts held: [T]he plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. … If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom (at 295–6; emphasis in the original).

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Note the circumstances. It was the sort of accident that could have happened at any time during the previous centuries. Indeed, just such a case had been postulated in argument by counsel (Brian) in the Case of the Thorns in 1466, though whether the conclusion for which he contended was even then good law has been doubted: [I]f a man makes an assault upon me and I cannot avoid him, and in my own defence I raise my stick to strike him, and a man is behind me and in raising my stick I wound him, in this case he shall have an action against me, and yet the raising of my stick to defend myself was lawful and I wounded him me invito [unwillingly] (quoted from C H S Fifoot, History and Sources of the Common Law, Stevens, London, 1949, p 196).

No technology was involved — no fast-moving vehicles or hurtling machinery. There was no question of anyone being insured or of any social security being available. It was a simple case of an unfortunate accident. One or the other of those two owners would have to bear the loss; either it had to be left to lie where it fell or it had to be shifted, so far as money could do it, to the one who raised the stick. In such a context, it is not surprising that the court should in effect have determined that the costs of shifting the loss from one innocent party to another who was equally innocent were not warranted, but that if it could be shown that the plaintiff was innocent, while the defendant was ‘in fault’, it was only just to make the defendant pay. At this stage we should remark that the concepts of ‘fault’ and ‘freedom from blame’ are not simple; in Chapter 3 we shall have to ask ourselves whether the law which holds the mentally ill and learner drivers to the standard of care of the reasonable competent

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person gives effect to the notion of justice inherent in the catchcry ‘no liability without fault’.123 1.2.9 Where the courts in the mid-nineteenth century went wrong was to apply the notion of ‘no liability without fault’ to the entirely different context of the industrial revolution. An illustration is provided by Readhead v Midland Railway Co (1869) LR 4 QB 379 (Ex Ch). A passenger was injured when the train carriage in which he was travelling was derailed owing to a latent defect in a tyre on one of the wheels. It could not be shown that the railway company should reasonably have detected [page 27] the defect in the tyre, nor was the defect attributable to any fault on the part of the manufacturer. The court held the railway company not liable. It said:

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[T]he duty to take due care, however widely construed, or however vigorously enforced, will not, as the present action seeks to do, subject the defendants to the plain injustice … of being compelled by the law to make reparation for a disaster arising from a latent defect in the machinery they are obliged to use, which no human skill or care could either have prevented or detected (at 393).

Later it was recognised that there is no ‘plain injustice’ in placing an economic incentive on those best able to do so to develop human skills so as to be able to detect and prevent such latent defects. The railway company is in such a position; its passengers are not. Furthermore, so long as defects are truly unpreventable, it is fairer that all passengers exposed to the risk bear a minute portion of the cost through increased fares than that individual passengers bear the burden of their own injuries. A modern parallel is to be found in the American case of Day v Trans-World Airlines Inc 528 F 2d 31 (1975). Both Readhead v Midland Railway and Day v Trans-World Airlines Inc were concerned with whether a carrier was to be held liable to passengers for injuries suffered by the passengers which the carriers could not themselves have prevented. In the modern case, a regime of strict liability (that is, liability without proof of fault) on the part of the carrier for accidents to passengers aboard aeroplanes had already been established by international agreement under the Warsaw Convention. The question for the court was whether that liability should be held to extend to passengers who were not aboard the plane when they were injured in a terrorist attack at an airport. In holding that it should, the court gave the following reasons: The airlines are in a position to distribute among all passengers what would otherwise be a crushing burden upon those few unfortunate enough to become ‘accident’ victims …. Equally important, this interpretation fosters the goal of accident prevention …. The airlines, in marked contrast to individual passengers, are in a better posture to persuade, pressure or, if need be, compensate airport managers to adopt more stringent security measures against terrorist attacks …. If necessary, the airlines can hire their own security guards. And, the companies operate under circumstances more conducive to investigating the conditions at the airports they regularly serve than do their passengers. Moreover, they can better assess the probabilities of accidents, and balance the reduction in risk to be gained by any given preventive

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measure against its cost. Finally, the administrative costs of the absolute liability system embodied in the Warsaw Convention … are dramatically lower than available alternatives. If Article 17 were not applicable, the passengers could recover — if at all — only by maintaining a costly suit in a foreign land against the operator of the airport. The expense and inconvenience of such litigation would be compounded by the need to prove fault and the requirements of extensive pre-trial investigation, travel and other factors too difficult to anticipate. Such litigation, moreover, would often unduly postpone payments urgently needed by the seriously injured victim or his surviving dependants (at 34).

Similar arguments for strict liability for adverse medical outcomes to be placed on the health care institution are advanced by the authors of the Harvard Medical Study of the New York hospital system.124 1.2.10 The difference of approach between the courts in Readhead v Midland Railway Co and Day v Trans-World Airlines Inc accords with a temporary change in judicial attitude which was noted by Lord Devlin. In a lecture delivered in 1975, this eminent judge discussed a case a century earlier. He observed that in River Wear Commissioners v Adamson (1877) 2 App Cas 743 (HL), the judges [page 28] interpreted a statute which, according to its natural meaning, imposed strict liability, so as to accord with the prevailing notion of fault liability. This interpretation, a century later, ‘split the High Court of Australia three to two’: Geelong Harbour Trust Commissioners v Gibbs, Bright & Co (1970) 122 CLR 504. Lord Devlin commented: Today we should have no difficulty with [the relevant section]. Its language fits in nicely with the new philosophy that negligence does not matter and that the statutory object in such a case is simply to make clear who is to take out the insurance policy.125

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Thirty years later, the pendulum had swung back: compare 1.1.35 and 1.2.6. ‘The insurance policy’ will not always be equally available to both parties, if one is available at all. 1.2.11 Not all nineteenth century judges were persuaded by the fault doctrine. Bramwell B was one who saw the force of economic arguments that the full cost of an activity should be attributed to that activity.126 In the same period when Readhead v Midland Railway Co 1.2.9 was decided, Rylands v Fletcher (1868) LR 3 HL 330 and Francis v Cockrell (1870) LR 5 QB 501 (Ex Ch) were also decided, in both of which defendants were held liable when the only fault was that of an independent contractor. Indeed, with the advent of the motor car, the application of Rylands v Fletcher very nearly led to strict liability on the part of the operator, without fault on the part of anyone, but the pervasive fault regime eventually prevailed.127 Although apart from exceptional instances, such as under Rylands v Fletcher, there was no liability for the acts of an independent contractor (Quarman v Burnett (1840) 6 M & W 499), the doctrine of vicarious liability was greatly expanded in relation to employees: see Chapter 17. Under this doctrine, one person was made liable for the acts of another in such a way that

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the law not only countenanced but encouraged the shifting of the loss from the innocent victim to the often equally innocent defendant, who most commonly was the employer of the person actually ‘at fault’. The development of vicarious liability by the courts themselves in recognition of the fact that the actual wrongdoer would seldom be worth suing stands in strong contrast to their overt non-recognition of insurance as a means of loss distribution. The explanation probably lies in the fact that vicarious liability came into the law long before the growth of liability insurance; by the time the latter became common most courts no longer regarded the common law as capable of creative growth, except marginally. 1.2.12 Whether or not this is the true explanation, vicarious liability, whereby one person not personally at fault is made responsible to pay the damages attributable to the wrong of another, allows for the distribution of losses among persons better able to bear them than either the victim or actual tortfeasor. Although at common law the actual tortfeasor is not exonerated — and indeed is sometimes (though more rarely today) subject to an action to reimburse the employer or the employer’s insurer (see 18.1.9–18.1.11) — the employer, with its ‘deeper pocket’, will be the more likely target of the plaintiff’s action. In theory, the employer can often pass on either the direct costs or the cost of the insurance premiums in the pricing of the goods and services. In this way, all those who benefit from the goods and services may be made to bear the costs which would otherwise fall on the victims. This may be seen as fair. It may also have the effect of reducing the overall level of injuries, since if the [page 29]

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true cost is reflected in the price of the product an incentive is provided for users to substitute safer alternatives, which should be cheaper: see 1.6.4. 1.2.13 More recently, this theory has been questioned. In some instances, the beneficiaries include many who do not directly use the goods and services and so cannot be made to pay for the benefit that they have received. For instance, the eradication of smallpox has benefited many people who have not themselves been vaccinated and who could not, through the pricing mechanism, have been made to contribute to the losses of some who might have been hurt. If the manufacturers of the vaccine had been made liable for adverse reactions suffered by, say, one in a million of those who were vaccinated, the cost of the vaccine might have had to rise to a level that would have made it uneconomic to vaccinate all who were exposed to the virus and its complete eradication might not have occurred. Those who had then contracted smallpox would not have been able to sue anyone, since their infection would be regarded as resulting from nature: compare P Huber, ‘Safety and the Second Best: The Hazards of Public Risk Management in the Courts’ (1985) 85 Col L Rev 277. In other words, the cheaper alternative may be more dangerous. Thus, in Australia the Industries Commission referred to the claim in Huber’s book, Liability: The Legal Revolution and its Consequences, Basic Books, New York, 1988, p 166, that holding manufacturers of ladders

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liable for virtually all injuries resulting from their use has in the United States increased the cost of ladders to such an extent that some people do not buy them and resort instead to more hazardous forms of climbing: Report on Product Liability, 1990, p 56. But this view is controversial: see, for example, M M Hager, ‘Civil Compensation and its Discontents: A Response to Huber’ (1990) 42 Stan L Rev 539.

3 CRITIQUE OF THE FAULT SYSTEM 1.3.1 Much of this book is devoted to examining the function of the law of torts in relation to accident compensation. Students will constantly be invited, as they progress through the material, to assess both the internal consistency of the rules they learn and the adequacy of those rules to perform the function that has been assigned to them. However, it is easy in doing so to lose the wood for the trees. In this section we want to take a broader perspective and look at how well the law of torts fulfils its assigned role in society generally. This has been done by many academics and government enquiries.128 1.3.2 To help students gain an understanding of what these authors and inquiries were criticising, we start by including a case from the 1960s that still exemplifies the common law method of assessing damages, though today the process has become a more sophisticated one. [page 30]

1.3.3C

Thurston v Todd

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[1965] NSWR 1158 Supreme Court of New South Wales [The plaintiff, at the age of nearly 16, was injured in a motor accident as a result of which she became a quadriplegic. Liability was admitted and the case came to trial on the assessment of damages. Counsel for the defendant submitted that, having regard to awards in other cases, the appropriate range for the damages was £35,000 to £50,000 ($70,000 to $100,000).] Asprey J: … Windeyer J, in Thatcher v Charles (1961) 104 CLR 57 at 76–7, has remarked that the principle that damages cannot be a perfect compensation does not mean that fair compensation is something less than complete compensation. In the words of Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25: Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should, as nearly as possible, get at that sum of money which will put the party which has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation (at 39). This statement of the general rule ‘has been consistently referred to or cited with approval, or restated in similar language’…. In Lee Transport Co Ltd v Watson (1940) 64 CLR 1, Dixon J reminded us that: no doubt it is right to remember that the purpose of damages for personal injuries is not to give perfect compensation for physical suffering …. But, while remembering that fair compensation between the parties is Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

what must be arrived at, it is equally important to keep in mind that after all it is compensatory (at 13–14). In Pamment v Pawelski (1949) 79 CLR 406, Dixon J after referring to the concept of a just and fair compensation, said: ‘A full compensation must nevertheless be awarded. It is compensation once for all …’ (410–11). There is … no inconsistency at all between the words of Lord Blackburn and of Dixon J … and the concept that compensation in personal injury cases should be fair and reasonable to the defendant as well as to the plaintiff. When one turns to the various headings of damage in this type of case, the sum of money included in the verdict for medical, hospital, nursing and the like expenses from date of accident to date of trial can be usually proved as a precise figure. If that figure is either admitted by a defendant or proved to the tribunal of fact’s satisfaction to be a figure for expenses which have been reasonably and properly incurred by a plaintiff for the treatment of the injuries sustained in the accident brought about by the defendant’s negligence, then to include that particular sum in the verdict is fair and reasonable to both the parties. The same observations would apply to the net earnings of a plaintiff up to the date of trial which are likewise either admitted or proved to have been lost by virtue of a reasonable and proper loss of time, or opportunity for work by reason of the accident. More trouble, however, is met with in relation to the sums to be included in the verdict in respect of those items of damage looking forward from the date of trial into the future. As Sellers LJ observed in Warren v King [1963] 3 All ER 521: ‘Future events have to be estimated, and there is of necessity no sufficient data to provide accuracy or certainty’ (at 527). Imponderable factors come into play when hindsight is not available; and there is frequently a conflict of evidence as to the extent of a reasonable requirement for future medical treatment, nursing attention and the like. In the same category will often be found damages for a loss of earning capacity for the future which may be claimed, either wholly or partially, for the rest of an estimated working life or for some shorter period, and when estimates of future earnings have to be taken into account in reduction of the claim under this heading …. Factors such as death from another accident or disease, illness, loss of employment by reason of economic conditions, which are described as the unfavourable vicissitudes, can interfere with the harmony of both life and the working life, and factors such as increased earning capacity and the like, the favourable vicissitudes, can counteract them …. However, in assessing damages under these headings some figures are usually provided by the evidence, for example, the cost of future operations, the period of the estimated working life and the

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[page 31] net earnings estimated on a weekly basis for that period; tables of present capitalised values of weekly sums are available; and, in appropriate cases, actuarial evidence can be utilised. But, despite the assistance which may be afforded through the use of mathematics, precision in assessment is in the great majority of cases quite impossible because the arithmetical numbers are being calculated in combination with the integers of the unknown. Accordingly, although many years ago the dramatist Charles Macklin, himself a litigant of experience, described the law as ‘a sort of hocus-pocus science’ and remarked upon its ‘glorious uncertainty’, I do not think that it should be deserving of blame in these circumstances so much as the unpredictable vagaries of human life and affairs. In these circumstances the principle to be applied, in the absence of the ability to be fair and reasonable by the fixation of a sum certain, is to be fair and reasonable to both the parties by arriving at a sum which, after taking due account of the particular facts proved in evidence, in its calculation pays heed to those factors which human experience has shown may affect its computation in the given case, gaining whatever assistance may be found in light of the type of previous awards to which I have referred above. It will follow from what I have said above that, when sums are being included in a verdict for damages under the headings of pain and suffering, loss of the capacity to enjoy life and for the infliction of physical injuries, spheres in which mathematics can play no part whatsoever and in which even the advantage of hindsight at the date of trial is often of no great assistance in the computation of a money sum, the principle that damages should be fair and reasonable to both plaintiff and defendant must have its strongest application; and it is in these areas of damage that there is room for the usual pattern of awards or the conventional figures, figures which are to a large extent arbitrary or artificial guides from truly comparable cases, to have greater operation. I propose in this case to proceed to the assessment of the damages in light of the principles which I have expressed above and being, as far as I can, fair and reasonable to both plaintiff and defendants …. The following are the items of damage as found by me:

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1. Medical, hospital and other out-of-pocket expenses to the date of trial (as agreed) 2. Cost of ‘Possum’ 3. Loss of expectation of life Cost of future nursing services (calculated at £55 per week for 4. 30 years) Cost of future medical, hospital and chemist expenses 5. (calculated at £2 10s per week for 30 years) 6. Cost of future laundry expenses 7. Loss of future earning capacity 8. Future maintenance, etc Damages for pain and suffering, physical injury and loss of the 9. capacity to enjoy life

£5750 600 750 40,535 1842 1000 1000 8000 10,000 £69,477

There will be a verdict entered for the plaintiff in the sum of £69,477 [$138,954] and judgment accordingly and I order that the defendant do pay that sum into court …. I cannot part with this case, without remarking that it is a matter of great regret to me that a tribunal, called upon to make awards of damages in cases such as the present, is not empowered by the law to deal with many aspects of the award of damages on a periodical basis and one which is subject to a right of review in the future. Without such powers, any tribunal, placed as I am in the present case, proceeds to its verdict in the dark, forced to speculate as best it can into the far, unknown future, and compelled, as events may well turn out, either within a brief period or at the end of a long span of years, to risk injustice to one party or the other.

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Notes 1.3.4 The defendant appealed: [1966] 1 NSWR 321 (CA). It was argued that the total verdict was in excess of the conventional pattern of awards in such cases. It was also contended, in particular, that the sums allowed under items 4 (cost of future nursing services for 30 years) and 8 (future maintenance, etc) were too high. However, the appeal was dismissed. [page 32] 1.3.5 On 8 May 1974, some 8 years later, the plaintiff’s mother wrote a letter which was published as App 6 to Vol 1 of the Report of the National Committee of Inquiry into Compensation and Rehabilitation in Australia, 1974 (the Woodhouse Committee report): It has been suggested that I write to you to acquaint you with the financial hardships suffered by young quadriplegic people who, instead of remaining in hospital at the expense of the community, are cared for at home at huge financial Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

cost to themselves and families without any governmental assistance. I quote the case of my daughter, Gillian Thurston, who was injured in a car accident over 10 years ago when she was 15 years of age. She suffered a C4 spinal injury [that is, at the fourth vertebra of the neck] and has since been completely confined to a wheelchair, being paralysed from the neck. She had an insurance compensation case and was awarded an annual amount of $5,720 to cover nursing expenses. The total amount of damages has been invested and at present returns a gross income of $10,514 but this is completely absorbed by nursing and medical expenses which amounted to $10,792 last year and with increased wages has already increased since. A convalescent home is not the solution for a young intelligent person such as my daughter. Since her accident she has gained an Arts degree from the University of New England by external studies, with the assistance of nurses and family who have been able to write her notes, obtain books from libraries, type her assignments and accompany her to residential schools which have been a compulsory part of the course. She now has a small part time job at Film Australia at Lindfield as a post production script writer for which she earns approximately $30 per week, which all has to be paid to the nurse who has to accompany her to help lift her in and out of the car as well as organise her work, give her drinks, toilet her when necessary and wheel her chair. By the time travelling expenses (sometimes by taxi if I am unable to drive them) are deducted nothing is left except the satisfaction of being part of the nation’s work force. Because she has assets she is not eligible for an invalid pension and none of the nursing expenses come off medical benefits. Because she is young she is unable to qualify for the domiciliary home care given to people over 65 years of age. In order to keep nursing expenses to a minimum I am personally looking after my daughter for seven hours each day without any nursing help and this, together with assisting with the lifting when nurses are present, is becoming increasingly difficult as I am a widow of 54 years of age. I am writing this letter to see if any financial assistance can be given so I can increase the wages paid to our nurses who could earn much more if they were employed in a hospital or clubs, and it is almost impossible to get them for what I can afford to pay them. I would greatly appreciate any consideration that can be given to enable my daughter to meet the continually increasing costs of providing necessary nursing attention which enables her to continue to lead a useful life at home and make available a bed for someone else in a hospital, without the fear of being left without sufficient means of support when I have died.

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Yours faithfully E O Martin.

J L R Davis, ‘Damages for Personal Injury and the Effect of Future Inflation’ (1982) 56 ALJ 168 at 174, reported that in December 1981, professional nursing care for Ms Thurston had had to be reduced to 6 hours a day for 5 days a week. This cost $24,000 per annum whereas the income from the damages award amounted to only $19,000 per annum. Mrs Martin, a widow of 62, herself cared for her daughter for 138 hours per week and had had to sell some of her own capital assets to make up for the shortfall in income. Advances in medical knowledge suggested that Ms Thurston might be expected still to require medical care for another 30 years. In fact she died in 1983. [page 33] 1.3.6 Thirty years after Asprey J regretted the lack of power to assess the damages periodically, another New South Wales judge spoke eloquently of the problem: The plaintiff … was gravely injured. He suffers from severe spastic quadriplegia, and a profound intellectual deficit. He cannot speak and communicates only by grunts or other sounds; he is wholly dependent on others; he will never work. This tragic state of affairs will persist for the rest of his life. There is no dispute about his injuries, nor the treatment he has received, nor the disabilities he suffers from, nor that he will always need 24 hour care.

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The issues are these: his life expectancy; what value should be placed on past services rendered to him by his father, and his step-mother; what regime of future care is reasonably required and how much it will cost; what loss in earning capacity he has suffered; general damages; out of pockets. These disputes must of course be determined on a once-andfor-all basis. Looking to the past is one thing; this causes no great difficulties. Looking to the future is an entirely different proposition. This case is a striking example of the need to reform the archaic laws which require the court to determine now and finally the money sums which are to be awarded as compensation for an assumed loss of earning capacity and to provide an adequate sum for future care. How is one to assess loss of earning capacity? Aged three and a half when injured and — naturally enough — without any information of his intellectual capacities or interests, the court is required to make a judgment about his future job prospects and earning capacity. The task needs only to be stated for it to be realised that this is not simply entering into an area of speculation, it is one of judicial guess-work. How can I assess how David would have developed intellectually, how well he would have done at school, whether he would have gone to university, what kind of career he might have pursued, what interests he might have developed, how well or poorly motivated he might have been, whether he would have pursued a professional career, as has been put on his behalf, or, any career at all. Yet, the court must proceed on the judicial fiction that it is capable of assessing a loss of earning capacity — to the age of 65 or so — for this young boy. This is a task that no man or woman on this planet could wisely discharge. The same may be said with even greater force about provision for his future care. Estimates as to his life expectancy vary, but even on the most conservative view, he could live into his fifth decade. On the plaintiff’s case, as put through one expert, he could — with proper care — see out pretty much the life-span of his uninjured peers. This would bring him to the sixth decade of the twenty-first century. How is the court to look so far into the future with any possibility of understanding the social conditions which will exist, the means of care available for someone such as the plaintiff in 20, 30 or 40 or more years’ time, or the costs of such care? It cannot. Each of these exercises — the determination of the loss of earning capacity and awarding a money sum to look after his future care — requires the court to assess the unassessable, to pronounce on the unpronounceable, to judge the unjudgeable. But that is what I am required by law to do, and what, to the best of my abilities, I will do (Mundy by his Tutor Mundy v Government Insurance Office of New South Wales (NSW SC, Spender AJ, 5 June 1995, unreported).

1.3.7 There are many criticisms of the common law of torts as a system of injury compensation. In an Appendix to its report in its inquiry into Disability Care and Support, the Productivity Commission stated:

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[P]ast Commission work129 and other studies and authors point to significant drawbacks of the common law as a desirable compensation mechanism for pain and suffering and income loss. It can discourage early and effective rehabilitation.

[page 34] It involves considerable frictional costs and long delay through the litigation process …. Lump sums may not be sufficient to meet people’s future income needs and can involve double-dipping through the social security system. People unable to identify an at-fault party have no coverage (other than through private insurance or the safety net). The negligent party does not usually fund payments for compensation under the common law. Rather the payments are funded by mandatory (or effectively) mandatory insurance. Given this, the effects of the common law on incentives for care are blunted. This is why the Commission sees some merit in re-considering the scope and place of the common law for compensation arising from personal injury. However, the issues are very complex and contested.130

In that reconsideration, the Commission considered sources such as those we referred to at 1.3.1. It also gathered information from the hundreds of submissions it received and its own Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

research. Consequently, its description of the Australian system is the most comprehensive study currently available. We set out below a heavily edited extract from Ch 17 of the report, even though its focus was on catastrophic injury and its main concern was to evaluate the common law against the no-fault system the Commission was proposing. Much of the criticism levelled at the common law is relevant across the board.131

Disability Care and Support: Inquiry Report Disability Care and Support: Inquiry Report

1.3.8E

Productivity Commission, Report No 54, Canberra, 2011, Ch 17 [Footnotes and citations have been omitted.] Key points There are a range of state and territory arrangements for insuring people for catastrophic injury, with coverage varying depending on the type of accident, its location and exact circumstances. There is little rationale for the striking differences across schemes. –

Only about half of people injured catastrophically will have access to some form of insurance — usually compulsory third party motor vehicle cover. – The other half rely on generally inadequate taxpayer-funded health and disability services — in most cases, for the rest of their life. Existing fault-based insurance arrangements for catastrophic injury do not meet people’s care costs efficiently. Legal costs can be substantial, and for the fraction of claims compensable through insurance, monies recovered often fall well short of meeting people’s lifetime needs. Fault-based systems are also problematic because: –

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– –

court outcomes are uncertain, people’s future needs are unpredictable and poorly captured by a once-and-forall lump sum, compensation is often delayed, and there is a risk that lump sums are mismanaged adversarial processes and delay may hamper effective recovery and health outcomes in the presence of insurance, especially with little focus on risk-rating for some causes of injury, the common law does not provide incentives for prudent behaviour by motorists and other parties. [page 35]

While no-fault arrangements reduce people’s freedom to the extent (some) common law rights are removed, they are likely to produce generally superior outcomes compared with fault-based common law systems. They: – – – – –

17.1

provide consistent coverage across injured parties according to injury related needs provide much more predictable and coordinated care and support over a person’s lifetime do not adversely affect people’s incentives to improve their functioning following an injury are likely to be more efficient currently perform no worse at deterring excessively risky behaviour, as despite the appearance of the common law, it is the insurer that pays. And although no-fault arrangements would probably not meet all people’s desire for ‘punishment’ of an at-fault party, there is no clear evidence that the common law achieves this either. Introduction

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There are many accidents resulting in injury each year in Australia, with over 50,000 for transport accidents alone …. Some injuries are ‘catastrophic’, resulting in substantial and permanent disability. For example, this could include delayed diagnosis of meningitis resulting in severe brain damage, quadriplegia from falling off a ladder, and an acquired brain injury from a motor vehicle accident or criminal assault. Various inconsistent and ostensibly arbitrarily different arrangements have evolved in each state and territory to provide insurance cover for people catastrophically injured. Systems broadly align with the cause of injury and, in terms of long term support for people with catastrophic injury, include: workers’ compensation schemes throughout Australia no-fault third-party motor vehicle insurance arrangements in the Northern Territory, Victoria, Tasmania and New South Wales and fault-based arrangements in other states and the ACT limited provision for people suffering disability because of violent crime (a rising source of catastrophic injury) fault-based medical indemnity and public liability insurance. There is little rationale for the striking differences between schemes. The practical consequence for people acquiring disability is that the amount, nature and timeliness of support depends on the type of accident, its exact circumstances and location. This can have very lasting impacts for people with catastrophic injury. In many cases, people rely on the common law to claim compensation, which will only succeed if they can identify a negligent and solvent first party as the cause of the accident (‘fault-based’ arrangements). How much compensation they get depends on the presence of insurance, the circumstances of the accident, the quality and cost of their legal representation, judicial interpretation of liability, the brinkmanship of the out of court settlement process, and the process for assessing damages. If a person is unable to pursue a common law claim, they must rely on publicly-funded health and disability services, which are often comparatively inadequate …. Fault-based systems only apply where there is an identifiable solvent party that can be found liable. … This chapter considers the strengths and weaknesses of common law versus no-fault insurance arrangements, particularly in relation to catastrophic injuries. … On average, a successful award under the common law for the lifetime care associated with a catastrophic level injury is around $1 to $2 million. Amounts tend to vary across claim types — averaging $1.1 million for a successful motor vehicle claim, $1.67 million for a medical negligence claim and $1.4 million for a general injury claim …. (To reflect current values, and adjusting for wage inflation in awards and superimposed inflation, it would be realistic to inflate these awards by around 30 per cent.) These common law awards are upper estimates of the funds that actually go to injured parties, as certain legal charges not recoverable from the defendant party are taken out of the final award. As discussed in section 17.10, these can be significant. …

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[page 36] 17.3

Criteria to assess injury insurance arrangements

… [A]s a practical reality, litigation arrangements for compensation are often subject to statutory limits and other rules (with such constraints growing after 2002 to secure the affordability of insurance systems …). 17.4

Certainty, timeliness and quality of lifetime care and support

As noted earlier, most catastrophic injuries involve lifelong disability, and hence, the need for lifelong care and support. In some cases, the common law can deliver adequate payouts that cover all of these costs. However, compensation outcomes from litigation typically fall well short of meeting people’s lifetime needs. This reflects that: court outcomes are uncertain and, by far, most people settle out of court people’s future needs are unpredictable, so that damages awarded at a given time may underestimate or overestimate people’s future needs compensation is often delayed and, particularly if liability is disputed, access to early treatments and appropriate discharge from hospital to medical and social rehabilitation can be delayed and poorly coordinated

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assumptions about discount rates play an important role in determining lump sum compensation, especially for payouts intended to last many decades, and while it is generally agreed that rates applied are too high, agreement is lacking about the ‘right’ discount rate lump sums may not be managed appropriately to meet long term needs, and there are inherent difficulties in managing preclusion periods for access to safety-net services, especially when it may be unrealistic to refuse essential care and support needs. Court outcomes are uncertain Judicial interpretation of liability, particularly judicial assessment and application of the principles of contributory negligence, proximity, causality and foreseeable risk, is unpredictable. Many see the ‘lottery’ nature of the common law as one of its key weaknesses, generating dissatisfaction among both claimants and defendants …. The high rate of outof-court settlements, in part, indicates an aversion of both sides to the inherent risks of going to trial, with settlement amounts broadly approximating the expected risks and benefits of a court hearing. Inconsistencies in judicial reasoning and interpretation of the individual circumstances of a case are frequently made evident through appeal processes, in which decisions are overturned between different levels of the judicial hierarchy based on different reasoning and interpretations of how legal precedent should be applied …. The calculation of damages also lacks clarity in some areas, such as accounting for gratuitous care, with the law in Australia not settled about the way particular heads of damages are quantified, with different case histories and methodological approaches holding precedent across jurisdictions. These judicial risks are a key motivation behind the use of mediation between the injured party and insurers to reach early settlement and avoid a court hearing. Assessing damages is an exercise in predicting the future Common law damages for personal injury are based on an estimate of incurred and predicted future costs directly related to the injury. Damages are assessed at a single point in time and, with few exceptions, the amount awarded is unable to be altered regardless of how wrong a prediction may prove to be. Even the best efforts of legal practitioners and the use of experts will involve errors due to the inherent uncertainties in predicting future outcomes and the cost of meeting needs related to an injury. As a result, it is likely that damages based on ‘sophisticated guesses’ by the courts and negotiating parties will prove inadequate to cover the full costs of injury. Alternatively, it might transpire that the damages awarded are surplus to actual injury related expenses and losses. … [I]n cases where: … the medical prognosis is that the full manifestations of a plaintiff’s injury will not be apparent for some years after [trial, the] once-and-for-all lump sum award is … a seemingly inadequate form of

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[page 37] compensation, because the task of translating the assumptions as to the future into the money figure to be awarded to a plaintiff as a single sum, is incapable of being performed with accuracy (Todorovic v Waller (1981) 150 CLR 403 at 457 per Aicken J). In particular, reflecting that damages are only recoverable for the additional costs associated with an injury, various assumptions are required about the situation of a person had they not been injured, compared with the situation of the person following the injury. This involves considerable speculation and potential inaccuracy about: the extent of recovery and resulting disability after the injury has stabilised life expectancy the availability of gratuitous care formal care needs and associated cost over the lifetime of the injured party the impact of the disability on the person’s lifetime earning capacity the future risk of a complication related to the injury (for example, the risk of epilepsy following brain damage) future advancements in medical science, surgeries and assistive technologies.

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To take account of these risks and uncertainties, in practice, damages are calculated by weighting the sum of money payable in the event that a risk materialises by the probability of that risk occurring — an expected value. For some general risks there is an adjustment (usually a reduction) for ‘contingencies’, such as to account for the possibility of future unemployment, sickness or death. To some extent, postponing the trial, settlement or final assessment of damages until more facts emerge, increases the capacity to predict future outcomes and reduces potential errors. However, delaying legal proceedings is one of the primary sources of dissatisfaction from the public and professionals with the tort system (and a major source of legal costs). It can hamper incentives to rehabilitate … and can limit early access to treatments, slow-stream rehabilitation and a transition to independence. … Some scope to vary damages awarded after trial can occur in a very small proportion of cases through appeal mechanisms. However, the facts covered at the date of the appeal must be relevant to the appeal, and the legal costs of revisiting a case can be high, hence eroding the potential gains from correcting damages. … In summary, common law regimes are not always effective at assessing the lifetime care and support needs of people with catastrophic injury, as compensation is determined at a snapshot in time even though needs (and costs) span many years or even decades into the future. … Delays Early resolution of successful claims and rejection of those lacking merit has been a central focus of reforms to legal processes and claims management. Avoiding reliance on courts (as a generally acknowledged slow, complex and costly way of dealing with disputes …) has seen a policy focus on ‘pre-action protocols’. Specific reforms have led to requirements for pre-litigation disclosure, case conferencing prior to the commencement of proceedings, exchange of offers, active use of cost orders to encourage early acceptance of reasonable offers and use of scale or fixed cost models for charging. The most obvious benefits of early resolution and reduced delays include: increased efficiency through a reduction in legal transactions costs shorter and less stressful litigation process for claimants and earlier attempts to mitigate permanent injury and other injury-related losses. early investigation of the facts (mutual evidence disclosure and third-party subpoenas), before recollections become ‘murky’.

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The main mechanism for early resolution of claims is out-of-court settlement. While not disputing the range of benefits listed above, several problems remain with settlement processes. In particular, faults in negotiation processes and the lack of a structured process for systematically assessing liability and damages mean that full compensation is unlikely to be achieved in most circumstances. … [page 38] Medical indemnity claims can be particularly difficult to resolve, with nearly 60 per cent of claims not finalised 2 years from the date of claim commencement, and 15 per cent of claims still not finalised more than 5 years after the claim was initiated …. These delays are in addition to the time that elapses between the date of the medical incident and when a claim is commenced — frequently over a decade. … On average, over the four year period from 2006–07 to 2010–11, the time between a motor vehicle accident occurring to the resolution of a common law claim for compensation under section 93 of the Victorian Transport Accident Compensation Act was 4 years and 4 months. Many TAC claims take significantly longer to resolve, with the top 10 percentile of claims averaging around 7.5 years following the date of the accident. Based on beneficiaries whose funds are administered by Victoria’s Senior Masters’ Office, the time between the accident and resolution of the claims was 6 years on average, and nearly 9 years for medical negligence claims. A significant period of time generally elapses between the date of the accident to when the application to commence a common law claim is received — on average, around 2.5 years for TAC claims. This initial delay, at least in part, reflects the unavoidable problem of medical stabilisation, particularly in cases of brain injury where a person’s injuries and extent of recovery can take years to become apparent. But, in some instances, the length of time before a writ is

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issued may also reflect a departure between a medical practitioner’s and solicitor’s opinion about how long it takes for an injury to stabilise. … Medical reports can help to crystallise knowledge about the state of an injured person’s condition, but these are also attributed as a source of delay, with a general reluctance of medical practitioners to participate, hence giving rise to a specific medico-legal industry with links to insurers and law firms. Moreover, there may be reasons why lawyers deliberately delay obtaining advice from medical experts … Application of a discount rate Injured people often need care and support over many subsequent years (and in cases of catastrophic injury, for the rest of a person’s life). The typical practice of courts awarding damages is to do so by providing a once-only lump sum. This includes damages for a range of losses, including losses expected to accrue into the future, such as the costs of care for the rest of a person’s life. To account for the financial return a lump sum can yield to a beneficiary from receiving the money in advance of when many expenses are actually incurred, courts apply a ‘discount’ rate to the stream of expected future costs. Apart from an assumed rate of investment return, the discount rate applied also takes account of expected inflation and tax provisions. The discount rate is a key driver of the adequacy of a lump sum, and indeed, whether or not the principle of indemnity — the payment of a benefit not greater or less than, but equivalent to the value of the losses actually suffered — is achieved. In the event that the discount rate applied is based on incorrect assumptions and set too high, the practical consequences for the ability of a beneficiary to fund even just their lifetime care costs depends on: the amount of damages awarded for other heads of damages (income and pain and suffering) and whether there is scope to ‘redirect’ these damages towards meeting future care costs whether there is a reduction for contributory negligence, such that the total amount of the lump sum may not be sufficient to meet lifetime care costs, and especially if the reduction for contributory negligence is high the period over which the discount rate is applied, with a discount rate applied over a large number of years having a marked effect on the amount the lump sum is reduced …. Catastrophic injuries are generally permanent and care and support needs long lived, hence people with these injuries are generally most affected. … The issue of a discount rate that is set ‘too high’ is uniquely a feature of lump sum damages. … Management of fixed lump sums by beneficiaries

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Lump sum payments have the advantage that a recipient can make their own choices about investment strategies and the desired liquidity of the funds. Beneficiaries taking responsibility for managing their lump sums themselves can also avoid some of the difficulties in getting cost-effective annuities … . More importantly, a recipient has the flexibility to consume their money in a way that best meets their preferences. Arguments underpinning this principle align with the value of self-directed funding …. However, there are some important differences, including: [page 39] the difficulty that many people may have in managing large amounts of money. Most recipients of lump sum damages lack experience in managing such large sums of money, and while financial advice can assist decisions, it is not a requirement. … exposure by vulnerable people to fraud by others, which may completely exhaust their lifetime disability funding. … people may face pressures to give money to relatives or make short-sighted decisions, such as gambling the money away. … –

previous surveys of how plaintiffs spend their money have revealed that lump sums are commonly spent quickly, discharging debts that have accumulated between the accident and the resolution of the claim on purchases of motor vehicles and household appliances, and occasionally paying the mortgage on a house …. While not all are necessarily inappropriate expenditures, it does mean that the capital sum remaining to generate a return and draw-on for ongoing expenses is less likely to be sufficient.

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–

in the same way that assessing damages under the common law is an exercise in predicting the future, so is an injured person’s predicament in choosing how to responsibly spend their lump sum for the duration of their remaining life. Even trustees of people with disability, who must scrutinise expenditures not knowing exactly how long the money must last or what a person’s future health status might be, struggle with this predicament …

The consequence of these problems (compounded by the difficulties in predicting the costs of lifetime care, and statutory limits on damages and discount rates) mean that lump sum amounts are often not adequate to meet longterm care and support costs. … It is somewhat odd that losses, such as monthly wage and costs of care that regularly have to be met, are compensated through one large payment intended to last an indefinite lifetime. … Avoiding double compensation is difficult and costly to administer Double compensation can occur in any instance when a person has access to a lump sum payment to cover some or all of their care and support costs and might also seek to access taxpayer-funded services. … State and territory governments variously impose measures to avoid double compensation — typically, lump sum preclusion periods and compensation recovery arrangements. These measures aim to prevent the costs of compensable injury from being shifted to taxpayers and, in turn, restrict an injured person from accessing both financial compensation and social welfare services and supports without contributing towards the value of these services. Rather than precluding people who obtain compensation altogether, such arrangements exist because a lump sum compensation payout, which is most frequently obtained as a negotiated settlement, typically: … does not specify what has been awarded or the amount awarded may not seem sufficient to support the person. In addition, the individual may be in need of urgent services even though it may be some years before their compensation claim can be resolved …. In practice, however, there are inherent difficulties in managing preclusion periods for access to safety-net services, especially when it may be unrealistic to refuse essential care and support needs in the not uncommon event that a person’s lump sum was insufficient or prematurely exhausted. … To the extent that consistent, fair and appropriate outcomes are pursued, considerable administrative effort and costs are incurred. … 17.5

Coverage of people acquiring a disability through a catastrophic injury

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By definition, full common law compensation for the losses associated with catastrophic injury only applies where an at-fault (provably negligent) first party (defendant) can be identified, damages are assessed accurately and there is no contributory negligence to reduce the amount of compensation the defendant is liable to pay. [page 40] A person acquiring a catastrophic injury but unable to establish another solvent party’s legal liability for the injury would generally not gain access to compensation under a fault-based common law system. This includes cases where: the accident was purely a matter of chance without any other party’s involvement. For example, a driver, their passengers or a pedestrian might sustain motor vehicle injuries from chance or blameless events outside the control of the driver — a car tyre blowing out, the driver suffering a heart attack or stroke, an oil slick on the road, an unexplained mechanical failure or an unavoidable collision with an animal darting across the vehicle’s path. In accidents more generally, a person may fall off a ladder after a strong unexpected gust of wind, or a swimmer may acquire a brain injury when submerged by a freak wave. Bad luck is common a person may make a mistake that anyone might make, but which results in their own catastrophic injury another person causes the accident but has nevertheless taken ‘reasonable’ care. For example, someone causing an accident that was blameless or inevitable (such as because they sneezed, had a heart attack or were bitten by an insect whilst driving) would be unlikely to be found negligent

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the injury arose out of a single vehicle accident and the injured driver was themself at fault, or alternatively, an accident took place in a person’s own home or private property, such as from falling off a ladder, falling from a horse, or rolling a four-wheel motor bike on a rural property. Consequently, the scope of cases that are non-compensable under the common law is very wide. Australia-wide, only about half of catastrophic injuries are compensated through insurance …. The proportion varies significantly across jurisdictions and depends crucially on whether a fault or no-fault insurance system is in place. Motor vehicle accidents Across Australia, it has been estimated that compulsory third party (CTP) insurance arrangements cover around twothirds of motor vehicle accidents resulting in a catastrophic injury …. Workplace accidents Workers compensation arrangements provide no-fault cover in all Australian jurisdictions, and hence, extend at least some no-fault benefits to 100 per cent of injured parties, but in some jurisdictions, care and support costs are not adequately provided for catastrophic injuries …. Residual common law rights for some heads of damage are available in all jurisdictions, except South Australia and the Northern Territory. Medical accidents Estimates show that catastrophic medical incidents attract some form of compensation in about 50 per cent of cases across Australia …. Access to benefits is managed entirely through litigation, though most claims are settled out of court. Cases are often not finalised for many years following the incident, or the initial discovery, that gave rise to the initiation of a claim. General accidents in the community or at home Cover for general injury, through either public liability insurance or private legal liability insurance (as tends to be included in home and contents general insurance policies), provides access to compensation for about 20 per cent of general injury claims. These claims are managed through the adversarial system, though recent tort law changes have limited the extent that people with less serious injuries can claim and the level of damages available. Criminal injuries

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Each jurisdiction has a taxpayer-funded criminal injury compensation scheme, recognising that the offender may not always be (sufficiently) solvent to pay damages …. [T]hey do not provide adequate levels of compensation for severe physical injury, …. [page 41] In summary Current coverage across the broad range of circumstances in which catastrophic accidents occur — from motor vehicle use, playing sport and various recreational activities, medical treatment and criminal assault — is patently inadequate. A person could acquire an identical disability from an accident in any of these contexts, and as such, there is a good rationale for equal insurance and access to care and supports. … 17.6

Impacts on recovery and health outcomes

A key goal of all insurance systems (common law, no-fault or social insurance) is to improve a person’s health and functioning following an injury. There are several conceptual grounds where adversarial fault-based systems could reduce the scope for such improvements (and might sometimes exacerbate problems):

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the size of a person’s award for compensation (and that of his or her lawyer) under the common law is dependent on the severity of the injury. The usual strong incentives for people to maximise recovery is undermined by an awareness that the greater the recovery, the lower the potential level of compensation. … litigation processes take time, are stressful, and accentuate a person’s preoccupation with the disabling aspects of an injury (psychosocial factors play a significant role in recovery.) no-fault insurance schemes directly seek to achieve better health and functioning by explicitly managing cases and consumption of services and supports to get better outcomes as fast as possible. At a broader level, no-fault schemes regularly survey their clients, are developing tools to measure and better understand how to improve client outcomes and progress. These are not the priority concerns of fault-based systems. … [C]ommon law processes for medical injury [have] the perverse effect of preventing disclosure of errors and risks in the health system, hindering efforts to improve safety and quality …. Not all agree about the potential for common law processes to lead to adverse health outcomes. … However, the weight of the evidence suggests adverse impacts of litigation. Certainly, there is no evidence that litigation produces better health and functioning outcomes than no-fault schemes, despite being more expensive on a case-by-case basis …. [I]f litigation is stressful for the person with an injury, it is likely also to be so for their support network. Equally, in some cases, the defendant may also suffer significantly from an adversarial approach — even if ultimately found not to have been at fault …. 17.7

People’s freedom

… [E]xtinguishing common law claims diminishes freedom of choice, which is often highly valued by people and can enable them to allocate resources to the spending areas that match their preferences and heterogeneous needs …. There are a number of counterarguments to the issues raised about the reduced freedom implied by the removal of common law rights. First, while freedom of choice has value, it has to be weighed up against any costs of fault-based systems and any advantages for the wellbeing of people through alternative insurance arrangements. … [I]t is not practical to remove a person’s right to taxpayer-funded supports if a person has exhausted their lump sum secured through litigation. In that case, successful litigants can free-ride on taxpayer-funded supports. Taxes are coercive mechanisms — people cannot choose to be taxed or not. So the freedom of choice exercised through the common law can entail loss of freedom for other people forced to subsidise it. … 17.8

The value of ‘justice’

Is it ‘just’ to compensate victims only?

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Many in the community might regard the common law as appropriately one-sided in its compensation arrangements, with justice being served by no compensation for the at-fault driver. [page 42] However, consider the most negligent of cases, say a highly intoxicated young man, driving an unregistered vehicle at speed who severely injures both himself and the innocent party. Most people would regard it as repugnant to leave the at-fault young man without any support (surgery, rehabilitation, a wheelchair), accepting the legitimacy of meeting some basic level of need for services. … [I]t is reasonable to expect the community would have limited appetite to restrict access to benefits for many instances of catastrophic injury … [T]he relevant point is that the common law would not be the only way of achieving such an end, if it were regarded as desirable. The principle of collective responsibility for the costs of injury has a long pedigree in attempts to integrate personal injury law with social welfare principles, and was strongly advocated in the Woodhouse Report (1967). This report continues to guide the remit and operating principles of the Accident Compensation Corporation in New Zealand, and recognised that injuries caused by accidents are often the result of a complex series of events, involving multiple causes and agents, and that personal choices are socially embedded. In particular, Woodhouse argued a parallel

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responsibility for accidents is shared between: … groups, networks, organisations, corporations and government agencies … Their success depends on social coordination, not just assertions of personal choices. … This recognises, for example, that a person may make a small ‘mistake’ that anyone might make (say a momentary slip in attention), but which results in the injury of another party. International empirical evidence suggests that it is common for ‘good’ drivers to make such mistakes, with the most common cause of accidents being carelessness and lack of attention, rather than reckless or deliberately aggressive driving …. Accordingly, looked at more closely, the common law does not appear to generally achieve a just discrimination between an at-fault and innocent party, in many cases because ‘fault’ lacks a moral dimension. That is, many injuries caused by a person deemed to be negligent (under the common law) are not always easily categorised into the ‘victim/perpetrator’ model. The ‘retributive’ function of the common law People suffering negligent injury from another party often want to punish that party through financial penalties — ‘making them pay’. In theory, the common law provides one avenue to do that by imposing a financial penalty on that party. … In practice, however, the capacity of the common law to ‘right wrongs’ is limited because of the role of the insurer. Indeed, the factors that generally reduce the capacity of the common law to create incentives for care also undermine the capacity of the common law to provide an avenue for retribution. And, the mechanisms that could effectively be used for retribution — criminal charges, deregistration of professionals, loss of licence — are available whether or not a common law fault-based system is in place. Moreover, as noted above, many cases involving common law negligence are the result of everyday common mistakes that anyone can make. … 17.9

Providing incentives for people to avoid injuries

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While many injuries are the result of pure accident, many could be prevented if people changed their behaviours. Poor occupational and health standards, substance abuse, dangerous driving, weak adherence to professional standards, faulty products and generally engaging in risky behaviours can cause injury to a person and to others. To the extent that a risk is observable and able to be changed, the goal of policy is to reduce the costs of people’s risky behaviours. For instance, although age and gender are statistical risk factors in causing road accidents, people cannot alter these specific characteristics. Even still, it may be possible to modify behaviour, such as decisions about vehicle type, including by discouraging the use of high powered motorbikes and heavily modified performance vehicles, having zero tolerance of alcohol consumption and requiring appropriate training. People are less likely to take account of the full costs of their risky behaviour when they are unaware or misinformed about the capacity to cause injury, and especially if the costs of injury are borne by others. Policy attempts to correct people’s incentives to take care, avoid risks and hence reduce injury. What level of policy [page 43] intervention is appropriate however, depends on how direct costs and benefits accrue from incremental changes in levels of safety, vis-à-vis the costs and benefits of some risk taking. (Achieving zero risk would be very costly and undesirable.) There are many policy approaches to increasing safety and reducing the likelihood of accidents, such as regulation; guidelines, protocols and standards; raising awareness; changing technologies; ‘naming and shaming’; fines, criminal prosecutions for breaches of laws and — relevant to this chapter — the deterrent effects of civil litigation. … The deterrent effects of litigation may arise in several ways. The direct monetary effect People causing injury to others may have to pay compensation — creating direct monetary incentives to avoid negligence. However, this argument has little relevance to common law cases involving serious injuries, since in most Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

instances the party at fault is covered by insurance. In theory, strong monetary deterrence against negligence would apply to cases in which an at-fault party is not insured. In that instance, the person would be liable to pay compensation personally. For example, this would arise in cases involving criminal injury or a negligent party driving an unregistered vehicle. (In the latter case, such people have significantly higher odds of being in an accident resulting in injury.) However, in most instances of injury caused by a person (as compared with a corporation), such people have no capacity to pay compensation anyway (‘judgment proof’), and so the apparent deterrence effect is absent. The reality is that the effective capacity to seek common law damages in personal injury goes hand in hand with the existence of insurance …, which in turn, blunts the deterrence effects claimed for the common law (especially when there is limited application of experience rating …). The insured still have some incentives to be careful Even where people insure against the majority of the monetary risks of civil litigation, insurers structure their policies to address moral hazard and ensure parties still have (at least some) incentives to take due care. … In the event of an accident in which a policyholder is at-fault and a common law claim against them is successful, they:

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may have to do certain things such as put in place risk mitigation strategies before being able to get insurance cover … will still have to pay a front-end deductible to their insurer may face higher risk-rated premiums in the future if they fall into a higher risk category (experience rating). In some cases, no insurer will cover them, and where insurance is mandatory …, this will often disqualify them from legally undertaking the activity that leads to the risks. For instance, a high-risk medical practitioner may not be covered to perform certain procedures, usually triggered by an unusually high number of claims against a practitioner. Of these, experience rating, and risk rating more generally, has the potential to have a significant effect on excessively risk-taking behaviours. … A potentially important difference relevant to experience rating between common law and no-fault systems is the nature of the information insurers are able to access about the inherent riskiness of a particular driver (or class of drivers). Under fault-based systems, court judgments or settlements reveal the extent of negligence and its costs for the injured party. … However, as discussed above, courts and settlements (which reflect the expected probability of success in the negotiated lump sum) are not a reliable basis for determining the appropriate level of compensation and the extent of fault. As such, it is doubtful, even in this theoretical world, that the common law would possess superior information for setting risk rated premiums. In any case, there are several practical reasons, some of them regulatory, why the impact of risk rating on moral hazard should not be exaggerated, …. In many instances, risk rating reflects the higher probabilities of accidents for broad groups of people with characteristics that they cannot change (like their age or gender). Deterrence primarily only works if it relates to [page 44] a risky trait that people can change, although it may work to the extent that it eliminates supply or consumption of a target group. For example, if a fully risk rated premium were applied to young male drivers, it is possible this group would defer the purchase of a vehicle or switch to a safer, lower performance vehicle to the extent that this would lower their CTP premium. There are transaction costs of setting risk-rated premiums that limit their effectiveness in reducing negligent behaviours. Many individual characteristics that might be highly relevant to risk are often not observable ex ante (such as drink or aggressive driving, or passive adherence to OHS standards in a workplace). Government[s] often place statutory limits on the potential for premiums to vary in accordance with efficient riskrating — especially if there is a negative impact on low income groups or the supply of certain activities …. In the case of medical indemnity, the Australian Government subsidises the insurance system to ensure premiums are not too

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high for certain groups of clinicians. Given these regulatory and budget measures, insurers do not set fully risk-rated premiums. In the motor vehicle area, the price effects of risk-rating and the imperfect monitoring of unregistered vehicles encourages the riskiest people with the most limited resources to (illegally) opt out of compulsory third party insurance. … [I]t is unlikely that fault-based systems address ex ante moral hazard better than no-fault systems. In some ways fault-based systems may even perform worse …. Other measures are more likely to provide effective deterrence In summary, there are three main reasons why fault-based systems are unlikely to strongly deter negligence compared with no-fault systems: people at fault who are not covered by insurance rarely have a capacity to pay compensation, significantly weakening any deterrent effects of the common law in personal injury for such people (who often tend to have the highest risks) by pooling risks, insurance reduces the extent to which an at-fault party bears the financial consequences of his or her action risk-rated insurance (including the use of experience rating) could theoretically provide incentives for care, but risk rating tends to be blunt and could, in any case, be applied in no-fault systems. Moreover, as noted earlier, the common law is only one tool in the armoury of policy measures that can encourage better injury mitigation, with the other tools being generally more efficient …. Recognising the muted capacity of common law deterrence in the context of compulsory third party insurance, some have suggested that the common law is not well equipped to deal with the broader concept of ‘accident prevention’, which requires ‘careful attention to environmental design, public education, group interaction, organisational cultures and political coordination. …’ That said, the common law is likely to have some deterrence effects in some cases. … The question is whether the size of that effect is sufficient to outweigh the costs of the common law fault-based systems. Given the costs described later … and the prospect of relatively weak deterrent effects, the answer is probably no. This was also the conclusion of Cane:

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There is a significant body of empirical research about the deterrent efficacy of the tort system, which can perhaps be summarised by saying that tort law has more deterrent effect in some contexts than others, but in no context does it deter as effectively as economic theory of tort law would suggest. … because there is considerable doubt about the deterrent efficacy of tort law, and given the availability of much cheaper compensation mechanisms, the conclusion that tort law is not worth what it costs is an attractive one …. 17.10

Efficiency and costs

All insurance systems entail costs beyond those of providing care and support and other forms of compensation to the injured party. In … fault-based systems, the insurers must meet the usual costs of any insurance business [page 45] (claims management, financial management and so on), but also face costs associated with their own legal expenses (and any obligations to pay external legal costs). Such costs are not necessarily wasteful, as at least some administrative ‘inputs’ are required to secure care and support for an injured person. However, an important policy question is the competing cost-effectiveness of faultbased versus no-fault systems. If one system can deliver equal or better services at lower costs, then the increment in costs in the other scheme can be seen as ‘waste’ in the sense that it diverts resources that could be used to help injured parties better (or to lower insurance imposts on people). …

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Administrative costs The available evidence from no-fault systems suggests relatively low administrative costs. … There is some evidence that fault-based systems have somewhat higher ratios of administrative costs to premiums, before counting any costs associated with explicit and implicit claims for legal and other litigation costs …. That raises the question of the size of those litigation costs since they are instrumental in determining the relative costeffectiveness of the competing schemes. What affects the size of litigation costs? The magnitude of litigation costs reflects many influences, including: the role of mediation, which reduces costs compared to a court hearing, since the major influence on total costs is the stage of settlement the duration of litigation. Some cases take several decades to resolve. Given that billable hour is the dominant method for charging, each additional six months a case takes to resolve was estimated to raise costs by 7 per cent … the complexity, novelty or difficulty of cases, which often need expert testimony; facts and expert evidence are often relied upon heavily to establish the circumstances of an accident and the legal liability of another party statutory limits on litigation (or its costs). Civil liability laws were changed in each jurisdiction in 2002, which among other changes, limited access to damages and the amount of damages awarded …. These changes are likely to have increased the costs of navigating a successful case through the now tighter legal structure … the negotiating muscle of the consumer, and in particular, differences between the plaintiff who consumes personal injury legal services at most once in their life, compared with the insurer (defendant), who repeatedly consumes these services and usually maintains in-house expertise. …

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Some estimates of legal costs While it is straightforward to identify the factors influencing litigation costs (including fees, disbursements and charges), enumeration of them is hamstrung by a paucity of systematic, publicly available information on legal fees and charges. … In attempting to evaluate the size and nature of solicitor-client fees and charges, the Commission was presented with numerous informed judgements but, in general, estimates were not substantiated by rigorous evidence. Overseas estimates can be informative, but are not necessarily detailed to inform policy judgements in an Australian setting …. The Commission was able to source some detailed estimates drawn from around 130 cases settled over the period 2009 to 2010 …. While not necessarily providing numerical estimates, some participants argued that the costs of litigation were very significant. For example, commenting on the inefficiency of the common law in managing access to benefits, the Medical Indemnity Protection Society suggests that the requirement to find legal negligence involves ‘an inefficient and time consuming process that dissipates resources which in our view could be better applied to outcomes rather than process.’ [page 46] While this view is intuitively reasonable, it is important to assess the actual evidence about the magnitude of the inefficiency. There is some evidence on the issue, but estimates of litigation costs are generally partial in nature. For instance: Avant Mutual … suggested that the party-party legal costs in a cerebral palsy claim would lie between $625,000 and $800,000 out of compensation package lying between $8.9 and $12.3 million, depending on the circumstances of the case. This is around 7 per cent of the compensation amount but this ignores solicitor-client costs (including any uplift fees). In Queensland, legal and investigation costs of plaintiffs and defendants for CTP insurance amounted to between 15 and 18 per cent of the claim payments on finalised claims on motor vehicle accidents from 2002–2010.

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The ABS estimated that legal fees for personal injuries in Australia were around $1.2 billion in 2007–08, comprising around $410 million for motor vehicle injuries, $350 million for workers’ compensation and $450 million for other injury claims …. Fees associated with ‘no-win, no-fee’ arrangements accounted for about 50 per cent of the total personal injury fees …. These estimates relate only to legal fees from businesses whose activity is mainly legal services. It would ignore legal costs in insurers or other businesses whose major function was not legal. … As mentioned, the Commission was able to obtain comprehensive detail on average solicitor-client costs and (the plaintiff’s) party-party legal costs from the Victorian Senior Master’s Office (SMO). This source of evidence covered all common law systems for securing compensation in Victoria ….. The client group of the Senior Master’s Office that legal cost information [was] derived from … predominantly have catastrophic-level injuries. … [L]ooking at the proportion of solicitor-client costs taken out of each beneficiary’s award, the coefficient of variation — or degree of dispersion from the average — is very large. The large spread in individual outcomes is observed even when calculated within different bands of compensation, and further supports the notion that common law compensation processes can be something of a ‘lottery’. … These estimates suggest a very wide variation in how individuals fare in terms of the performance and remuneration of their legal representation. To some extent, this may reflect differences in liability risks …. However, the size of legal costs [is] just one uncertainty at the end of a line of uncertainties (including the initial uncertainty about whether or not another party can be liable, and hence, whether compensation is payable at all) that individuals face when the risk of acquiring a catastrophic injury is realised. … The implications of costs Putting aside other heads of damage, insurance premiums to finance claims for lifetime care and support must cover four basic costs: (i) (ii) (iii)

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(iv)

the costs of lifetime supports for an injured person. … any costs associated with coordination of care and support. … the standard administrative costs of any insurer (including reinsurance, claims management, depreciation and so on). … any litigation costs (whether explicit in party-party form or implicit as a share of the compensation payouts). These are … significant in fault-based systems.

Table 17.4 [not included here] sets out the implications for efficiency of a fault-based system that has low coverage, some legal process costs, but no care coordination costs compared with a no-fault system that covers all claims and has some coordination costs, but that has no litigation costs. The table is illustrative, but the parameters underlying it are consistent with some of the estimates of costs provided to the Commission. … [T]he no-fault system can provide the same support and care services for 19 per cent lower costs than a fault system …. This is an underestimate of the real cost differential …. [page 47] The no-fault system can deliver nearly 33 per cent more services than the fault-based system for the same price …. (And for the same reasons given above, this will underestimate the real service advantage of the no-fault system.) While table 17.4 uses indicative numbers, even significant departures from the key underlying assumptions still suggest that a no-fault system is likely to be more efficient than a common law fault-based system. … 17.11

The performance of common law systems of fault-based compensation

… Overall, no-fault systems are likely to produce generally superior outcomes compared with fault-based systems. This assessment is consistent with the findings and recommendations of past official inquiries and reports that have Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

investigated the matter. These include: the 1967 New Zealand Royal Commission of Inquiry into Compensation for Personal Injury; the 1974 Australian National Rehabilitation and Compensation Committee of Inquiry; the 1981 New South Wales Law Reform Commission Inquiry into Compensation for Personal Injury and Death from Motor Vehicle Accidents; the 1986 Victorian Government Statement on Transport Accident Reform; and the 2004 Productivity Commission report on National Workers’ Compensation and Occupational Health and Safety Frameworks. …

Notes 1.3.9 The New South Wales Law Reform Commission inquiry, mentioned in the last paragraph of the above extract, recommended that the common law be replaced by a no-fault transport accidents scheme for New South Wales. The then Commonwealth Government saw the proposed scheme as a desirable model for adoption in all Australian jurisdictions. However, the scheme was never implemented in New South Wales. The Victorian Government attempted to enact a scheme similar to that recommended by the Commission, but without a majority in the upper house was compelled to compromise so as to allow common law actions to continue for victims of motor accidents who suffered ‘serious injury’. However, all victims of motor accidents in Victoria have been entitled to some compensation on a no-fault basis since 1974 and more generously since 1987, whereas New South Wales retained the common law fault requirement until the introduction of a very limited no-fault scheme in 2006–07. Despite its retention of the common law need to prove fault, the New South Wales scheme has long departed from attempting to provide ‘full compensation’, severely limiting the damages that may be recovered. As we discussed at 1.1.35, at the time of writing the New South Wales Government has again proposed reform of the New South Wales compulsory third party motor accident scheme to a predominantly no-fault defined benefits scheme with lump sum common law benefits retained only for serious injury.132

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Criminal law a more effective deterrent 1.3.10 Some evidence that the criminal law is likely to be a more effective deterrent than common law tort actions in relation to motor accidents can be gleaned from the history of seat belts. Although the efficacy of the wearing of belts in the reduction of the number and severity of injuries was clearly established in the 1960s, the fear of personal injury to oneself was insufficient to induce more than 20 per cent of occupants of motor cars to wear them. The establishment of a rule of the law of torts that failure to wear an available seat belt reduces the damages recoverable by the victim of an accident (see Froom v Butcher 6.2.58 and the comments at 6.2.58–6.2.59) had no discernible effect on the wearing rate in England. Yet in Australia, once the wearing of seat belts became compulsory, subject to [page 48] Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

a criminal penalty, the wearing rate went up to nearly 90 per cent. Psychologically, people are attuned to the attitude that ‘it won’t happen to me’ when contemplating a serious injury in a motor accident (although the same people might think they have a good chance of winning the lottery, in which their chances are in fact less than their chances of being involved in a motor accident); but the greater certainty of even a paltry fine proved effective to encourage them to adopt a simple measure which led to a dramatic reduction in the road toll in respect of occupants of vehicles.

Search for fault obscures real, remediable cause 1.3.11 The obsession of the common law with fault and the search for a culpable scapegoat often obscures the real cause of an accident, just as centuries ago the notion that the plague was a punishment for sins — which led to regulations prohibiting gambling, drinking, cursing and other ‘faulty’ behaviour likely to arouse the wrath of God — prevented the recognition of the need for physical rather than spiritual cleanliness: see E C Wigglesworth, ‘The Fault Doctrine and Injury Control’ (1978) 18 J of Trauma 789. If causes other than faulty human behaviour can be identified, often more effective steps can be taken to prevent accidents than attempting to change the faulty behaviour. In relation to motor accidents, a study for the United States Department of Transportation by D Klein and J A Waller, Causation, Culpability and Deterrence in Highway Crashes, 1970, included the following recommendation:

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Since personal culpability is rarely the sole cause of a crash, since it is virtually impossible to isolate in the complexity of contributing factors, and since, even when isolated, it is more difficult to modify than many of the other contributing factors, it is recommended that a very substantial proportion of the resources now devoted to the determination of individual culpability be diverted to the development of environmental modifications which would make human ‘error’ (both driver and pedestrian) less likely to occur and less severe in its consequences (p 214).

For instance, after a collision between two motor cars at an intersection controlled by traffic lights, lawyers will tend to be concerned with which of the two motorists ‘beat the red’, and may ignore the question of whether the luminosity of the globes was adequate in the conditions of visibility likely to obtain.133 For similar arguments in relation to adverse outcomes of medical treatment, see M M Mello and D M Studdert, ‘Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries’ (2008) 96 Georgetown LJ 599; Committee on Quality of Health Care in America, To Err Is Human: Building a Safer Health System, Institute of Medicine, Washington, DC, 1999. Lapses of attention which cause accidents may also occur. These lapses might not be ‘unreasonable’ given the inevitable tendency of all human beings to have cognitive limitations: see R Cooter and A Porat, ‘Lapses of Attention in Medical Malpractice and Road Accidents’ (2014) 15 Theoretical Inquiries in Law 329. For a metasurvey of the literature on the effectiveness of tort as a deterrent, see H Luntz, ‘Compensation Recovery and the National Disability Insurance Scheme’ (2013) 20 TLJ 153 at 186–206.

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Monetary compensation helps only individuals 1.3.12 Monetary compensation to individual victims is often far less effective in meeting their needs than other forms of expenditure, which at the same time benefit many people with a disability who have no form of legal redress. Building a ramp to provide wheelchair access to a concert hall or lecture theatre — or, better still, amending the building code so that all new buildings have to allow [page 49] such access — so as to enable all people with a disability, including accident victims, to enjoy the benefits of attendance at concerts and lectures, is far preferable to awarding monetary compensation to a few for deprivation of these amenities.134

4 OTHER COMPENSATION SCHEMES

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Workers’ compensation 1.4.1 As a result of the industrial revolution, the numbers of workers injured and killed increased enormously. During most of the nineteenth century, however, the law of torts in England made it virtually impossible for a successful action to be brought against employers: see 6.1.25. Towards the end of the century it was recognised that the employer was usually able to pass the costs of these accidents on to the persons who benefited from the goods and services provided, whereas the worker was not. Political agitation called for ‘the cost of the product to bear the blood of the workers’. Eventually a scheme for the compensation of injured workers was introduced by Bismarck in Germany. A few years later the Conservative Government in the United Kingdom, over strong opposition from the Liberals, enacted the Workmen’s Compensation Act 1897.135 The essential feature of the legislation was that it relieved the worker of any need to prove fault on the part of the employer or anyone else. Thus s 1(1) provided: If in any employment … personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall … be liable to pay compensation ….

There are now in force in Australia 11 main statutes that have their origin in that provision: one major one in each of the states and mainland territories, one covering Commonwealth government employees and employees of competing corporations who are licensed self-insurers, one for Australian Defence Force personnel since 2004 and one governing seafarers’ compensation.136 Although the original United Kingdom legislation was very limited, both as to the employment situations it covered and as to the benefits payable, and has since been replaced by a state-run social security scheme, the coverage and benefits in

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Australia steadily expanded from the early years of the twentieth century until the 1980s. A particular factor was the conversion to alternative conditions of the original dual requirement that the injury arise out of and occur in the course of the employment, so that it became sufficient if it either arose out of the employment (and so required a causal connection) or occurred in the course of the employment (making the connection merely a temporal one): see the dissenting judgments in Comcare v PVYW 1.4.4 at [73], [94]–[96] per Bell J, [115]– [123] per Gageler J. Thereafter, [page 50] there was a movement in some states to reduce the coverage and benefits. Despite the earlier expansion of coverage, many self-employed persons are not covered; workers who are within the scope of the legislation are not covered for injuries occurring during their leisure hours to which their work did not contribute; and, unlike the common law, the aim of the legislation in respect of those who are covered is not to restore them fully to the position that they would have been in if they had not been injured, but is merely to alleviate certain losses.

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1.4.2 As a result of the incomplete coverage of the legislation, numerous anomalous situations arise. Sometimes, the apparent contradiction between two decisions results from their having been decided at different times and is due only to the ‘widening, over the years, of the conception of what belongs to an employment’: Park v Peach [1967] VR 558 (FC) at 565 per Adam J. Other discrepancies in the treatment of similarly placed workers are due to the existence of differences among the statutes in the different jurisdictions. The following examples, in which in respect of each pair of hypothetical individuals the circumstances are assumed to be the same except for one differentiating fact, illustrate some of these anomalies: A and B are both injured in an explosion at a factory; A is employed there, while B is unemployed but has responded to an advertisement that jobs are available and is seeking work: A is covered; B is not. C, a council employee, is working by riding on a tractor to mow grass; D, a farmer, is working by riding on a tractor on the farm; in each case the tractor overturns and injures the rider: C is covered; D is not. E, riding in a bus, is on the way to work when the bus is involved in a collision; F, sitting next to E, intends to go shopping as it is a rostered day off: in some jurisdictions, E is covered; F is not. G is hit by a ball while playing cricket away from the place of employment during the lunch-hour; H is similarly injured whiling away time between shifts: G is covered; H may not be. K is the proprietor of a small business; L has formed a company and has entered into a contract of employment with it: K is not covered; but L is.

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The list could be extended almost endlessly.

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1.4.3 In Kavanagh v The Commonwealth (1960) 103 CLR 547, Windeyer J, in a dissenting judgment, sought to construe the relevant Act in accordance with the ‘generally recognised purpose of workers’ compensation law’, that is: … to require employers to pay compensation in respect of death or disablement that befalls a worker in consequence of his employment. Industry rather than the individual is thus made to bear the cost of the injuries and ailments it causes (at 586).

However, in Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30, his Honour acknowledged that the ‘lingering sense of the policy and purpose which led originally to the system of workers’ compensation’ (at 37) could no longer influence the interpretation of the modern statutes and that earlier doctrine must be drastically discarded. Once the link between the injury and the production process was broken, ‘workers’ compensation … developed into an elaborate but rather disordered system for social security benefits’: Report of the Board of Inquiry into Workers Compensation, Victoria, 1977, p 11. 1.4.4 In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, the High Court reformulated the test for what is ‘in the course of the employment’ so as to cover injuries sustained during an interval within the overall period of work if, expressly or impliedly, the employer has induced or encouraged the employee to spend the interval at a particular place or in a particular way, unless the

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[page 51] employee is guilty of gross misconduct. An employee in New South Wales who was selected to work in a remote part of Western Australia for a 60-hour week, possibly including Sundays, was held covered while on an excursion arranged by another employee on a nonworking Sunday. This reformulation led to decisions in which workers recovered compensation for injuries sustained in incidents even more remote from the original purposes of the legislation, but, as Gageler J observed in his dissenting judgment in Comcare v PVYW at [113], the decision stood for over 20 years, being part of the ‘[l]egislative refinement and judicial explication’ of the meaning of ‘in the course of the employment’ that had ‘given that meaning a relatively stable content’: at [110]. In one of its earlier reports, however, the Productivity Commission recommended that:137 … coverage for journeys to and from work not … be provided, on the basis of lack of employer control, availability of alternative cover in most instances and the ability to be dealt with under enterprise bargaining; and coverage for recess breaks and work-related events … be restricted, on the basis of lack of employer control, to those at workplaces and at employer sanctioned events (p 187).

Some state governments actively sought to reduce coverage in respect of activities, including journeys, over which employers have no control, and a majority of the High Court responded in Comcare v PVYW (2013) 250 CLR 246 by reinterpreting Hatzimanolis, so as to narrow the extent of the employer’s liability during intervals occurring in an overall period of

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work. The majority held that ‘for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs’: at [35]. In that case, a public servant on an overnight trip at the behest of her employer was injured by a hotel light fitting whilst having sex. In finding that the employee was not injured in the course of her employment (and consequently not entitled to workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth)), the majority held that: [F]or an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place. … Properly understood, whilst the inducement or encouragement by the employer may give rise to liability to compensation, it also operates as a limit on liability for injury sustained in an overall period of work (at [60], [61]).

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1.4.5 Eligibility for workers’ compensation hinges on three core criteria: (1) the claimant must fall within the category of ‘worker’ covered by the statute; (2) the claimant must have suffered the type of injury or disease covered; and (3) the injury or disease suffered must be appropriately connected to the employment.138 Variations among the different statutes are considerable, but the essence of all those originally enacted in Australia was that employers were made liable without any fault on their part and were required (in all cases except where their ability to meet a judgment was beyond question) to insure against such liability. Again, as with motor insurance, there was usually provision for a fund to meet the liability of any employer who had failed to fulfil the obligation to insure and was unable personally to pay the compensation. Later, in some jurisdictions, instead of employers being held liable, workers were given statutory rights to compensation from a state-run fund, to which employers are required to pay contributions in the form of levies. Most of the disputes that arise are dealt with by special dispute resolution agencies [page 52] or tribunals outside the ordinary court system, though they may be headed by a judge, with appeals to the Supreme Court usually restricted to questions of law. The multitude of claims made every year (see 1.1.3) lead to hundreds of applications to the tribunals each week, providing many lawyers with specialist employment in representing workers or employers or as members of the tribunals. 1.4.6 In Australia, following the United Kingdom precedent and contrary to the policy in the United States and Canada, workers were originally given an option, or ‘election’, between pursuing their rights to compensation under the statute and proceeding at common law. There were also provisions preventing actions against third parties who may have caused their injuries, once the workers had ‘recovered’ some compensation. These limitations, too, were

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steadily eroded, so that in many instances by the 1980s workers could often pursue the workers’ compensation remedy and proceed at common law simultaneously, though there were provisions designed to prevent any duplication of benefits. Starting in the Northern Territory in 1986 with the Work Health Act (now Return to Work Act 2015) s 52, there was a more recent move in Australia towards the North American model by either abolishing or severely restricting common law rights of action against employers and third parties. Political considerations have forced some governments to restore common law remedies, though usually in attenuated form. Where actions against employers have been abolished, there may be attempts to sue third parties, which Callinan J, while not seeing it as his function to question the legislative policy, clearly deprecated: Modbury Triangle Shopping Centre Pty Ltd v Anzil 7.5.16C at [120].

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1.4.7 The benefits payable under the different statutes vary greatly and are constantly being amended. The major categories are the following: Death benefits: These include funeral expenses and various payments to dependants (the persons eligible varying from jurisdiction to jurisdiction) of a lump sum or periodical amounts. Periodical payments for incapacity, whether total or partial: Periodical payments for total incapacity are in some cases equivalent to the full loss of wages, at least at the award rate, for limited periods; where this right is not statutory, it is often accorded by means of ‘make-up pay’ agreements between employers and employees under which the employers undertake to pay the difference between workers’ compensation and the average earnings of the worker, for example, the award under consideration in Ex parte Master Builders’ Association of New South Wales [1971] 1 NSWLR 655 (CA). In certain circumstances future periodical payments may be redeemed by payment of a lump sum. Medical and similar expenses, including such things as the cost of artificial limbs: Medicare payments have to be reimbursed to the Commonwealth by the workers’ compensation insurers: Health and Other Services (Compensation) Act 1995 (Cth). Treatment in hospital of compensable patients falls outside the scope of the National Healthcare Agreement between the Commonwealth and each state and territory, so that the cost burden falls on the employers. Only comparatively recently has express provision been made for expenses connected with rehabilitation. Lump sum payments for permanent whole-person impairment and injuries listed in a ‘table of maims’ in each statute: According to Fry v Jenkins [1955] VLR 184 (FC), these were ‘a purely Australasian departure from the general plan of the English legislation which otherwise formed the model for the statutes of all the Australian States and New Zealand’, the ‘first country to adopt such a scheme [being] New Zealand in 1908’: at 187. Such payments are also to be found in America, where the original intention was to provide conclusive evidence of loss of earning capacity in cases of obvious anatomical injuries (see A Larson, ‘The Wage-Loss Principle in Workers’ Compensation’ (1980) 6 Wm Mitchell L Rev 501), which is the purpose ascribed in the New Zealand case quoted

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in Fry v Jenkins at 191. [page 53]

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Thus, the benefits are payable even where there is no actual loss of earnings or earning capacity. They are anomalous in that they take no account of the worker’s age or other individual circumstances, the amounts vary from jurisdiction to jurisdiction and there are sometimes more serious injuries for which little or no compensation is payable because they do not fit into any of the listed categories, or attract low impairment ratings. Permanent impairment is assessed under medical guides, usually based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which were not devised for this purpose and have been much criticised: see, for example, Comcare v Fiedler (2001) 115 FCR 328 (FC); P Mulvany and N Horner, ‘The Use and Abuse of the American Association Guides in Accident Compensation Schemes’ (1998) 6 JLM 136. Today, lump sums can be seen, not as providing compensation for conclusively presumed loss of earning capacity, but as the equivalent of common law damages for pain and suffering and loss of amenities: see Haines v Bendall (1991) 172 CLR 60. Occasionally, separate sums may be payable as compensation for pain and suffering, as under the former Workers Compensation Act 1987 (NSW) s 67 (now repealed). 1.4.8 If a worker who has received compensation does recover damages at common law from a third party, the employer or statutory fund is usually entitled to a refund of the compensation paid or part thereof. Alternatively, the employer or statutory fund may claim an indemnity from the third party who is liable to the worker. Where it is the employer itself which is liable at common law, the damages payable will be reduced by compensation payments made. A worker injured, say, in a traffic crash in the course of the employment may be content to claim workers’ compensation benefits, but the employer’s insurer — under the doctrine of subrogation — may then bring an action in the name of the employer against the other motorist. In reality, of course, the defendant to that action is the other motorist’s compulsory third party insurer. Which of the two insurers ultimately bears the amount of the claim depends on whether the motorist was liable to the worker, which turns on common law tort rules devised to do justice between two individuals. The insurance context was completely ignored by Barwick CJ in Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321, when he said: ‘There is obvious and necessary justice in giving the employer, who has been involved in the payment of compensation by the wrongful act of another, a right of recovery against that other …’: at 326. The expenses of litigation to determine which party was legally to blame must be included in the premiums to be charged by the respective insurers, to the ultimate cost of the community as a whole. Particular difficulty has arisen in interpreting the relevant New South Wales provision.139 If the worker sues the third party where the employer would also be liable to pay damages, the policy of this legislation is to ensure that

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the worker does not recover more damages than the reduced damages that would be recoverable in an action against the employer, so creating a perverse incentive for the worker to argue that the employer was not or was minimally liable: see, for example, Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [50] per Basten JA. 1.4.9 Increases in the cost of workers’ compensation and its associated common law actions have led governments throughout Australia to establish numerous enquiries into workers’ compensation. In different jurisdictions these have led in varying degrees to greater emphasis on prevention of accidents and rehabilitation; to administrative savings through the replacement of private insurers with statutory funds; to the abolition or limitation of common law actions; to reductions in the benefits payable; and to abolition of coverage for injuries sustained during journeys to and from work. [page 54]

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No-fault motor accident insurance 1.4.10 The compulsory motor vehicle insurance schemes established in all Australian jurisdictions required that persons injured in road crashes, in order to obtain access to the funds, had to prove that the drivers or owners of the vehicle involved were liable to them. In the case of a road crash, this always requires proof of fault on the part of someone. Given that there are insurance funds compulsorily brought into existence because of the hazardous nature of motoring, it becomes very difficult to see why access to those funds should be limited to those victims who can prove fault. If A is standing on the footpath when run down by motorist B, and C is standing on another footpath when run down by motorist D, why should A theoretically receive full compensation from those insurance funds because it can be proved that B negligently lost control of the vehicle, whereas C receives nothing from those funds because D suffered a sudden unexpected heart attack? Considerations such as these, and the analogy of workers’ compensation, have for over 80 years led numerous writers to advocate a system of no-fault compensation for road crashes. 1.4.11 The first Australian state to enact legislation on the point was Victoria, where the Motor Accidents Act 1973 (Vic) brought limited no-fault motor accident benefits from 12 February 1974. This was much expanded from 1 January 1987 by the Transport Accident Act 1986 (Vic). Tasmania introduced its own scheme from 1 December 1974 with the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas). A scheme came into operation on 1 July 1979 in the Northern Territory: Motor Accidents (Compensation) Act 1979 (NT). Starting in 2006, New South Wales began to introduce its own no-fault scheme for four different sets of circumstances: Motor Accidents (Lifetime Care and Support) Act 2006 (NSW); Motor Accidents Compensation Amendment Act 2006 (NSW). From 2013, other states and territories followed suit in establishing no-fault schemes for catastrophic

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injury: see 1.4.32. 1.4.12 No-fault motor accident schemes — proposed and operational — are of various types: see J O’Connell, ‘Operation of No-Fault Auto Laws: A Survey of the Surveys’ (1977) 56 Neb L Rev 23; B Chapman and M J Trebilcock, ‘Making Hard Social Choices: Lessons from the Auto Accident Compensation Debate’ (1992) 44 Rutgers L Rev 797. The schemes operating in Australia are of different types. They all apply to motor accidents, though the relevant definition in each jurisdiction of a ‘motor accident’ differs.140 They generally cover anyone injured in such an accident within the respective state, though in Tasmania the nofault benefits are payable to non-residents only if a Tasmanian registered vehicle is involved and in New South Wales the ‘special entitlements’ available to children apply only to children who are also resident in the state at the time of the accident.141 The Victorian, Tasmanian and Northern Territory schemes also apply to residents of the respective jurisdictions injured outside the jurisdiction in question if a vehicle registered in the jurisdiction is involved. The Victorian scheme also covers non-residents injured outside Victoria if they were in a Victorian registered vehicle at the time. 1.4.13 Apart from the Northern Territory scheme in its application to accidents within the territory, all the schemes permit common law actions, subject to various thresholds and caps, to continue. They are therefore subject to the same criticism as made at 1.3.7. Admittedly, our pedestrians A and C are treated on a basis of equality in respect of no-fault benefits; but if able to overcome any relevant threshold and prove negligence, A is still entitled, by virtue of the common law action, to greater [page 55]

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compensation from the compulsory insurance funds than is C, who cannot prove fault. We shall look briefly at the scheme in each of the four Australian jurisdictions.

Victoria 1.4.14 The scheme first introduced in Victoria was a pure ‘add-on’ scheme, with very limited no-fault benefits and unrestricted access to common law. In 1986, the then state government moved to replace it with a pure no-fault scheme, based on that recommended by the New South Wales Law Reform Commission (see 1.3.9): see Victoria, Transport Accident Compensation Reform: Government Statement, 1986. The proposal was frustrated by the lack of a government majority in the upper house of parliament. As a result of a political compromise (see Humphries v Poljak [1992] 2 VR 129 (AD) at 131), the no-fault benefits for some injuries were limited as compared to what had been proposed and the right to sue at common law was retained for those whose injury could be classified as ‘serious’. Restrictions were placed on the damages that could be recovered in surviving common law actions:

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Transport Accident Act 1986 (Vic) s 93. The scheme became a ‘modified’ no-fault one, in which a ‘threshold’ has to be surmounted before a common law action may be pursued. That threshold is automatically overcome if the injured person is assessed as being impaired to the extent of 30 per cent or more of the whole person according to the American Medical Association’s Guides to the Evaluation of Permanent Impairment as modified by the Act. An injured person who falls below the 30 per cent threshold may still sue if the Transport Accident Commission, the body which administers the scheme, issues a certificate that the person is seriously injured or if a court gives leave to sue on the ground that it is satisfied that the person has suffered a ‘serious injury’. Although the Act contains a definition of ‘serious injury’ (s 93(17)), the courts have, not surprisingly, had difficulty in interpreting it: see, for example, Mobilio v Balliotis [1998] 3 VR 833 (CA); J Taliadoros, ‘A Way through the Dark and Thorny Thickets? The Adjudication of “Serious Injury” under the Narrative Tests in the Transport Accident Act 1986 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)’ (2015) 23 JLM 243. Particular difficulty arises from the need to distinguish between the physical and mental consequences of the injury (see Transport Accident Commission (TAC) v Kamel [2011] VSCA 110) and to separate the consequences of the relevant accident from pre-existing injuries (Grace v Elmasri (2009) 53 MVR 309 (Vic CA)). 1.4.15 The Transport Accident Act 1986 (Vic) specifies that a person who is injured as a result of a ‘transport accident’ is entitled to compensation: s 35(1). Initially, the definition of ‘transport accident’ was based on the fairly standard older Australian formula for compulsory coverage of third party liability. In the context of compulsory third party motor vehicle insurance, the phrase ‘caused by or arising out of the use of a motor vehicle’ was interpreted widely by the courts: see 1.1.27. Similar generous interpretation of the phrase in the present context142 led to legislative contraction of the coverage. The interpretation given to an initial attempt at a narrower definition (see, for example, Transport Accident Commission v Treloar [1992] 1 VR 447 (AD); Transport Accident Commission v Jewell [1995] 1 VR 300 (AD)), too, was apparently seen by the legislature as overly generous. It then enacted a definition that required that the accident be ‘directly caused by the driving’. Further problems, particularly in relation to collisions between pedal cycles and parked vehicles, led to the present detailed definition of ‘transport accident’: s 3(1), (1A). 1.4.16 Unlike the insurers who for many years administered the compulsory third party motor vehicle insurance system based on the common law, the body administering the nofault scheme in Victoria — initially the Motor Accidents Board; subsequently its successor, the Transport Accident Commission — has been prominent in: [page 56] establishing hospital and other facilities for the treatment of victims of motor accidents Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

during the acute and immediately post-acute stages of their injuries; providing rehabilitation services; and undertaking safety measures — notably, graphic television advertisements based on slogans such as ‘If you drink then drive, you’re a bloody idiot’; the provision of ‘booze buses’ (vehicles equipped to perform random breath tests) and speed cameras; and the elimination of ‘accident black spots’ (sites of multiple accidents which may have been contributed to by bad road design).

Tasmania 1.4.17 Like the Victorian scheme in its first dozen years, the scheme introduced in Tasmania by the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) is an addon scheme. Access to the common law is unrestricted, though most benefits cease if a judgment for damages is obtained and payments already made reduce the damages: s 27. An exception is made for benefits for daily care; where the court certifies that such care will be needed, no damages may be awarded for such care, but the benefits under the scheme continue: s 27A. 1.4.18 The Tasmanian scheme has also narrowed the coverage from death or bodily injury resulting from an accident, being ‘an occurrence caused by or arising out of the use of a motor vehicle’, to the present definition: Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 23(2B). Furthermore, the injury must arise ‘directly’ from the motor accident: s 23(1). As elsewhere, the earlier phrase gave rise to dispute and expansive judicial interpretation: for example, Motor Accidents Insurance Board v Haines (1995) 21 MVR 489 (Tas SC) (claimant fell as he was standing on step of truck to take something out of cab).

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Northern Territory 1.4.19 The Northern Territory scheme also confines benefits to persons injured ‘directly’ from motor accidents: Motor Accidents (Compensation) Act 1979 (NT) s 4A. The no-fault benefits are the sole remedy available in respect of motor accidents within the territory, the common law action having been abolished entirely: s 5. Different forms of illegal conduct exclude injured people from all, some or part of the no-fault benefits: ss 9–11. Territory residents injured outside the territory may elect between benefits under the scheme and common law action under the law of the jurisdiction where the accident occurred: s 7(3).

New South Wales 1.4.20 The four types of no-fault benefits available in New South Wales are provided for by the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and the Motor Accidents Compensation Act 1999 (NSW) Pt 1.2 Divs 1, 2, Pt 3.2. First, payments up to a limit of $5000 are available under Pt 3.2 to persons injured in motor accidents for treatment

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expenses and lost earnings: ss 48, 51. Second, people who suffer ‘catastrophic’ injuries in motor accidents in the state are eligible to participate in a scheme for lifetime care and support administered by the Lifetime Care and Support Authority of New South Wales. The scheme guidelines specify the eligibility criteria and mechanisms for resolving disputes about participation.143 The scheme commenced for children injured in accidents from 1 October 2006 and for adults a year later. Participation in the scheme does not preclude a [page 57] common law action for damages, but if an award of damages or binding settlement provides for such care, eligibility for the scheme ceases: Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) s 7(3); on the other hand, damages may not be awarded for the costs of services provided by the scheme: Motor Accidents Compensation Act 1999 (NSW) s 141A.

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1.4.21 Third, the Motor Accidents Compensation Act 1999 (NSW) Pt 1.2 Div 1 provides for recovery of damages by persons injured in ‘blameless motor accidents’. These are motor accidents ‘not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person’: s 7A. ‘Fault’ is defined as meaning ‘negligence or any other tort’: s 3. In such accidents, since there is no negligence or any other tort committed by the owner or driver in the use or operation of the vehicle, nor by any other person, the victim would ordinarily not be able to sue anyone. The statute, however, creates a liability by deeming a blameless motor accident ‘to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle’: s 7B(1). In an action by the injured person, the mere assertion that it was a blameless accident is sufficient to trigger the presumption: s 7C. Drivers who caused the accident themselves are excluded: s 7E. Contributory negligence may reduce the damages recoverable by plaintiffs in such blameless accidents: s 7F.144 1.4.22 Finally, ‘special entitlements’ are recoverable under Pt 1.2 Div 2 by children under 16 resident in the state whether or not someone was at fault. Essentially they are for hospital, medical, rehabilitation and care expenses: s 7J(3). There is an exclusion if the child was engaged in an offence punishable by 6 months’ imprisonment which contributed materially to the injury: s 7K. These special entitlements may not be reduced for contributory negligence when the child recovers damages from the driver or owner, whether the driver or owner was at fault (s 7L) or it was a blameless motor accident: s 7P(2).

Criminal injuries compensation 1.4.23 In 2014–15, injuries sustained as a result of assaults were the cause of more than 20,000 hospital admissions in Australia.145 If such injuries arise out of or in the course of the victim’s employment, they may still be compensated under the workers’ compensation

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legislation: Weston v Great Boulder Gold Mines Ltd 1.4.3, following Trim Joint District School v Kelly [1914] AC 667 (HL); see also 1.4.4. A common law remedy would theoretically also be available against the assailants personally, but here there is usually no liability insurance cover available (unless a motor vehicle was used as a weapon: see Lamb v Cotogno 8.1.14C and Gray v Motor Accident Commission 8.1.18) and such persons would seldom be worth suing. Yet, for some reason,146 the sympathy of the state seems more readily evoked for the victims of violent conduct than for other equally needy victims. All Australian jurisdictions have established systems to pay compensation to the victims of criminal violence, though only up to very modest levels.147 As noted by the Productivity Commission 1.3.8E, compensation [page 58]

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from such schemes is woefully inadequate to provide for the long-term care and support needs of people who are catastrophically injured by others.148 Such statutes will not necessarily be liberally interpreted: see, for example, Victims Compensation Fund Corp v Brown (2003) 201 ALR 260. Unlike in the case of workers’ compensation, no-fault motor accident schemes and product liability, there are no obvious ‘beneficiaries’ of criminal conduct who can be made to pay for the costs they impose on others, although some jurisdictions have sought to recoup some of their expenditure through the allocation of a part of fines collected to the compensation fund. The power to award compensation from state funds is in some jurisdictions given to the criminal court convicting the assailant, though usually victims may apply also where the assailant cannot be found or is not guilty owing to criminal incapacity. Sometimes, a separate tribunal is set up for this purpose. Once again there is a problem of defining which acts fall within and which outside the scope of the scheme: for example, does someone committing suicide by placing themselves in the path of a train entitle an onlooker to criminal injuries compensation for nervous shock?

Other particular compensation schemes 1.4.24 In addition to the schemes thus far mentioned, there are a number of other statutes and schemes that might affect the compensation payable to persons injured in particular circumstances. It is not proposed to discuss any of these in depth, but merely to mention a few examples. For instance, where a person is injured or killed in an aircraft accident, compensation may be governed exclusively by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) or its state equivalents, giving effect to or incorporating into Australian domestic law (with modifications) a series of international conventions.149 But the development of deep vein thrombosis during a flight does not constitute an ‘accident’ for the purposes of these conventions and the victims are left remediless: Povey v Qantas Airways Ltd 15.1.6. Special schemes have also been established for casual fire fighters: see Country Fire Authority

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Act 1958 (Vic) Pt V. Sportspersons have been removed from the coverage of the workers’ compensation Acts, but New South Wales alone has made provision for a special scheme for them: Sporting Injuries Insurance Act 1978 (NSW). In recent years, several further schemes have been established to compensate specific groups of injured persons. One example is the Asbestos Injuries Compensation Fund, established as a result of a 2005 agreement between the New South Wales Government and James Hardie Industries to ensure compensation would be available to people with asbestosrelated disease where James Hardie or its subsidiaries are liable at common law or under statute. The underfunding and perilous financial position of the scheme have periodically led to concerns about a funding shortfall affecting claimants, and required the New South Wales Government to extend a loan facility to the fund.150 Stolen Generations compensation or reparations schemes were established in Tasmania in 2006151 [page 59] and in South Australia in 2016,152 with the New South Wales Government announcing plans for a similar scheme. Finally, the Royal Commission into Institutional Responses to Child Sexual Abuse recommended the establishment of a single national redress scheme for abuse survivors,153 though it is not yet clear what final form such a scheme might take. The total picture is one of great confusion for an injured person, who may have rights under the Commonwealth social security legislation, workers’ compensation, no-fault motor accident compensation, criminal injuries compensation or some special scheme, as well as common law rights supplemented by compulsory or voluntary liability insurance.

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Comprehensive accident compensation schemes 1.4.25 In perhaps the darkest days of the Second World War, a farseeing British Government, concerned with problems of post-war reconstruction, appointed an interdepartmental committee to review existing schemes of social insurance and allied services, including workers’ compensation. The resulting report from Sir William Beveridge provided the foundation for the modern welfare state which was put into place after the war ended. In his report, Beveridge said this: The pioneer system of social security in Britain [that is, workers’ compensation] was based on a wrong principle and has been dominated by a wrong outlook. It allows claims to be settled by bargaining between unequal parties, permits payment of socially wasteful lump sums instead of pensions in cases of serious incapacity, … and over part of the field … it relies on expensive private insurance. There should be no hesitation in making provision for the results of industrial accident and disease in future not by a continuance of the present system of individual employer’s liability, but as one branch of a unified Plan for Social Security. If the matter were now being considered in a clear field, it might well be argued that the general principle of a flat rate of compensation for interruption of earnings adopted for all other forms of interruption, should be applied also without reserve or qualification to the results of industrial accident and disease, leaving those who felt the need for greater security, by voluntary insurance, to provide an addition to the flat

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subsistence guaranteed by the state. If a workman loses his leg in an accident, his needs are the same whether the accident occurred in a factory or in the street; if he is killed, the needs of his widow and other dependants are the same, however the death occurred. Acceptance of this argument and adoption of a flat rate of compensation for disability, however caused, would avoid the anomaly of treating equal needs differently and the administrative and legal difficulties of defining just what injuries were to be treated as arising out of and in the course of employment. Interpretation of these words has been a fruitful cause of disputes in the past; whatever words are chosen, difficulties and anomalies are bound to arise. A complete solution is to be found only in a completely unified scheme for disability without demarcation by the cause of disability (Social Insurance and Allied Services, Cmd 6404, 1942, para 80 (pp 38–9)).

From the point of view of an injured person, it is seldom initially relevant how the injury was sustained. The needs created are the same whether one was injured at work or at home, whether one was knocked down by a motor vehicle or a bicycle, whether there was fault on the part of someone else or whether the accident occurred in one state or another. What determines the injured person’s needs will be the severity of the injuries, the extent of their rehabilitation and recovery and the consequent effect on the individual’s particular capacities. Even before compensation for the injury is sought, however, the distinctions become vitally important. [page 60] The Review of Professional Indemnity Arrangements for Health Care Professionals, in its Final Report, stated:

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One doctor remarked that in determining interventions to save a person’s life [immediately after catastrophic injuries], whether or not a person with a severe disability was likely to have access to compensation was sometimes taken into account. Without access to compensation, it was thought, the services available to assist the person would not be sufficient to provide an acceptable quality of life. This must be abhorrent to any person concerned with equity and social justice.154

In determining which scheme, if any, is available to an injured person and how much is to be paid, the circumstances of the accident are most significant.155 The massacres that took place in Melbourne on 9 August 1987 and Port Arthur on 28 April 1996, in which random victims were shot by gunmen, provided stark illustrations of this point: see also 1.4.2. Consider the potential claims arising from the following scenario: A young man with a history of mental illness suddenly runs amok at work. He hits a fellow employee over the head with a bottle. He then runs outside where he grabs a garden tool and attacks a man working in the garden. Then he climbs into a car and runs some people down. Afterwards he leaves the car and attacks children playing on the footpath. Eventually he is shot and killed by a policeman.

It is possible that all the people so injured by the young man might have a claim at common law against him, which would survive against his estate under legislation in each of the states: see 9.1. However, the law relating to civil liability for the acts of a mentally impaired person is uncertain and might only be settled after an appeal to the High Court of Australia: compare Carrier v Bonham 3.2.13C. In any event, his estate is unlikely to have sufficient assets to pay all the damages. However, if his estate is liable at common law, then

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those people seriously injured when run down by the car he drove would be ‘lucky’. The statutory indemnity provided for drivers of motor vehicles would ensure that they do receive any damages to which they are entitled at common law, subject today to certain fairly generous limits in some jurisdictions. Even if there would be no liability at common law, those injured through the driving of the motor vehicle might recover under the ‘blameless accident’ provisions in New South Wales (see 1.4.21) and in Victoria, Tasmania or the Northern Territory would receive (somewhat lesser) no-fault benefits. Anywhere else in Australia today such benefits are unavailable. In most states, however, all the victims would be entitled to criminal injuries compensation, since this is generally payable notwithstanding that the assailant could not have been found guilty, owing to his mental impairment. The maximum amount of compensation would vary, depending on the state in which the incident occurred, and would almost certainly be inadequate in the case of serious injuries. (In the actual case on which this illustration is based, the Victorian Crimes Compensation Tribunal itself remarked on the insufficiency of its then maximum award of $3000 to a woman who had suffered brain damage and partial paralysis as a result of a blow with a spade: The Age, 24 September 1975.) Comparatively ‘lucky’ would be the fellow employee who was struck by the bottle and who would be able to claim workers’ compensation. In the case of the gardener, payment of workers’ compensation may depend on categorisation of the gardener as either an employee or independent contractor, a distinction which is sometimes difficult to make: see, for example, Hollis v Vabu Pty Ltd 17.2.2C. If the

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[page 61] young man himself had a wife and children and had been prudent enough to take out a life assurance policy, his dependants might benefit from that or, if they satisfied a means test, qualify for a social security pension. Another illustration comes from Brewer v Incorporated Nominal Defendant [1980] VR 469 (FC). The plaintiff was injured when struck by a rock deliberately thrown at the vehicle in which she was a passenger by an occupant of another car. A judge of the Supreme Court held that the injury was not caused by and did not arise out of the use of a motor vehicle.156 This was reversed on appeal, with one judge dissenting. Thus two Supreme Court judges were of the opinion that the compulsory motor vehicle insurance legislation applied, whereas two were of the contrary opinion. Southwell J, who held in favour of the plaintiff, nevertheless remarked ‘that parliament, and the average motorist who pays premiums, might be somewhat dismayed to find that such an incident is covered by insurance, and to find that the victim is not confined to her remedy under the Criminal Injuries Compensation Act 1972’: at 478. The consequence to the plaintiff of being confined to the latter remedy would have been to deny her ‘full’ compensation and limit her to a maximum, which at the time was $5000.

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1.4.26 The criticism of the common law we noted at 1.3.7, and expanded on in the extract from the NDIS Report157 at 1.3.8E, extends also to the haphazard operation of the multiplicity of compensation schemes. Such criticism has led to recommendations for their replacement by a comprehensive and uniform system. Such a system could also overcome the delays associated with the common law insurance scheme and need not be as expensive. It might, like the NDIS Report in relation to catastrophic disability, concern itself with needs, not losses: compare 1.4.25. We shall now look briefly at the two Woodhouse reports and following that the National Disability Insurance Scheme and the National Injury Insurance Scheme.

New Zealand 1.4.27 The first Woodhouse report resulted from a Royal Commission established to review New Zealand’s workers’ compensation law.158 However, it drew attention to the futility of isolating only one aspect of the total accident problem. It recommended a new approach, based on five principles: community responsibility (that is, we as a community benefit from accident-causing activities; thus the community — not merely the random victims — should bear the cost of the inevitable consequences of those activities); comprehensive entitlement (that is, cover 24 hours a day, 7 days a week for everyone); complete rehabilitation; real (that is, adequate) compensation; and administrative efficiency.

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After much debate, the Accident Compensation Act 1972 (NZ) was passed, which, after a number of amendments following a change of government, came into operation on 1 April 1974.159 The legislation abolished common law actions and instead provided compensation for everyone in [page 62] New Zealand for ‘personal injury by accident’. The original legislation has been repealed and replaced several times, the current Act being the Accident Compensation Act 2001 (NZ). Various amendments have been made to details, but 40 years after its enactment, the essential scheme is still operating. Despite (mostly uninformed) criticism from those opposed to the introduction of a similar scheme in Australia, there are few people in New Zealand who want to return to what went before.160

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1.4.28 The second Woodhouse report resulted from the establishment of a National Committee of Inquiry into Compensation and Rehabilitation in Australia under the chairmanship of Sir Owen Woodhouse, at that time a judge of the New Zealand Court of Appeal. That committee’s Report of the National Committee of Inquiry into Compensation and Rehabilitation in Australia, published in 1974, recommended an improved version of the original Woodhouse scheme, based on the same five principles referred to at 1.4.27. It was even more comprehensive than its New Zealand counterpart because it encompassed incapacity due to sickness as well as accident. Legislation to give effect to the recommendations passed the House of Representatives, but ran into opposition from trade unions, the insurance industry, some of the states, professional bodies representing lawyers and doctors, and others.161 The Bill was referred to the Senate Standing Committee on Constitutional and Legal Affairs, consisting of three Labor and three Liberal Senators, whose Report on the Clauses of the National Compensation Bill, 1975, acknowledged ‘serious doubts as to the constitutional validity of the Bill’ and recommended that it ‘be withdrawn and reconsidered’ in several respects, in particular that ‘the sickness part of the scheme should be reconsidered both with respect to cost and economic practicability’: para 1.23. The Bill became one of the casualties of the dismissal of the Labor Government at the end of 1975. In order to preserve as a matter of public record the work that went into redrafting, the Bill was reintroduced into the House of Representatives as a private member’s Bill by the Hon E G Whitlam on 24 February 1977. Without government support, it was not passed.162

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Sickness 1.4.29 The major respect in which the Australian Woodhouse Committee’s recommendations went beyond the scheme in force in New Zealand was that it proposed to bring within its scope not only accidents, but also sickness. Workers’ compensation legislation has long encompassed certain industrial diseases, such as pneumoconiosis, silicosis and asbestosis. Early decisions on the meaning of ‘personal injury by accident’ under workers’ compensation Acts brought within their scope heart attacks and the aggravation of existing physiological conditions by activities, as well as illness due to the entry into the human system of bacilli or viruses, in the course of the employment. In abolishing workers’ compensation, the New Zealand legislature necessarily had to include such matters in the Accident Compensation Act. Diseases that are other than work-related, however, are not covered. [page 63] This lends itself to the same criticism as made previously about the haphazard nature of the existing accident compensation systems. From the victim’s point of view it is surely irrelevant whether the incapacity is due to cancer or multiple sclerosis on the one hand or a road

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accident or snakebite on the other. As one New Zealand quadriplegic put it: If a drunken driver injures himself by hitting a telegraph pole, they call that an accident. I call it a self-inflicted injury. If a rugby player becomes a paraplegic from impact in the scrum, they call that an accident. I call it a planned risk. If a small child runs into the street because there is no fence to stop him and is hit by a car, they call that an accident. I call it a predictable consequence. If someone is crippled by multiple sclerosis, there is nothing he could possibly have done to prevent that. We don’t know what causes it, so he could not possibly have avoided it. I call that a true accident. But they say he is not covered.163

The extension of the scheme to cover illness not only eliminates this anomaly, but avoids dispute over whether the disease was the result of an accident or contributed to by the victim’s employment.164 To provide similar benefits for sickness, however, would require an enormous new expenditure of public funds. That has not been politically acceptable. Furthermore, even with the extension of the benefits to sickness, anomalies would occur; a worker unable to earn an income has the same needs whether the inability is due to accident, sickness or recession, and yet unemployment benefits may be less than a third of accident benefits. Nor are the social security benefits payable to a deserted spouse and children likely to reach anywhere near the compensation levels proposed for death of the breadwinner, whether due to accident or disease.165 Palmer defends the earnings-related principle, but concedes that under the accident scheme in New Zealand there may be: … some redistribution in the wrong direction. Levies for private cars are all the same yet some of those injured will take out high earnings-related benefits, while others will receive smaller earnings-related compensation or none. A lowearning car owner will pay the same levy as a high-earning one and receive lower benefits if injured.166

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The same, of course, applies under the existing common law system as reinforced by compulsory third party insurance in Australia: compare Editorial Comment, ‘Keeping Professors in the Comfort to which They have Grown Accustomed’ (1995) 3 TLJ 1. Tort law and compensation systems based on tort principles are essentially concerned with making up for losses; social security in Australia, at least, is mainly concerned with meeting needs.

National Disability Insurance Scheme and the National Injury Insurance Scheme 1.4.30 The debate in 2001–03 on ‘tort law reform’ revolved around assertions of the need to reinvigorate personal responsibility as opposed to community responsibility.167 However, calls for a [page 64] National Compensation Scheme resurfaced periodically.168 In April 2010, the Australian

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Government, as part of the National Disability Strategy, requested the Productivity Commission to undertake an inquiry into a National Disability Long-term Care and Support Scheme which would cover people who had a disability through illness, disease or injury. The current systems were found to be ‘increasingly unstable’ and ‘unsustainable’. In 2011, the Productivity Commission released its report,169 which recommended a new ‘collective’ system for the care and support needs of people with a disability, including those who have suffered a catastrophic injury. That report prompted significant public support170 and a commitment from all major political parties to move towards its implementation. 1.4.31 The ‘coherent national system for disability support’ recommended by the Productivity Commission is made up of a National Disability Insurance Scheme (NDIS)171 and a National Injury Insurance Scheme (NIIS). Trials of the NDIS began in 2013 and from 1 July 2016 the scheme rolled out across Australia with full operation of the scheme expected by 30 June 2020.172 The NDIS is a national scheme.173 When fully operational it will provide funding for reasonable and necessary disability supports for people under 65 years of age174 with a significant and permanent disability (including significant and enduring psychiatric disability),175 promote the inclusion and participation of people with a disability in society, and promote community awareness.176 It covers people who have a disability caused by sickness, illness or injury.177 The disability supports covered by the scheme includes aids and appliances, assistive technology, home and vehicle modifications, personal care, community access and recreation supports, respite care, specialist accommodation, domestic assistance, transport assistance, specialised employment preparation programmes, higher education and vocational education support, and individualised case management.178 Importantly, unlike the other more comprehensive schemes discussed above, the NDIS does not cover income support or provide

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[page 65] lump sum payments for ‘damages’.179 The Productivity Commission proposed that income support for people with a disability would continue to be provided by the Disability Support Pension (one of the social security benefits referred to at 1.1.19). The cost of the scheme was estimated in 2011 at just over $13.5 billion per annum, requiring an additional $6.5 billion per annum above the existing levels of state and federal disability funding.180 By 2014, a National Commission of Audit estimated that when fully implemented the cost of the NDIS would be $22.1 billion per year, reaching $25 billion by 2022–23.181 At the time of writing, the Productivity Commission has been commissioned to review the cost of the NDIS and the sustainability of the scheme.182 1.4.32 As seen at 1.3.8E, the Productivity Commission recognised many flaws in the common law (fault-based) system of compensation for personal injuries. It found that there was a ‘general superiority of no-fault insurance arrangements to fund, manage and co-

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ordinate the lifetime care and support needs’ of people with a catastrophic injury. The NIIS was proposed as a separate federation of state no-fault accident insurance schemes183 for catastrophic injuries (including major brain injuries, spinal injuries, severe burns, and multiple amputations).184 It would cover all newly-acquired catastrophic injuries from nearly all causes, including from ‘motor vehicle accidents, medical treatments, criminal injury and general accidents within the community or at home’.185 Common law rights to sue for future care and support costs of catastrophic injury would be removed.186 However, injured people would retain the right to sue for less severe injuries and for economic loss and pain and suffering which results from all injuries. The NIIS would ‘meet all of a person’s injury-related needs’, including ‘reasonable and necessary clinical health services, medical and social rehabilitation, early interventions, therapies, care, and home and vehicle modifications.’187 The NIIS would be funded by the states and territory governments188 from a range of sources, including insurance premiums (including those from

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[page 66] compulsory no-fault schemes) and the financial offsets from savings in legal costs, reduced incentives for injured people to litigate and reduced reliance of catastrophically injured people on other social welfare services.189 The Productivity Commission suggested that over time it would be logical to extend the NIIS to cover economic loss and damages for pain and suffering, and to remove common law claims for all injuries. However, it noted this was a radical shift and suggested the merits of this be reviewed in 2020 after the NDIS and NIIS had been operating for some years.190 At the time of writing, NIIS schemes for catastrophic injuries caused in motor vehicle accidents had been introduced across Australia.191 Draft minimum standards for work injury NIIS schemes192 had been released and the Commonwealth, states and territories were working to implement the benchmarks where existing workers’ compensation schemes were not adequate.193 The development of further NIIS schemes to cover medical injury, criminal injuries and general injuries have not progressed at the time of writing.194 1.4.33 The NDIS and NIIS should greatly improve the situation of injured people across Australia, and ameliorate many of the difficulties that injured people face in obtaining compensation for serious injury. However, as long as the common law retains some operation in relation to personal injury claims, many of the criticisms will still have force.195 There is also potential for inconsistency of treatment of people with the same disability dependent on: whether they are covered by the NDIS or NIIS; the state in which the injury occurred if the injury was within the NIIS; whether they can prove fault in areas where resort to the common law is not precluded; whether they are precluded from accessing the NDIS or the NIIS on account of having

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received lump sum compensation;196 and whether they remain entitled to take a lump sum for lifetime care and support costs and elect out of a NIIS scheme.197 Subrogating the providers of the benefits under the NDIS and NIIS to the common law and statutory rights of participants in the scheme is also extremely wasteful of costs for which little or no benefit is likely to be received in the form of accident reduction.198 [page 67]

Lawyers need to be familiar with multiple regimes 1.4.34 At state level, some of the discrepancies between motor accident and work accident benefits and common law rights have been reduced as the result of legislative changes in recent years. However, in relation to tort actions the legislatures have ignored the first recommendation of the Ipp Report 1.1.12, that its ‘recommendations should be incorporated … in a single statute … to be enacted in each jurisdiction’. For the foreseeable future, student lawyers must continue to learn the intricacies of the common law of torts and to cope with the differences in legislation among the states. Qualified lawyers, in order to properly advise their injured clients, must also be familiar with the relevant legislation in their own, and sometimes other, jurisdictions affecting compulsory third party insurance, workers’ compensation, criminal injury compensation, no-fault liability (if any) and social security. Otherwise, they risk being held liable for negligence: compare Hutt v Piggott Wood & Baker (Tas SC, Crawford J, 28 May 1993, unreported).

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5 NATURE AND DEFINITION OF A TORT The protection of interests at common law 1.5.1 At common law, persons who sustained injuries were left to bear them as best they could, unless the law found good reason to shift the loss to someone else. The means by which such loss was shifted from about the end of the twelfth century was the writ of trespass. By the fourteenth century this writ had been supplemented by the action of trespass on the case. In these two old remedies lie the origins of most of the modern law of torts. The remedies, however, were not exclusively for the protection of plaintiffs against invasions of their bodily integrity: a trespass could involve interference with goods (chattels) or land, as well as the person. On the whole, the nature of the remedy did not differ much according to the particular interest of the plaintiff that was affected. Maitland’s famous dictum, ‘The forms of action we have buried, but they still rule us from their graves’ (F W Maitland, The Forms of Action at Common Law, 1909, Lecture 1), applies also to compilers of casebooks. We

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might prefer to align ourselves with Lord Atkin’s role for the judge, for whom, when ‘these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course … is to pass through them undeterred’: United Australia Ltd v Barclays Bank Ltd [1941] AC 1 (HL) at 29. Gummow J has, however, reminded us that ‘while the old forms of action may not rule us from their graves, they cannot readily be ignored when seeking to locate a root for common law substantive principle’: Scott v Davis 17.5.1 at [160]. A completely rational scheme would take account of the different insurance developments referred to at 1.1.25 and 1.2.1 and deal separately with the interests in bodily integrity and freedom from damage to, or destruction of, property: P S Atiyah, ‘Property Damage and Personal Injury — Different Duties of Care?’ in T Simos (ed), Negligence and Economic Torts, LBC, Sydney, 1980, p 37. However, the principles of the tort of negligence, which today forms the main protection against such invasions, do not distinguish between these two interests, and we have to deal with them together. Thus, Chapters 2–8 of this book concern themselves with personal injury and property damage together. However, we have considered separately the protection of the interest in the preservation of pure economic wealth:199 see Chapter 16. 1.5.2 Although the legislation discussed at 9.2, which provides compensation for the loss suffered on the death of someone, has been interpreted as affording a remedy for financial loss only, that is, an economic (or pecuniary) interest, in practice it depends mostly on a showing of personal injury to the deceased caused by the negligence of the defendant. Therefore, it is dealt with immediately after the

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[page 68] general treatment of the protection of the interest in bodily integrity (and freedom from damage to, or destruction of, property). Certain other torts, omitted altogether from this book, do offer protection against purely financial loss, that is, passing off, injurious falsehood, conspiracy, intimidation and inducing breach of contract. The first two are now so intimately bound up with modern legislation on trade practices, trade marks, copyright and design that they are better dealt with in a course on intellectual property; while the last three are best seen in the context of a labour law course, since it is in the sphere of industrial relations that they loom most large. 1.5.3 Chapters 11–13 are also concerned with interference with the person, land and goods, but mainly in relation to torts which require an element of intention (the nature of which will have to be explored). While, like the torts discussed in the earlier chapters, the torts here considered provide remedies for physical injury, damage and loss, they also offer protection to the interest a person has in freedom from humiliation, insult and other indignity. Some also assist to protect a very important modern interest which the law of torts has hitherto taken little account of, that is, privacy. Peep through my window from afar and I

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may be remediless; put your foot over my boundary while you look and the invasion of my dignity can be taken into account in the damages awarded for your trespass. The Australian Law Reform Commission in 2014 recommended the creation of a statutory cause of action for serious invasions of privacy to be enacted by the Commonwealth, although this is not supported by the current federal government: see 11.6.8. 1.5.4 The modern action for trespass to land at one time functioned as a method of resolving disputes as to property rights in the surface of the soil. This function has probably been largely superseded by the growth of the power of the courts to grant a declaration; it remains important in the rare case that requires a determination of how far those property rights extend upwards or downwards. Its main concern, however, is the protection of possession, preventing direct interference with use and enjoyment. Indirect interference with use and enjoyment of private land is the province of private nuisance. There is some dispute whether this tort, like its namesake, public nuisance, incidentally protects interests in physical security and personal property. Nuisance is the subject of Chapter 14.

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1.5.5 The proprietary interest in goods is protected against physical damage to the goods by the torts discussed in Chapters 2–8. The protection of the proprietor against deprivation of possession through the torts of trespass to chattels, conversion and detinue is not dealt with in this edition of the book. See the supplement to our previous edition, N Foster, Torts Cases and Commentary Supplement: Defamation and Wrongful Interference with Goods, LexisNexis Butterworths, Sydney, 2014; R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 4. 1.5.6 The dignitary interest in one’s person and the interest in privacy may also be incidentally protected by the tort of defamation, but primarily the remedy is there to protect the interest in reputation. This tort, which consists at common law of the sibling torts of libel and slander, has little in common with the accident problems previously discussed. Whenever B injures A, in person, property or pocket, we have seen that the law requires some good reason before it will shift the loss from A to B; such reason must be sufficient to justify the increase in the total cost to society that the loss-shifting process entails. While, as mentioned, the theoretical deterrence of undesirable, loss-producing conduct may supply the justification, too ready an imposition of liability may be thought to inhibit socially desirable activity, stifle initiative or, particularly where economic losses are concerned, limit healthy competition. Thus one may see the figure of justice holding in the one pan of her scales the particular interest of the plaintiff in physical security and in the other pan the interest of the defendant in freedom of action. Apart from the fact that this metaphor sometimes obscures collateral matters such as insurance, the process is obviously unsatisfactory in that the value to be placed on the respective interests is not susceptible of precise quantification. [page 69] Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

Nevertheless, the difficulties are even greater when one enters the realm of defamation: here the plaintiff’s interest in reputation is nebulous, yet much cherished; the defendant’s interest is no less than one of the foundations of a democratic society — freedom of speech. The extent to which the Australian Constitution requires the law of torts to strike a particular balance led to considerable disagreement in the High Court until it unanimously settled the issue in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. After years of fruitless attempts following the report of the Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, ALRC No 11, 1979, more or less uniform Acts were passed in all Australian jurisdictions in 2005–06: see D Rolph, ‘A Critique of the National, Uniform Defamation Laws’ (2008) 16 TLJ 207; Foster 1.5.5. 1.5.7 One of the torts contained in Chapter 11 on intentional interference with the person is false imprisonment. The principal interest protected by that tort is liberty. This interest may also find protection in some applications of the tort of malicious prosecution, the elements of which we discuss at 11.5.24–11.5.36. The major interest protected by this tort is the interest in not being vexed by improper use of legal process. Several other torts with which we do not have space to deal also protect against abuse of process. On this and other similar torts, see Balkin and Davis 1.5.5, Ch 25. 1.5.8 Where a protected interest is invaded and the law of torts permits a shifting of the loss from the plaintiff to the ‘wrongdoer’, the loss does not necessarily remain there. Through the insurance mechanism it may be further distributed. The other possible methods of distribution, vicarious liability and contribution among tortfeasors, are discussed in Chapters 17 and 18.

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Unprotected interests 1.5.9 A rule that a particular loss is not to be shifted is as much part of the law of torts as one that permits the shifting of a loss. The failure at common law to give a remedy to a cyclist who collides with an animal that has escaped from a paddock (see 7.1.3) is a result of a rule of the law of torts. The particular rule may be due to a decision to give greater weight to the defendant’s freedom of action than to the interest of the plaintiff that has been invaded. Sometimes, the initial judgment made by the courts has been seen to be wrong and legislation has been enacted to give the necessary protection. The remedy so enacted may, by common consent, be treated as grafted on to the stem of the law of torts and become just another branch; at other times, tradition decrees that the new remedy be treated as planted in soil of its own, to take root as an independent creation. An illustration of one of each type of such legislation may suffice. 1.5.10 As we shall see at 9.2.1, in Baker v Bolton (1808) Camp 493, Lord Ellenborough ruled that in ‘a civil court, the death of a human being could not be complained of as an injury’. Neither the grief and bereavement resulting from the death of a loved relative, nor the financial loss resulting from the death of a breadwinner, achieved any recompense at common

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law. Parliament was forced to step in. It enacted for England the Fatal Accidents Act 1846 (UK), which in general terms provided a remedy where the death was due to the wrongful act, neglect or default of another. (How the courts dealt with this legislation is discussed at 9.2.) Similar legislation is now in force throughout Australia and there can be little doubt that actions under Lord Campbell’s Act (as the original enactment and its successors are known) are to be treated as an integral part of the law of torts, at least if the wrongful act, neglect or default on which an action is based was itself a tort: Blomme v Sutton (1989) 52 SASR 576 (FC); compare Downs v Williams (1971) 126 CLR 61 at 84 per Windeyer J (dissenting on the main issue). 1.5.11 With this should be compared Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 (HL). Shipowners engaged in carrying tea from China formed an association. In order to keep the plaintiffs, who were former members of the association, out of the trade, the defendants agreed to reduce freight rates drastically for 1 year and to give agents a substantial rebate if they dealt exclusively [page 70]

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with members of the association. The Lord Chief Justice, two members of the Court of Appeal and no fewer than seven members of the House of Lords all held that the plaintiffs had no cause of action. The following extract is from the judgment of Bowen LJ in the Court of Appeal: What, then, are the limitations which the law imposes on a trader in the conduct of his business as between himself and other traders? There seem to be no burdens or restrictions in law upon a trader which arise merely from the fact that he is a trader, and which are not equally laid on all other subjects of the Crown. His right to trade freely is a right which the law recognises and encourages, but it is one which places him at no special disadvantage as compared with others. No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it. [His Lordship gave ‘instances of such forbidden acts’.] But the defendants have been guilty of none of these acts. They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade …. The substance of my view is this, that competition, however severe and egotistical, if unattended by circumstances of dishonesty, intimidation, molestation, or such illegalities as I have above referred to, gives rise to no cause of action at common law. I myself should deem it to be a misfortune if we were to attempt to prescribe to the business world how honest and peaceable trade was to be carried on in a case where no such illegal elements as I have mentioned exist, or were to adopt some standard of judicial ‘reasonableness’, or of ‘normal’ prices, or ‘fair freights’, to which commercial adventurers, otherwise innocent, were bound to conform … ((1889) 23 QBD 598 at 614, 620).

Since 1974, there have been elaborate provisions for the regulation of such shipping agreements as affect outward cargo from Australia. They are currently to be found in the Competition and Consumer Act 2010 (Cth) Pt X (International Liner Cargo Shipping). They provide for the registration of certain agreements. If the agreement is registered, the parties will be given partial and conditional exemptions from the more general provisions of the Act: ss 45 (contracts etc that restrict dealings or affect competition), 47 (exclusive

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dealing). Private actions for damages for breaches of the general provisions are available under s 82. Few people would contend, however, that the law of restrictive trade practices is a branch of the law of torts. 1.5.12 There remain instances where real loss or harm to plaintiffs is unprotected by the law of torts and where no civil remedy of any kind is accorded. Such instances are said to be examples of damnum sine injuria (harm in the absence of a legal wrong). In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 12.2.17, the High Court refused a remedy to a possum abattoir against the broadcast by the ABC of a film showing the slaughtering of the animals, which the ABC had obtained without committing any wrong. The majority of the High Court showed that it would not create a right of privacy that protected purely commercial interests. In this respect at least, Victoria Park Racing and Recreation Grounds Co Ltd v Taylor 14.1.26C remains good law. In erecting a tower on neighbouring land and broadcasting from there, the defendants in the Victoria Park case committed no tort; consequently the plaintiffs’ interest in their profit-making activities went unprotected from the interference that was caused by the broadcasts. We shall see other instances below. 1.5.13 There is a tendency among students to think that if a defendant has acted in an obviously wrongful way, a plaintiff who has suffered in consequence must have a cause of action. In SB v State of NSW 2.6.29, Redlich J referred to ‘the frequently cited dictum of Sir Thomas Bingham MR (as he then was) in M v Newham London Borough Council which is reported with X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 663 … that the first public policy rule which has a claim on the law is that wrongs be remedied’. Redlich J commented:

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[page 71] That ‘wrongs’ should be remedied frequently assumes that which must be proved. Over reliance on this public policy rule ignores the caution given by Cardozo CJ in Palsgraf v Long Island Railroad Co 248 NY 339 at 343; 162 NE 99 at 100 (1928) as to the ‘shifting meanings’ of words such as ‘wrong’ and ‘wrongful’ and that arguments based upon them ‘share their instability’ (at [195]).

Knowledge of the law of torts helps one to discover what acts are and what acts are not unlawful. The following case and notes illustrate how even conduct which may be punishable criminally, such as perjury and contempt of court, does not necessarily give rise to a civil action. 1.5.14C

Cabassi v Vila (1940) 64 CLR 130; [1941] ALR 33; [1940] HCA 41 High Court of Australia

[The plaintiff had sued one F for having fractured her jaw by striking her. Evidence was given by F and a number of other Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

witnesses that, after she had abused F, the plaintiff had been locked in a room, that she had jumped from a window about 3.3 m above the ground and that she had thereby injured her jaw. The magistrate gave judgment for the defendant and an appeal was dismissed. The plaintiff subsequently brought the present action against two of the witnesses and F, alleging that they had conspired to give false evidence in the previous proceedings. The Supreme Court of Queensland upheld a demurrer to the statement of claim (an objection to the pleading) by one of the witnesses and entered judgment for him. The plaintiff appealed.] Starke J: … No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts. [His Honour then cited authorities relating to each of these categories and continued:] Actions against witnesses for defamation have failed and so have actions analogous to actions for malicious prosecution, and now we have an action against witnesses for conspiracy to give, adduce and procure false evidence justified by the proposition … that a combination of a set of persons or a conspiracy for the purpose of injuring another followed by actual injury is actionable. But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared …, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court …. [Rich ACJ, McTiernan and Williams JJ delivered similar judgments.]

Question 1.5.15 How is the administration of justice advanced by denying a remedy against a witness who maliciously testifies falsely?

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1.5.16 The High Court has said that the ‘indefeasible immunity’ from suit recognised in the principal case: … is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial,

[page 72] legislative or official functions. The presumption is against such a privilege and its extension is not favoured …. Its application should end where its necessity ceases to be evident (Mann v O’Neill (1997) 191 CLR 204 at 239, quoting from Gibbons v Duffell (1932) 47 CLR 520 at 528).

It is therefore necessary ‘to limit the immunity to conduct during the course and as part of the judicial proceeding in which the party participates’: Mann v O’Neill (1997) 191 CLR 204 at 245; Harvey v Henzell [2015] QCA 261. However, in Commonwealth of Australia v

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Griffiths (2007) 70 NSWLR 268, it was held that witness immunity protected an analyst, who it was alleged manipulated a drug test so as to lead to the plaintiff being charged with an offence. The Commonwealth as his employer was also held protected. As Young CJ in Eq commented: I have been greatly disturbed by this case as it would seem to the man or woman in the street that if an employee of the Commonwealth, whom the community relies on for scientific accuracy, deliberately tampers with his or her scientific instruments to produce a false result knowing that such result may have drastic consequences for a person, that person should be able to sue. … The consequences for the respondent in the present case were severe. A person in his seventies with health problems, and a person who apparently has an unblemished character was imprisoned for two and a quarter years in respect of an offence of which he was ultimately acquitted. There is a clear public policy that witnesses in curial proceedings have immunity in respect of their evidence and in respect of what they did in preparing to give evidence. The immunity is in place primarily to protect the court system from abuse, rather than to confer a benefit on the witness, Cabassi v Vila (1940) 64 CLR 130 at 141. There are dicta in some of the English cases that fabrication of evidence lies outside the immunity, see eg per Lord Hutton in Darker v Chief Constable of West Midlands [2001] 1 AC 435 at 469 and per Clarke MR in Meadow v General Medical Council [2007] QB 462 at 475–6. However, in Cabassi, it was made clear that the policy was that subsequent action for fabrication of evidence or perjury was to be left to the criminal law and that all conduct of witnesses was covered by the immunity. In D’OrtaEkenaike v Victorian Legal Aid (2005) 223 CLR 1 at 18 and 36 the High Court affirmed this approach. … [T]he authority in this country makes us reach the conclusion that Mr Ballard has immunity. As to the suggested vicarious liability of the Commonwealth for the acts of Mr Ballard, the authorities do not speak with one voice. However, the preponderance of them is that an employer cannot be vicariously liable for an employee’s action where the employee is not liable. This must be so in the case where the employee is not liable because, by statute or otherwise, he or she is deemed not to have sinned (at [145]–[152]).

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In refusing special leave to appeal, the High Court commented that the decision of the New South Wales Court of Appeal on the witness immunity point was right: Griffiths v Ballard [2008] HCATrans 227. Witness immunity for civil breach of duty was abolished by the United Kingdom Supreme Court in 2011: Jones v Kaney [2011] 2 AC 398. 1.5.17 Perjury in civil proceedings has been made actionable in South Australia: Civil Liability Act 1936 (SA) s 72. The South Australian Law Reform Committee recommended against its extension to criminal proceedings because of the difficulty in proving what would have happened in the criminal trial in the absence of the perjury: 83rd Report of the SALRC, 1984. 1.5.18 On the immunity from suit of advocates, see D’Orta-Ekenaike v Victoria Legal Aid 2.6.16C and the notes thereto; and Attwells v Jackson Lalic Lawyers Pty Ltd 2.6.25. Attempts to hold judges liable failed in Sirros v Moore [1975] QB 118 (CA) (circuit judge ordering detention of plaintiff without following proper procedure); Moll v Butler (1985) 4 NSWLR 231 (Family Court judge erroneously committing person for contempt of court); Rajski v Powell (1987) 11 NSWLR 522 (CA) (alleged bias by Supreme Court judge); Gallo v Dawson (1988) 82 ALR 401 (similar allegation against [page 73] Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

High Court judge); Fingleton v R (2005) 227 CLR 166 (overturning a magistrate’s criminal conviction on the grounds that the acts with which she was charged came within the immunity). Some of these cases acknowledge a possible marginal reduction in immunity where the judge knowingly acts without jurisdiction. For criticism of the immunity, see R J Sadler, ‘Judicial and Quasi-Judicial Immunities: A Remedy Denied’ (1982) 13 MULR 508; A A Olowofoyeku, ‘The Crumbling Citadel: Absolute Judicial Immunity De-rationalised’ (1990) 10 LS 271. See generally on litigation immunity Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307 (CA) at [10]–[22] (holding that a litigant owes no duty of care to another in the manner in which the litigation is conducted).

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1.5.19 According to Bradford Corp v Pickles [1895] AC 587 (HL), a lawful act does not become tortious merely because it is done with a malicious motive. A source of the water supply of the city of Bradford was water that did not flow in any defined stream, but percolated down from under the defendant’s land. In order to prevent the water reaching the point where it became useful to the city, the defendant sank a shaft on his own land. He gained no direct benefit from doing so, but hoped to force the corporation to buy the land, which he had inherited during his minority, at an inflated price. Earlier in the century, the House of Lords had decided that the owner of land under which there is water which is not in a known and defined channel may appropriate that water even though in so doing the owner deprives an adjacent landowner of water which the latter had enjoyed for many years: Chasemore v Richards (1859) 7 HLC 349. The Bradford Corporation sought to confine this rule to instances where the water was drawn off for purposes related to the enjoyment of the land. They argued that it did not apply when the landowner’s motives were bad. The argument was rejected and the corporation was held not to be entitled to an injunction to restrain the defendant from draining away the water. The plaintiff’s victory proved pyrrhic, since the corporation abandoned the reservoir and the plaintiff’s greed went unrewarded: A W B Simpson, Victorian Law and the Industrial Spirit, Selden Society, London, 1995. 1.5.20 On the dry continent of Australia, conduct such as that of the defendant in Bradford Corp v Pickles could not be tolerated. The Water Acts of the different states now make provision for the allocation of scarce water resources and the common law can no longer be relied on. It is questionable, however, whether breach of any of the provisions of these Acts gives rise to a civil remedy: compare Chapter 10. The expansion of the tort of negligence in the twentieth century greatly reduced the instances in which the interests in the security of the plaintiff’s person, property and pocket are left unprotected by the law of torts. Nevertheless, the student will come across more cases where the loss is left to lie on the plaintiff. This may be because the particular interest invaded is rarely given protection (such as where mental equanimity is upset by subjecting the plaintiff to distress, grief or sorrow, short of any recognisable psychiatric illness: see 5.1.11). Or it may be because historically the common law discriminated between the interests of husband and wife: Best v Samuel Fox & Co Ltd [1952] AC 716 (HL) (wife, unlike husband, does not have action for loss of

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consortium where spouse injured; changed by statute in most, but not all, jurisdictions either to abolish husband’s action or to provide wife with similar remedy): see 8.2.35–8.2.36. Or it may be because in the circumstances an interest normally protected is held to be outweighed by the need to protect the defendant’s freedom of action to the extent of conferring an immunity from liability even for negligent conduct, or by the need to ensure coherence of the common law with other established rules or with legislation: Sullivan v Moody 2.2.17C.

Definition of a tort 1.5.21 It remains true that there is no general principle of compensation lying behind the whole law of torts. As the great American writer William Prosser put it in the second edition of his Handbook of the Law of Torts, West Publishing Co, St Paul, 1955 (the precise quotation does not appear in later editions): [page 74] … ‘tort’ is a term applied to a miscellaneous and more or less unconnected group of civil wrongs other than breach of contract for which a court of law will afford a remedy in the form of an action for damages.

He continued:

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The law of torts is concerned with the compensation of losses suffered by private individuals in their legally protected interests, through conduct of others which is regarded as socially unreasonable (p 1).

For a recent discussion of the meaning of ‘tort’ in Australian law, see Lew Footwear Holdings Pty Ltd v Madden International Ltd [2014] VSC 320 at [159]–[197]. This book is intended to assist students to discover which interests are legally protected, what conduct is regarded as socially unreasonable and when a court of law will afford a remedy in the form of an action for damages. As mentioned earlier, it is hoped that in studying these materials, students will consider critically the adequacy of the law of torts as a means of protecting the various interests involved. 1.5.22 Two glosses should be made on Prosser’s description of the law of torts. The first relates to the remedy, stated to be ‘an action for damages’. Although probably in every case where a tort has been committed,200 an action for damages will lie — and indeed is the usual remedy — this is not the exclusive remedy available. In a limited range of cases, the law will tolerate self-help, so that conduct that itself might otherwise be tortious becomes legitimate when performed in order to avert the consequences of another’s tort, for example, using reasonable force to expel a trespasser: Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction to restrain the continuance or threat of harm: see 14.5.6–14.5.7. See also Plaintiff S99/2016 v Minister for Immigration and Border Protection

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2.1.2. 1.5.23 The second gloss is that Prosser’s description does not help us, any more than definitions of a tort found in textbooks and law dictionaries, directly to determine whether a particular action available in law is properly described as ‘an action in tort’. If one adopted a completely functional approach to the law, it would not matter how one classified a remedy; all that would be important would be to know that an action did in truth lie. However, the conceptual approach is deeply ingrained. As Lord Goff said in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 (HL), it is ‘perhaps crying for the moon’ (at 186) to hope to reformulate the rules so that they do not depend on such classification. For instance, the causes of action in contract and tort ‘have different elements, different limitation periods, different tests for remoteness of damage and … different apportionment rules’: Astley v Austrust 16.2.17 at [47]. This case decided that in actions against professional advisers, there is an implied term of the contract that the adviser will exercise reasonable care and skill. Similarly, unless it would be inconsistent with the contractual terms, there is usually a tort duty on the adviser to exercise reasonable care. If the adviser fails to exercise reasonable care and the client suffers loss in consequence, the High Court held that the client has the option of bringing an action either in contract or tort, whichever is the most advantageous in the circumstances.201

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[page 75] 1.5.24 Even if it were not ‘crying for the moon’ to hope that common law rules might be adapted to ensure that the name given to an action does not result in different consequences, we have less scope for manoeuvre when a statute or statutory rule attaches significance to the type of action. Sometimes a limitation statute has distinguished between actions in tort and others, as have statutes allowing jury trials or imposing vicarious liability for torts. In Chadwick v Bridge (1951) 83 CLR 314, the plaintiff sued the driver of a car and the Nominal Defendant in the same action. Under legislation allowing the plaintiff to join different parties ‘[i]n an action of tort’, Dixon J held that it was right to describe the action against the Nominal Defendant, who represented an unidentified driver, whose liability, if any, would clearly be in tort, as satisfying the statute. Although all the other members of the court agreed, Webb J expressed some difficulty in reaching this conclusion. See also Mathieson v Workers’ Compensation Board (Qld) [1990] 2 Qd R 57 (FC), where it was recognised that tortious liability could arise from statute as well as being imposed by the common law. The direct liability to an injured person in circumstances where both drivers in a two-party collision had been killed, which was imposed on compulsory third party motor vehicle and employers’ liability insurers under the relevant Queensland statutes, though free from any personal fault on the part of such insurers, was held to be sufficiently tortious in nature to allow contribution under the legislation providing for contribution among tortfeasors.

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Vicarious liability at common law provided the court with an obvious analogy. 1.5.25 Chadwick v Bridge 1.5.24 has frequently been distinguished: see, for example, Philip Morris Ltd v Ainley [1975] VR 345 (employer’s statutory right to recover workers’ compensation it had paid from a negligent third party who had caused the death of the worker (obviously a dispute between two insurers, though this point was not regarded as relevant) not ‘an action … of tort’ for the purposes of a rule as to costs). Whether claims under the Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010 (Cth)) are claims in tort has assumed significance where parties have wanted to take advantage of the general statutes allowing for contribution or for reduction of damages for contributory negligence. These general statutes allow for contribution or reduction of damages in respect of actions in tort: see 18.2.4S and 6.2.4S. In Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 (CA), Spigelman CJ considered some of the earlier authorities, saying obiter:

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There is no doubt that statutes can create new torts and have done so. There is no simple definition of a tort. The elements that can be said to characterise torts are able to be stated at different levels of generality. The fact that all or most torts can be described in a particular way does not mean that everything that can be described in that way constitutes a tort (at [70]).

In Stryke Corporation Pty Ltd v Miskovic [2007] NSWCA 72, Spigelman CJ cited his earlier analysis and said that he agreed with the other members of the court ‘that the phrase “negligence or other tort” does not extend to proceedings invoking s 53B of the [Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010 (Cth))]. Whether or not the word “tort” extends to a statutory cause of action depends on the proper interpretation of the statute in which the word appears’: at [3]. See also ACQ v Cook 15.1.6, where Campbell JA also said obiter that ‘[t]he balance of authority supports the view that the action for damages conferred by s 82 of the Trade Practices Act is not an action in tort, notwithstanding that it expressly confers a remedy for a breach of a standard of action that the Trade Practices Act itself requires to be adhered to’: at [174]; but see Jonstan Pty Ltd v Nicholson (2003) 58 NSWLR 223; Lew Footwear Holdings Pty Ltd v Madden International Ltd 1.5.21. One can only conclude in circular fashion that ‘torts’ are those types of conduct for which a civil action for damages is available (even if a criminal prosecution is also possible and even if other civil remedies may also be available) and which are conventionally dealt with in textbooks on the subject, rather than in books on contract, restitution or equity. [page 76] 1.5.26 The reference to criminal prosecution in the previous paragraph provides an occasion for drawing attention to the rule that actions in tort founded on felonies were not permitted to proceed until the criminal prosecution had concluded. The rule is now obsolete,

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though the court will exercise its general discretion to stay civil proceedings if a party might be prejudiced in a pending criminal prosecution: Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 (CA). See also J Stapleton, ‘Civil Prosecutions: Part 1: Double Jeopardy and Abuse of Process’ (1999) 7 TLJ 244; J Stapleton, ‘Civil Prosecutions: Part 2: Civil Claims for Killing or Rape’ (2000) 8 TLJ 15. 1.5.27 The problem of how we classify a remedy is distinct from the question whether there is any remedy at all. We have seen at 1.5.9–1.5.22 examples of unprotected interests. We cannot learn from any definition of the law of torts whether the impugned conduct in those cases will give the plaintiff a remedy. If the law does protect the particular interest against the conduct in question, there may be no doubt that the remedy is one in ‘tort’, but we first need to discover from history, the forms of action and other sources whether any remedy at all is available. In CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 (CA) the court was strongly critical of a lower court judge who had ‘discovered’ a new tort of good faith on the part of an insurance company in paying benefits under the workers’ compensation legislation. The court distinguished Ilievska-Dieva v SGIO Insurance Ltd [2000] WASCA 161, where the Full Court in Western Australia refused to strike out such a claim because the law of negligence causing pure economic loss is still developing and the High Court refused special leave to appeal against this decision: [2001] HCATrans 443 (14 September 2001).

Aims of the law of torts 1.5.28 For a recent judicial statement of the aims of the law of torts as seen towards the end of the twentieth century, see Erlich v Leifer [2015] VSC 499 at [90], citing McHugh JA in Hawkins v Clayton (1986) 5 NSWLR 109 (CA) at 138, who said:

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The principal objects of [the law of torts] are to deter wrongdoing, to compensate losses arising from conduct contravening socially accepted values, and where appropriate to distribute losses among those in the community best able to afford them.

However, since torts are a miscellaneous group of wrongs with little in common, it is not surprising that there is disagreement among theorists as to what are the aims of the law in this area. A critical discussion of the various aims that have been advanced is to be found in G Williams and B A Hepple, Foundations of the Law of Tort, 2nd ed, Butterworths, London, 1984, expanding on and simplifying Glanville Williams’ article, ‘The Aims of the Law of Tort’ (1951) 4 CLP 137. Williams saw four possible bases on which different torts rested: appeasement, justice (divided into ethical retribution and ethical compensation), deterrence and compensation. The law tends to emphasise different aims in relation to intentional torts from those in relation to negligence or strict liability. He concluded that the ‘general picture is one of administrative action supplementing and even supplanting the spasmodic action of the law of tort, on the principle that prevention is better than punishment, control better than compensation’; compare J G Fleming, ‘The Role of Negligence in Modern Tort Law’

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(1967) 53 Virg L Rev 815. There are many writers today who place greater value on goals which are ‘internal’ to the law of torts (such as justice concerns) than on those which are external (such as the social or economic effects of tort law): see S Hedley, ‘Looking Outward or Looking Inward? Obligations Scholarship in the Early 21st Century’ in A Robertson and H W Tang, The Goals of Private Law, Hart Publishing, Oxford, 2009, p 193. J Oberdiek, Philosophical Foundations of the Law of Torts, Oxford University Press, Oxford, 2014, discusses the contrasting contemporary views as to the proper aims of tort law. For an evaluation of the views of different types of theorists, see the next three sections of this chapter. Here we merely note that Fleming took account of economic theories when in his article on the future of

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[page 77] the law of tort he identified the following policies in the sub-area of accidental injury: (1) deterrence and punishment; (2) efficient loss allocation; (3) compensating deserving victims; (4) minimising transaction costs; and (5) fairly distributing costs. He demonstrated convincingly how the law fails in practice to meet these aims, as we have already seen at length in Section 2 of this chapter. He concluded that lawyers would have a ‘civilised mission’ in the protection of civil rights and personality interests, much of which would be accomplished within the broader compass of the law of torts.202 D Harris, ‘Can the Law of Torts Fulfil its Aims?’ (1990) 14 NZUL Rev 113, too, saw the law of torts as a failure in so far as it aims to provide redress, to set standards and to deter anti-social behaviour where the wrongs are not intentional. However, he thought that the law of intentional torts is required for defining and protecting rights of personal freedom, reputation, ownership and possession, and for redressing infringements of those rights. The setting of standards even in the case of unintentional torts was seen as an important goal by A M Linden, ‘Tort Law as Ombudsman’ (1973) 51 Can Bar Rev 155. Although in the conclusion to that article he acknowledged that it was a ‘blunt and imperfect instrument’, Linden, after his appointment to the bench, still saw merit in the concept: ‘Reconsidering Tort Law as Ombudsman’ in F M Steel and S Rodgers-Magnet (eds), Issues in Tort Law, Carswell, Toronto, 1983. In this regard, claims are also made that tort law has a regulatory function and can be an agent of social change. See M L Rustad, ‘Torts as Public Wrongs’ (2011) 38 Pepperdine L Rev 2. Litigation in relation to smoking and asbestos are often given as examples. These claims seldom stand up to analysis: compare 2.3.16–2.3.17 (asbestos); 6.3.5 (smoking). Whether it is due to these claims or not, the tort law reform statutes generally exclude from their operation claims based on dust diseases and use of tobacco products, presumably on the assumption that manufacturers of toxic products should not have their liability limited. In so far as theorists continue to assert that the major aim of the law of torts is to compensate for the inevitable losses that occur in our society (compare the quotation from P

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Keeton (ed), Prosser and Keeton on the Law of Torts, 5th ed, West Pub Co, St Paul, Minn, 1984, p 20, in Harriton v Stephens 7.2.9C at [273], qualifying the claim), it should be observed that this role would be more effectively fulfilled by social security. In a world where insurance meets most instances of liability it is difficult to justify compensation — or even ‘full’ compensation — being made available only to those who can prove the commission of a tort. On the other hand, the existence of liability insurance makes less than plausible the continued assertion that the principal aim of the law of torts is to deter unsociable conduct. Whatever the outcome of this debate, the next three sections attempt to explain briefly some of the current theories, namely the economic theory behind some of the policies, such as ‘efficient loss allocation’, mentioned at 1.5.28, the feminist perspective and other legal theories of the law of torts.

6 ECONOMIC ANALYSIS Injuries and injury-prevention costs 1.6.1 In a very broad sense the compensation problem discussed in Section 1 of this chapter is a question of economics.203 As we note at 3.1.50, an English judge once observed that ‘if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our [page 78]

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national life would be intolerably slowed down’. Running trains at 5 miles an hour (8 km/h) is not the only way to avoid some of the deaths and injuries which occur every year as a result of the intersection of the two main forms of land transport, by road and rail.204 Wigglesworth has said: Ideally, the two systems should cross at different levels, ie there should be grade separation by means of bridges, tunnels or overpasses so that there is no risk of collision …. Such examples are rare in Australia …. [G]ates, boom barriers [or] flashing lights, … are … expensive to install and to maintain … In Australia about 8400 or about 80 per cent of the total of 10,500 crossings are ‘open’ …. in the sense that they have no type of active device. Instead they display one or more static signs, warning of the presence of a crossing. … Even if [the] large sum [required to install flashing lights at all these open crossings] were provided for land transport safety purposes … the most effective method of improving land transport safety might legitimately be deemed to be the extension of the road freeway network on the grounds that freeways are much safer than the conventional roadways that they replace (E C Wigglesworth, ‘How Can Safety be Improved at “Open” Level Crossings?’ (1990) 20(4) Australian Road Research 61).

This article points out that to guard, and a fortiori to eliminate, all the level crossings in Australia would involve a disproportionate cost: it would mean either increasing taxes considerably or diverting funds from hospitals, schools, other roads, cultural activities, etc. The community, through its elected leaders, makes a political judgment as to the priorities

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and is willing to accept a certain level of such accidents. The Andrews Government in Victoria came to office in 2014 on a platform that undertook to replace 50 level crossings and vigorously pursued this policy thereafter. Although reduction in injuries was part of the motivation for this, the main aim seems to have been to reduce urban traffic congestion. Providing grade separation by means of overpasses itself provoked considerable community opposition from people living close to some of the crossings. Similarly, limiting the speed of all motor vehicles drastically would greatly reduce road accident costs generally, but the total cost in loss of time, although less measurable than the cost of eliminating level crossings, is clearly unacceptable to the majority of people (compare the quotation from McHugh J at 3.1.50). 1.6.2 Decisions of this nature have to be made by individuals as well as at a political level. Say a manufacturer is able to turn out 10,000 articles a day with minimum safety procedures, so that each year a certain number of workers are injured. Output might be reduced to 8000 a day if a safer type of machine were installed. The manufacturer has to make an economic judgment as to whether the extra cost (if any) of the safer machine plus the loss of production is worth more or less than the saving to the firm from fewer injuries. Part of the saving from fewer injuries may be easily visible in a reduction in employers’ liability insurance premiums, but there may be other savings that are not so easily counted, such as a more stable workforce, improved industrial relations and less frequent disruption of production. If it appears to the manufacturer that the savings would be insufficient to outweigh the extra costs from installing safer machinery, the relatively unsafe type of machine may continue to be used.

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Externalities and general deterrence 1.6.3 The resources available in the world generally, or in a particular economy, are limited or ‘scarce’. Such resources as are available have to be divided up for the enjoyment of people. As mentioned, if resources are devoted to eliminating level crossings, there are fewer available for some other worthwhile [page 79] project. Economists argue that the aim should be to allocate the available resources as efficiently as possible. If the benefit derived by those who gain from a transfer of resources is greater than the detriment suffered by those who are harmed by it, allocative efficiency is increased or, in other words, resource misallocation is reduced. (We leave aside problems associated with measuring ‘benefit’ and ‘detriment’ in this context.) An ‘optimal’ allocation of resources would be achieved at the point where any further transfer of resources away from one person would harm the person from whom they are transferred more than it would

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benefit the person or persons to whom they are transferred. In the example at 1.6.2, injuries in the factory use up some of the economy’s resources in labour, medical services, etc. Installing a new machine with a safety device would also use up some resources, but would save the others. The question to be determined is whether the saving would outweigh the cost; if it would, some of the resources now devoted to the consequences of the injuries can be transferred elsewhere without making persons generally worse off and we would come closer to such ‘optimal’ allocation of available resources. (It should be noted that the conditions for ‘optimal’ allocation of the resources may be satisfied by distributing them in different ways.) 1.6.4 Now, assume (as will often be the case) that the only person in a position to weigh up the costs and benefits of installing the new machine is the manufacturer itself. Economists assume that the manufacturer behaves ‘rationally’. They presume that the manufacturer will make such a decision according to its own best interests, which will not necessarily coincide with those of the community as a whole. If the benefit to the manufacturer from installing the machine outweighs the detriment to it, the machine will be installed; otherwise it will not be. However, although such a decision is self-interested, it will at the same time benefit the community as a whole, provided that the manufacturer alone is required to bear all the costs of whatever decision is taken. If some of the costs are ‘externalised’, the self-interested decision may not coincide with the community’s interests and a misallocation of resources may result. Costs of injuries are said to be ‘externalised’ when they are shifted to persons not in a position to affect the level of their occurrence. For example, if the medical expenses and other losses resulting from the injuries are paid by the employer’s liability insurer, the premiums charged will reflect the costs. If the level of injury in our factory is high because of the absence of a safety device — and if no differential premium is charged to our manufacturer — the insurer must make provision for the costs by slightly increasing all employers’ liability premiums. In this event, although the overall cost of the injuries will remain the same, the cost to our manufacturer will be reduced: some of the costs will have been ‘externalised’. Since the manufacturer will take account only of the reduced costs to itself of the injuries, the ultimate decision on whether to take preventive measures by installing a safer machine may not reflect the balance of advantage to the community as a whole. Similar results may follow if the costs to an employer from injuries are reduced because some of the costs are borne by workers themselves or are shifted to the community via social insurance, such as Medicare, or the workers’ own health insurance. 1.6.5 Let us take another example. Assume that LCD television screens are completely safe, but that Organic Light-Emitting Diode (OLED) screens will under certain conditions burst into flames. Although this may occur only once in many million hours of use, assume that every year in Australia a few houses are burnt down owing to OLED screens. Since resources are limited, a decision has to be reached as to the relative value in the community of the pleasure of watching television on OLED screens and of the resources consumed in the fires. Some members of the community will value more highly the pleasure of watching

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television on OLED screens than their share of the alternative benefits to be gained from the resources which are now consumed in the fires and so would prefer to continue to purchase OLED screens; others would prefer the alternative benefits. Thus, a balance must be struck between these consumer preferences, so that some people may still use OLED screens, while others enjoy the benefits flowing from fewer fires. This can theoretically be achieved through the mechanism of the market. If the manufacturers of the screens were required to pay for the houses [page 80]

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destroyed in the fires, the cost of OLED screens would rise slightly, thereby increasing the differential between them and LCD screens. No doubt the increase would make no difference to many people, who prefer to pay extra for the pleasure of watching television on OLED screens and do not mind just how much that difference is. But some people (how many depends on what economists describe as the ‘elasticity of demand’) would be deterred by the increased price of OLED screens and would settle for LCD screens or none at all. Since the total number of OLED screens would then be fewer, there should be fewer fires. As a result of market forces, the community thus arrives at the balance it wants between enjoying OLED screens and the alternative benefits available from the resources consumed in the fires. However, if the cost of the houses that are burnt down is shifted to first party fire insurers, who do not exercise their right of subrogation (if any) against the manufacturers of screens and who do not raise premiums for users of OLED screens, the cost of buying and using OLED screens does not rise, the marginal consumer is not deterred, more OLED screens are bought, and some resources are wasted in fires, which resources could be devoted to benefiting some people to a greater extent than they — or others — are benefited by using OLED screens. Again, externalities are at work. 1.6.6 So far it has been assumed that fires are an inevitable consequence of OLED screens. This may not be so. It may be that by using more expensive materials or a more expensive production method, the risk of fire can be averted. Just as with the injuries to the workers in the previous example, externalising the costs reduces the incentive to the manufacturer to adopt the more expensive method, which it might do if those costs were placed on it. 1.6.7 What has all this to do with the law of torts? From the 1960s onward there developed a large body of academic literature, mainly American, concerned with the problem of the influence that the law has on resource allocation. Given that resources are limited, how best can those resources be allocated so as to achieve the optimum desires of society? Since, as we have seen, we are not prepared to use large amounts of scarce resources in order to prevent all injuries — or a particular type of injury — one aim of the law should be to minimise the sum of injury costs plus injury avoidance costs in the whole community. However, in some

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instances a trade-off may be needed between ‘efficiency’ in the economist’s sense and equity.205 1.6.8 Economic theory has influenced the debate in Australia in relation to whether premiums charged under different compensation schemes should be flat-rate, as they mostly are for compulsory third party motor vehicle insurance (that is, the amounts do not vary according to the motorist’s individual accident record or the make of vehicle being insured), or risk-related, as they mostly are in relation to workers’ compensation, where they vary according to the nature of the employer’s industry and/or the firm’s own safety record. It clearly influenced the Productivity Commission in recommending a separate NIIS. It said: Risk rating is an important aspect of insurance products, including for mandatory products. By reflecting higher risk in higher premiums, the consumer receives an important price signal that may affect their purchasing choices and their behaviour. The capacity to risk- and experience-rate insurance to reduce accidents is a key rationale behind the mostly premium-based funding sources of the NIIS.

But it recognised that ‘[t]he benefits of risk rating have to be sensibly weighed against other objectives’, giving the example that ‘pure risk-rated premiums for young male drivers would be so high as to be prohibitive for many (affecting employment and imposing wider social and economic costs)’.206 [page 81]

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The Productivity Commission might be over-optimistic that this balance can be achieved. One American writer summed up his extensive consideration of the situation there as follows: The decades-long process of attempting to employ tort liability to promote loss spreading, and to use insurance to promote loss prevention, has been far from completely successful. … [P]art of what influences the character of contemporary tort law and insurance is precisely that each system is sometimes asked to do more than it can do effectively. Tort cannot be a thoroughly satisfactory loss-spreading device, and insurance cannot be a wholly effective loss prevention device. … The more accurately liability insurance premiums differ among policyholders on the basis of their risk of incurring liability, the more consistent such insurance will be with loss prevention, but the less loss spreading this insurance will entail.207

Palmer, writing in the 1970s after his experience with the two Woodhouse reports, concluded: I began as a firm believer in the validity of the theory [that is, that costs should be internalised to act as a deterrent]; I have ended up as a sceptic as to whether any scheme capable of implementation will achieve much by way of economic deterrence, at least so long as it is attached to a compensation scheme. Knowledge about accident prevention is, however, in such a primitive state, that anything offering a hope of reducing accidents should be tried.208

1.6.9 Some support for the theory of general deterrence within the present tort context may be gleaned from the judgment of Murphy J in Todorovic v Waller 8.2.1. He said this: [T]he courts should not continue, by giving less than full restitution, to reduce the pressure for measures to reduce the

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accident toll. The judicial policy of depressing damage awards means that insurance premiums are kept within tolerable limits even with very high rates of death and injuries. It obscures the true social costs. The unintended result is a social acceptance of a high rate of road and industrial deaths and injuries, which would not be acceptable if the premiums reflected the implementation of full restitution. In practice therefore, this judicial policy has contributed to the high rate of deaths and injuries …. If the principle of full restitution had been observed, the demand for action to reduce the deaths and injuries would have been irresistible. The sensible answer to this very serious social problem lies not in artificial transfer of the social costs to the injured persons, but in reduction of the avoidable causes including unsafe vehicles, unsafe roads, unsafe driving and unsafe industrial systems and equipment (at 453–4).

See also the dissenting judgments of McHugh and Kirby JJ in Woods v Multi-Sport Holdings Pty Ltd 3.1.51 at [71] and [108] respectively.

Resources allocation and the ‘Coase theorem’ 1.6.10 Economic analysis is not, however, confined to questions related to the financing of compensation or the measure of damages. Let us imagine ourselves back in the days of early colonial Australia. In one area, one might find dairy and beef farmers, in another wheat-growers. As long as they are not close together, no harm is suffered from each pursuing their respective interests. Bring them close together and the cattle tend to get into the wheat fields and do damage. Who should put up a fence? Should the cattle-farmer fence the cattle in or the wheat-farmer fence them out? This appears to have been a matter of great controversy in Australia, as it was in the United States. In many jurisdictions, it is now resolved by legislation.

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[page 82] Whether there is any legislation on the point, the law of torts may have to resolve a dispute between two neighbouring farmers. In those states where cattle trespass is still a tort of strict liability (see 15.2.1), the cattle-farmer will be held liable to pay damages for the loss sustained by the wheat-farmer. To prevent further loss, the cattle-farmer will erect the fence; but only if the cost is less than the damages likely to be payable (and less than the cost of any alternative methods of keeping the cattle out of the crops that may be available). On the other hand, if cattle trespass has been abolished and it is held not to be negligent for the cattle-farmer to allow the cattle to roam, the wheat-farmer will erect the fence; but again, only if the cost is less than the damage the cattle are likely to cause (and less than the cost of alternatives). On this argument, it does not matter for the allocation of the community’s resources whether the law places responsibility on the wheat-farmer or the cattle-farmer: the fence will be erected when it saves more than it costs; otherwise it will not be erected. On the other hand, if the government were to pay a bounty for fencing, one of the parties might erect the fence even when the actual cost of doing so is greater than the cost of the wheat destroyed, since the cost to that party might be less. The ‘externality’ of the government bounty here

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produces a misallocation of resources.

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1.6.11 The assumption so far has been that there is only one fence that could be erected. Assume, however, that a fence round the wheat-farm would be much shorter — and therefore cheaper — than one round the cattle-farm, though both are cheaper than the loss of wheat or any alternative. Now, it might appear that the law of torts could make a difference: if the loss were left to lie on the wheat-farmer, the cheaper fence would be erected, but if it were shifted to the cattle-farmer, rather than pay damages, that party would erect the more expensive fence, thereby wasting some of the community’s resources. But this is not necessarily so. According to the ‘Coase theorem’ (see R H Coase, ‘The Problem of Social Cost’ (1960) 3 J of Law & Econs 1) there would still not be any misallocation of resources, because rather than erect the longer fence, the cattle-farmer would pay the wheatfarmer to erect the shorter fence. Thus, to whichever party the law allocates the loss, the cheapest method of avoiding it will be adopted, provided that that is less expensive than the loss caused by the clash of activities. 1.6.12 The Coase theorem depends on the absence of what are called ‘transaction costs’. Assume that the damage likely to be caused by the cattle is $10,000, the cost of the cheaper fence is $8000 and the cost of the more expensive fence is $9000. Assume, further, that the cost of an agreement between the wheat-farmer and the cattle-farmer as to who should erect the fence is $1500. In such circumstances, if the law allocates the loss to the wheat-farmer by holding that there is no liability in tort, a fence costing $8000 will be erected; whereas if the law allocates the loss to the cattle-farmer by holding that there is liability for cattle trespass, it is cheaper for that party to erect a fence costing $9000 than to pay the wheat-farmer $8000 and to bear the legal expenses of $1500, a total of $9500. Thus, although the loss will still be avoided as long as the cost of avoidance plus transaction costs remains less than the likely loss, the cheapest method of avoiding the loss will not be adopted unless the law places the initial responsibility on the person able to adopt that cheapest method. It is therefore argued by some economic analysts that wherever transaction costs may be significant, the aim of the law of torts should be to place the loss on that party who is likely to be the cheapest loss-avoider (or the person in the best position to pay — or ‘bribe’ — the cheapest loss-avoider to act), unless there are clear reasons of justice or loss-distribution which would make it unfair to do so. See, for example, H Demsetz, ‘When Does the Rule of Liability Matter?’ (1972) 1 J of Leg Studs 13. 1.6.13 The Coase theorem also depends on the various parties having full knowledge. For instance, although in our example of the cattle-farmer and the wheat-farmer, the cost of the respective fences may be readily ascertainable, how can one accurately estimate the value of the wheat that may be destroyed if no fence is erected, especially when the destruction will take place over a period extending into the future? Also, the theory states that, if it would cost the cattle-farmer $9000 to erect the fence

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[page 83] and the wheat-farmer only $8000, the former would, rather than pay damages of $10,000 or erect a $9000 fence, pay the wheat-farmer up to $8999 for the latter to erect the fence. In practice, however, ‘strategic bargaining’ may lead the wheat-farmer to hold out for some higher sum and result in the end in the more expensive fence being built.

Criticism of the economic approach

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1.6.14 The economic theory of resource allocation and general deterrence contains many questionable assumptions concerning human behaviour: see the cultured and incisively funny commentary on the first edition of Posner’s Economic Analysis of Law by A Leff, ‘Economic Analysis of Law: Some Realism about Nominalism’ (1974) 60 Virg L Rev 451; see also J A Lachman, ‘Knowing and Showing Economics and Law’ (1984) 93 Yale LJ 1587, a review of A M Polinsky, An Introduction to Law and Economics, 1983. In its purest form, it also requires the existence of a free market and perfect knowledge, which do not occur in real life. Subsidies, taxes, monopolies and government regulation are far more likely to affect a particular decision than the relatively small damage costs that might or might not be incurred. Thus many other factors are likely to have a much more significant impact on the type of television screen bought than who bears the cost of occasional fires. According to economics itself, the theory of the ‘second best’ postulates that where the market is distorted by a number of factors, the removal of one distorting factor (such as the externalisation of injury costs) will not necessarily lead to greater efficiency since the particular externality may be counteracting another distorting factor: compare J A Henderson Jr, ‘Extending the Boundaries of Strict Products Liability: Implications of the Theory of the Second Best’ (1980) 128 U of Penn L Rev 1036. Nevertheless, one hesitates to dismiss as irrelevant to the law of torts the whole literature of economic analysis, despite the undoubted truth of the following statement: There is something paradoxical, almost comical, about the fact that in the last decade or so, the main thrust of the literature on this question has concerned the highly abstract and theoretical economic arguments about efficiency in the resource allocation sense. Once it had been thoroughly and convincingly demonstrated that the torts system was, by any comparable standard, highly inefficient in practice, new legal and economic theorists appeared on the scene to assure us that it was, nevertheless, extremely efficient in theory (P S Atiyah, ‘No-Fault Compensation: A Question that will not Go Away’ (1980) 54 Tulane L Rev 271 at 279).

It has been shown convincingly that the judges who developed the law of torts did not have resource allocation, but justice, in mind: A W B Simpson, ‘Coase v Pigou Re-examined’ (1996) 25 J of Leg Studs 53. A debate between Simpson and Coase followed. For insights to be drawn from this debate, see D Campbell and M Klaes, ‘What Did Ronald Coase Know About the Law of Tort?’ (2016) 39 MULR 793. 1.6.15 In Northern Sandblasting Pty Ltd v Harris 2.5.6, Kirby J opened his judgment by

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referring to the paucity of economic evidence available to the court in making decisions dependent on policy. Extra-judicially he called for such evidence to assist the High Court in developing the law. He attributed the increased awareness of the court of the economic consequence of its decisions to the influence of John Fleming.209 McHugh J, too, showed an awareness of the economic factor: see, for example, his judgment in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) 16.2.26. On the other hand, extrajudicially, Sir Anthony Mason remarked on the difficulties a court has in coping with such evidence and concluded that he had ‘serious misgivings’ about the application or adoption of economic analysis. He found that it was merely ‘another voice questioning tentative [page 84] conclusions and suggesting possible alternatives’.210 Nevertheless, economic analysis should remind us that we cannot eliminate all injuries and that instead one of our goals should be the reduction of the sum of injury costs, injury prevention costs and injury administration costs.

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7 GENDER, TORT LAW AND FEMINIST LEGAL THEORY211 1.7.1 We set out at 1.1.1–1.1.9 the incidence and nature of personal injuries suffered in Australia. Men and women do not suffer personal injuries statistically in identical or often even similar ways.212 Women are considered to be significantly more risk averse than men.213 Men are injured and killed more than women, particularly from injuries which arise from risk-taking behaviours and hazardous occupations.214 They also suffer particular kinds of physical personal injuries far more frequently than women. However, women suffer more injuries than men in categories often not well compensated (or compensated at all) by the tort system such as mental illness, injuries in the home and injuries caused by domestic violence and sexual assault. 1.7.2 Overall, in 2012–13 men were hospitalised 250,440 times for injuries, while women were hospitalised 196,223 times, a male to female ratio of 1.3:1.215 Men are injured or die in road crashes at rates much higher than women.216 Severe spinal cord injuries, such as those suffered in swimming and diving accidents,217 and accidents from contact sports such as rugby,218 are far more common in men than women.219 Overall, men suffer injuries in the workplace at a much higher rate than women.220 1.7.3 However, some forms of personal injury or illness are more common in women, including some mental disorders, such as anxiety and depression;221 workplace stress injuries;222 falls, including those

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[page 85] in the home;223 injuries resulting from sexual assault, inter-familial assault and domestic violence;224 birth-related injuries; and injuries from toxic products such as breast implants and reproductive control devices.225 Women are also far more likely than men to undergo cosmetic surgery.226 Claims against medical practitioners arising from negligent cosmetic surgery have a very high claim frequency compared to other medical specialities.227 Women are also more likely than men to be primary carers of others with personal injuries, with women constituting 68.1 per cent of primary caregivers of the disabled and aged in Australia.228 1.7.4 The tort law system also appears to deal with claims by female plaintiffs differently from the way in which it deals with claims made by male plaintiffs. Some research suggests that women may litigate their claims at lower rates than men.229 Other studies have suggested that where women do litigate ‘there is a disproportionate rate of recovery for women and men’, with women less likely

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[page 86] to gain compensation.230 Tort law has been criticised for failing to value the loss or damage women suffer when injured and for awarding women less than for similar injuries suffered by men.231 Tort law principles have traditionally responded more readily to the realm of the physical injuries suffered disproportionately by men, such as workplace physical injury, and road crash injury.232 As discussed above, men suffer a much larger number of personal injuries in motor vehicles and in the workplace than women and accordingly draw on the insurance pool at a rate that is disproportionate to the contributions made to the insurance pool on their behalf. In other words, the funds contributed to the insurance pool in respect of female workers and female motorists are assisting to pay for claims by male workers and male motorists, given that compulsory insurance premiums are not different for different genders. However, the nature of the claims more often suffered by women such as birth-related injuries (see 7.2.17–7.2.22), workplace stress injuries (see 7.8.14), and injuries caused by intentional torts such as sexual assault and domestic violence (see 11.4.18–11.4.30) have been seen by courts as novel and difficult. In addition, for many of the injuries suffered by women, such as those suffered in the home, tort law has never provided a remedy. In the absence of liability insurance or compulsory insurance, actions for intentional torts arising out of sexual assault may be financially ruinous and result in no compensation for the plaintiff: Moon v Whitehead 11.4.29. 1.7.5 An example of an unsuccessful attempt by a female plaintiff who suffered a serious assault to access damages through a compulsory motor vehicle insurance scheme occurred in Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

Casalino v Insurance Australia Ltd (2007) Aust Torts Reports 81-886 (ACT SC). The plaintiff was carjacked in the Australian Capital Territory and then assaulted by an unknown assailant. She suffered acute stress disorder and post-traumatic stress disorder as a result. She attempted to recover compensation through the operation of the Australian Capital Territory compulsory motor vehicle insurance scheme on the basis that she had suffered injury arising out of the use of an insured vehicle. However, Connolly J refused her claim on the basis that such crimes do not ‘arise out of the use of a motor vehicle’, and are better dealt with under criminal injury compensation schemes: compare 1.4.23. The unsatisfactory result is that plaintiffs accidently injured through a motor vehicle accident are able to access better compensation than those plaintiffs, predominantly female, who are violently and unlawfully assaulted through sexual assault or domestic violence involving a motor vehicle. A further example of the injustice that arises from the inability of women who are victims of sexual assault or domestic violence to recover adequate compensation was referred to by the Productivity Commission in its recent report on disability care and support. It referred to the submission made to its inquiry in relation to a woman who had been catastrophically injured when bashed by her ex-boyfriend: She was left with a severe brain injury, and we were told that she would not improve and the only option offered to us, which we believe was due to the fact that [she] was a victim of crime with no compensation, was an aged nursing home …. The physios in intensive care said she needed botox and plastering, this was not done. The lack of these procedures has had a enormous effect on her wellbeing and rehabilitation. If these things had been done early [she] would not have had to suffer years of pain and suffering as she has had to due to the fact she didn’t have the funding.233

1.7.6 Courts have also been criticised for failing to consider evidence relevant to the lives of women in cases where it is particularly relevant, such as in wrongful birth and life cases. For example,

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[page 87] the Australian wrongful birth case of Cattanach v Melchior 7.2.18C was a case essentially concerning the reproductive autonomy of women and the effect on women’s lives of childbearing and childrearing. Despite this, there was virtually no discussion by the judges of the High Court of Australia of the gendered nature of the effects of parenting, with only Kirby J noting the relevance of the effect of children on women’s lives: at [162]. Social science research has made it clear that the effects of parenting are not generic or genderneutral, with parenting still having a greater impact on the lives and careers of mothers than fathers.234 Courts sometimes recognise in tort cases that the social and economic position of women in Australian society has positively changed.235 However, these assumptions can be ‘aspirational’ in nature, failing to recognise that there are still major social and financial inequalities between Australian men and women.236 1.7.7 Feminist theorists have developed a wide and varied critique of the tort system on a Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

number of bases, including that the tort system fails to recognise the gendered nature of personal injuries, fails to encourage or allow women to recover through the tort system in the same manner as men would, and incorporates legal principles which reflect male rather than female understandings of how the world should operate. The following extract introduces a number of strands of the feminist critique of tort law. 1.7.8E

A Lawyer’s Primer on Feminist Theory and Tort L Bender (1988) 38 J of Legal Ed 3–37

[Footnotes omitted.] … Feminist insights and methodology have guided my thinking in the area of tort law, especially in examining negligence law to see how it perpetuates traditional male values and perspectives. Tort law needs to be more of a system of response and caring than it is now. Its focus should be on interdependence and collective responsibility rather than on individuality, and on safety and help for the injured rather than on ‘reasonableness’ and economic efficiency. Feminism raises questions about both the external structure of our negligence analysis — how we frame our understanding of negligence problems — and its internal categories, such as duty and the standard of care. My reflections on negligence law are interwoven with a primer on feminist theory in order to suggest how feminist theory can help us think about the traditional structures of our laws, legal analyses, and legal system …. Introduction to feminist methodologies and terminology … There are many feminisms, all with distinctive priorities. Although their strategies for bringing about change may vary, each focuses on women and matters that concern women, particularly women’s oppression and its elimination. Some feminists believe that open access to the male world and fair assessment of our accomplishments by its measures will solve the problem. Others believe that the experience of women’s subordination will not be

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[page 88] resolved without fundamental changes in our institutions and power structures. Many feminists believe that problems of gender cannot be successfully confronted in isolation but must be coordinated with analyses of other kinds of oppression, such as class and race. Still other feminists study differences, understanding that because difference is relational and not an attribute of one person or thing it must not be used to justify hierarchies of power. Feminists do not all think in the same way or even about the same kinds of problems …. Much of feminist theory begins by describing, defining, and exposing patriarchy. ‘Patriarchy’ is the feminist term for the ubiquitous phenomenon of male domination and hierarchy. It means that men have had the bulk of the power and have used that power to subordinate women, but not that every man has used his power to exploit, disadvantage, or undermine women. Nonetheless, men have clearly been in control, and it is indisputable that in Western civilisation white men have had social, economic and political power. Their power is not only manifest in the political and economic world; it also governs families and sexual relationships. Traditionally patriarchy relegated women to the private sphere of unpaid or underpaid labour, in which we are often also left unprotected from domestic abuse. And if you are male, whether or not you are a blatant user of the power, whether you are sexist or a feminist, you benefit from patriarchy just as whites benefit from systemic racism. But the momentary, ostensible benefits are greatly outweighed by the permanent and serious harm to all of us. Until patriarchy is exorcised, our civilisation is ill and we all lose. We cannot recover until we understand all manifestations of this festering social disease and can instantly identify its symptoms …. In its most blatant forms, we can all recognise patriarchy and sexism …. A United States Supreme Court decision upheld the denial of bar admission to women because our natures were thought to render us unfit for civil occupations ….

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Men have constructed an adversary system, with its competitive, sparring style, for the resolution of legal problems. In many ways it is an intellectualised substitute for duelling or mediaeval jousting. Much of legal practice is a win-lose performance, full of one-upmanship and bravado. If it were to turn out that competitive sparring is not the way a majority of women function most effectively, then within patriarchy’s terms it could be concluded that women are not well suited for legal practice. But rather than regarding legal practice as fixed, we can question whether a competitive, win-lose approach is necessary and examine how it has been modelled by men in their own image. When we look anew for methods for resolving conflicts, we may decide that win-lose, adversary methods are not the only, or not the best, or even not a preferable method for dispute resolution. Perhaps we could design alternative models that incorporate the perspectives of women and men. The role of patriarchy within the construction of substantive law as it affects all women is even more deleterious than its effect upon women practising law …. Intraspousal and intrafamilial tort immunities shrouded domestic violence against women and children from legal redress …. Because our legal system has developed from an unstated male norm, it has never focussed adequately on harms to women …. Negligence law: the ‘reasonable person’ standard as an example of male naming and the implicit male norm That implicit male norms have been used to skew legal analysis can be seen in tort negligence law. To assess whether a defendant’s conduct is negligent, and hence subject to liability, we ask whether the defendant has a duty to the plaintiff and whether she has met the legally required standard of conduct or care. ‘Standard of care’ is a term of art in the law. It is alternatively described as the care required of a reasonably prudent person under the same or similar circumstances, or of a reasonable person of ordinary prudence, an ordinarily prudent man, or a man of average prudence. Prosser and Keeton explain the standard as some ‘blend of reason and caution’. A ‘reasonable person’ standard is an attempt to establish a universally applicable measure for conduct. This reasonable person is a hypothetical construct, not a real person, and is allegedly objective rather than subjective. Not surprisingly, the standard was first articulated as a reasonable man or man of ordinary prudence. Recognising the original standard’s overt sexism, many courts and legal scholars now use a ‘reasonable person’ standard. My concern with the ‘reasonable person’ standard is twofold. Does converting a ‘reasonable man’ to a ‘reasonable person’ in an attempt to eradicate the term’s sexism actually exorcise the sexism or instead embed it? My second concern is related. Should our standard of care focus on ‘reason and caution’ or something else? It was originally believed that the ‘reasonable man’ standard was gender neutral. ‘Man’ was used in the generic sense to mean person or human being. But man is not generic except to other men. Would men regard

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[page 89] a ‘prudent woman’ standard as an appropriate measure of their due care? As our social sensitivity to sexism developed, our legal institutions did the ‘gentlemanly’ thing and substituted the neutral word ‘person’ for ‘man’. Because ‘reasonable man’ was intended to be a universal term, the change to ‘reasonable person’ was thought to continue the same universal standard without utilising the gendered term ‘man’. The language of tort law was neutered, made ‘politically correct’, and sensitised. Although tort law protected itself from allegations of sexism, it did not change its content and character. This ‘resolution’ of the standard’s sexism ignores several important feminist insights. The original phrase ‘reasonable man’ failed in its claim to represent an abstract, universal person. Even if such a creature could be imagined, the ‘reasonable man’ standard was postulated by men, who, because they were the only people who wrote and argued the law, philosophy, and politics at that time, only theorised about themselves. When the standard was written into judicial opinions, treatises, and casebooks, it was written about and by men. The case law and treatises explaining the standard are full of examples explaining how the ‘reasonable man’ is the ‘man on the Clapham Omnibus’ or ‘the man who takes the magazines at home and in the evening pushes the lawn mower in his shirt sleeves’. When the authors of such works said ‘reasonable man’, they meant ‘male’, ‘man’ in a gendered sense. The legal world that generated the ‘reasonable man’ was predominantly, if not wholly, male. What other connotations or meanings could the phrase have had? When it was converted to ‘reasonable person’, it still meant ‘person who is reasonable by my standards’ almost exclusively from the perspective of a male judge, lawyer, or law professor, or even a female lawyer trained to be ‘the same as’ a male lawyer. Changing the word without changing the underlying model does not work. Specifically addressing the ‘reasonable

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person’ tort standard, Guido Calabresi challenges whether the ‘reasonable person’ is in any way meant to include women or, for that matter, people of non-WASP beliefs or attitudes. Calabresi explains that use of a universal standard is intended to cause those who are ‘different’ from that standard to adopt the dominant ideological stance. Like the notion of America as a melting pot, the reasonable person standard encourages conformism and the suppression of different voices. Not only does ‘reasonable person’ still mean ‘reasonable man’ — ‘reason’ and ‘reasonableness’ are gendered concepts as well. Gender distinctions have often been reinforced by dualistic attributions of reason and rationality to men, emotion and intuition (or instinct) to women. Much of Western philosophy is built on that distinction …. These are but isolated examples of a continuous tendency in our Western culture to define ‘woman’ by an absence of developed rationality or, at best, by an inferior capacity to reason. If we have been culturally and socially informed by a concept of ‘woman’ that does not correlate with notions of reason or reasonableness, then how is the phrase ‘reasonable person’ or the notion of ‘reasonableness’ as a tort standard of conduct going to connote women’s thinking, values, attitudes, or approaches to problem solving? We would be hard pressed today to find many people who would openly assert that women cannot be reasonable. Today we are taught to consider women reasonable when they act as men would under the same circumstances, and unreasonable when they act more as they themselves or as other women act. If it is true that somewhere, at some subconscious level, we believe men’s behaviour is more reasonable and objective than women’s, then changing the phrase ‘reasonable man’ to ‘reasonable person’ does not really change the hypothetical character against whom we measure the actors in torts problems. By appending the very term ‘reasonable’, we attach connotations and characteristics of maleness to the standard of conduct. If we are wedded to the idea of an objective measure, would it not be better to measure the conduct of a tortfeasor by the care that would be taken by a ‘neighbour’ or ‘social acquaintance’ or ‘responsible person with conscious care and concern for another’s safety’? Perhaps we have gone astray in tort-law analysis because we use ‘reason’ and caution as our standard of care, rather than focusing on care and concern. Further study of feminist theory may help to suggest how a feminist ethic can affect our understanding of standards of care in negligence law …. A feminist ethic of caring and interconnectedness The concept of an ethic based on care and responsibility informs a great deal of feminist scholarship. Carol Gilligan suggests that women’s moral development reflects a focus on responsibility and contextuality, as opposed to men’s, which relies more heavily on rights and abstract justice. After studying responses to interview questions in three studies …, Gilligan recognised that there are two thematic approaches to problem

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[page 90] solving that generally correlate with gender, although she makes no claims about the origin of the difference. Traditional psychological and moral-development theory recognises and rewards one approach but undervalues or fails to define the other, the approach Gilligan calls ‘a different voice’. When she asked what characterises the different methods for resolving and analysing moral dilemmas, Gilligan found that the ‘right’ answers (according to the traditionally formulated stages of moral development) involve abstract, objective, rule-based decisions supported by notions of individual autonomy, individual rights, the separation of self from others, equality, and fairness. Often the answers provided by women focus on the particular contexts of the problems, relationships, caring (compassion and need), equity, and responsibility. For this different voice ‘responsibility’ means ‘response to’ rather than ‘obligation for’. The first voice understands relationships in terms of hierarchies or ‘ladders’, whereas the ‘feminine’ voice communicates about relationships as ‘webs of interconnectedness’…. Our legal system must learn from Gilligan’s study; it must attend to the relationships between people, our interdependencies and interconnectedness, to our responsibilities for and toward one another, and to the need to be responsive and caring. It must also recognise that it has been formulated in one voice, the masculine voice, and that it must listen to the meanings of different voices and reconstitute itself accordingly. If we are willing to accept the implications of Gilligan’s study, that is, that women have developed different ethical priorities and approaches to experience, then how does a feminist perspective help us think about negligence law? Negligence law: a feminist ethic of care and concern as a basis for the standard of care Luntz, Harold. Torts Cases and Commentary, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/monash/detail.action?docID=6221428. Created from monash on 2021-02-01 10:23:20.

Our traditional negligence analysis asks whether the defendant met the requisite standard of care to avoid liability. As I have suggested, if we continue to feel obliged to apply a ‘universal’ standard, we might be better off if we at least expect people to act not as ‘reasonable persons’ but as ‘responsible neighbours’ or with the care and concern of ‘social acquaintances’. But figuring out against whom we should measure our conduct is only a partial solution to the problem. We also need to determine what standard of care to apply and what conduct is negligent or falls below that standard. In tort law we generally use the phrase ‘standard of care’ to mean ‘level of caution’. How careful should the person have been? What precautions do we expect people to take to avoid accidents? We look to the carefulness a reasonable person would exercise to avoid impairing another’s rights or interests. If a defendant did not act carefully, reasonably, or prudently by guarding against foreseeable harm, she would be liable. The idea of care and prudence in this context is translated into reasonableness, which is frequently measured instrumentally in terms of utility or economic efficiency. When the standard of care is equated with economic efficiency or levels of caution, decisions that assign dollar values to harms to human life and health and then balance those dollars against profit dollars and other evidences of benefit become commonplace. Such cost-benefit and risk-utility analyses turn losses, whether to property or to persons, into commodities in fungible dollar amounts. The standard of care is converted into a floor of unprofitability or inefficiency. People are abstracted from their suffering; they are dehumanised. The risk of their pain and loss becomes a potential debit to be weighed against the benefits or profits to others. The result has little to do with care or even with caution, if caution is understood as concern for safety. There is another possible understanding of ‘standard of care’ that conforms more closely to Gilligan’s ‘different voice’, an alternative perspective rooted in notions of interconnectedness, responsibility, and caring. What would happen if we understood the ‘reasonableness’ of the standard of care to mean ‘responsibility’ and the ‘standard of care’ to mean the ‘standard of caring’ or ‘consideration of another’s safety and interests’? What if, instead of measuring carefulness or caution, we measured concern and responsibility for the well-being of others and their protection from harm? Negligence law could begin with Gilligan’s articulation of the feminine voice’s ethic of care — a premise that no one should be hurt. We could convert the present standard of ‘care of a reasonable person under the same or similar circumstances’ to a standard of ‘conscious care and concern of a responsible neighbour or social acquaintance for another under the same or similar circumstances’. The legal standard of care may serve as the minimally acceptable standard of behaviour, failing which one becomes liable. But the standard need not be set at the minimum — we do not need to follow Justice Holmes’ advice and write laws for the ‘bad man’. Have we gained anything from legally condoning behaviour that causes

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[page 91] enormous physical and mental distress and yet is economically efficient? The law can be a positive force in encouraging and improving our social relations, rather than reinforcing our divisions, disparities of power, and isolation. The recognition that we are all interdependent and connected and that we are by nature social beings who must interact with one another should lead us to judge conduct as tortious when it does not evidence responsible care or concern for another’s safety, welfare, or health. Tort law should begin with a premise of responsibility rather than rights, of interconnectedness rather than separation, and a priority of safety rather than profit or efficiency. The masculine voice of rights, autonomy, and abstraction has led to a standard that protects efficiency and profit; the feminine voice can design a tort system that encourages behaviour that is caring about others’ safety and responsive to others’ needs or hurts, and that attends to human contexts and consequences. It is not a simple matter to establish a standard dependent upon caring. Certainly we all care differently for family and friends than we do for strangers. The closer or more intimate the relationship, the greater our duty of care to that person. Tort liability would be greatest for conduct falling below the accepted standard of ‘care’ within families; that is, when family members do not act responsibly for one another’s safety. Of course we could not possibly have the energy to care about every person as we do our children or lovers. But this tort standard does not require caretaking in the sense of nurturing. It is a conscious concern for the consequences our actions or inactions might have on another’s safety or health. We can develop an awareness of the health and safety of others in all our activities without exhausting our ability to care. There is a considerable distance between the law’s current standard of care and a standard that might exceed our capabilities. A standard that would make us duty-bound to act responsibly and assure that our behaviour does not

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harm someone else is not beyond us. The law should not permit us casually to cast aside another’s safety, health, or interests because we do not personally know the random person who might be injured. Just as we would not want ‘strangers’ to discount the human consequences of their actions to someone about whom we care, we must recognise that the person we affect by our ‘carelessness’ is interconnected to other people as well — family, friends, colleagues, neighbours, communities. Through a feminist focus on caring, context, and interconnectedness, we can move beyond measuring appropriate behaviour by algebraic formulae to assessing behaviour by its promotion of human safety and welfare. This approach will clearly lead to liability for some behaviours for which there was none before. If we do not act responsibly with care and concern for others, then we will be deemed negligent. Just as we can now evaluate behaviour as negligent if its utility fails to outweigh its risks of harm, we could evaluate behaviour as negligent if its care or concern for another’s safety or health fails to outweigh its risks of harm. From a feminist perspective the duty of care required by negligence law might mean ‘acting responsibly towards others to avoid harm, with a concern about the human consequences of our acts or failure to act’. It is tragic that our law has been insightful enough to use the language of care but has understood it as only carefulness or acting with caution. If the law imposed a duty of care and concern towards others’ safety, orienting our behaviour toward avoiding and preventing harms to others, and making it impossible for us to dismiss the consequences of our acts to people we do not directly know, our tort law would take on new dimensions. [The author then discussed ‘no duty’ cases as an example of how a feminist ethic of care, responsibility and interconnectedness might inform tort law. In this context she wrote:] We probably all remember our torts professors posing hypotheticals about whether one has a legal duty to rescue a drowning stranger by throwing her an available lifesaver. … How could there be no duty to rescue? How could standing by and watching another drown be lawful? Each year that I teach torts I watch again as a majority of my students initially find this legal ‘no duty’ rule reprehensible. After the rationale is explained and the students become immersed in the ‘reasoned’ analysis, and after they take a distanced, objective posture informed by liberalism’s concerns for autonomy and liberty, many come to accept the legal rule that intuitively had seemed so wrong to them. They are taught to reject their emotions, instincts, and ethics, and to view accidents and tragedies abstractly, removed from their social

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[page 92] and particularised contexts, and to apply instead rationally-derived universal principles and a vision of human nature as atomistic, self-interested, and as free from constraint as possible. They are taught that there are legal relevant distinctions between acts and omissions. How would this drowning-stranger hypothetical look from a new legal perspective informed by a feminist ethic based upon notions of caring, responsibility, interconnectedness, and cooperation? If we put abstract reasoning and autonomy aside momentarily, we can see what else matters. In defining duty, what matters is that someone, a human being, a part of us, is drowning and will die without some affirmative action. That seems more urgent, more imperative, more important than any possible infringement of individual autonomy by the imposition of an affirmative duty. If we think about the stranger as a human being for a moment, we may realise that much more is involved than balancing one person’s interest in having his life saved and another’s interest in not having affirmative duties imposed upon him in the absence of a special relationship, although even then the balance seems to me to weigh in favour of imposing a duty or standard of care that requires action. The drowning stranger is not the only person affected by the lack of care. He is not detached from everyone else. He no doubt has people who care about him — parents, spouse, children, friends, colleagues; groups he participates in — religious, social, athletic, artistic, political, educational, workrelated; he may even have people who depend upon him for emotional or financial support. He is interconnected with others. If the stranger drowns, many will be harmed. It is not an isolated event with one person’s interests balanced against another’s. When our legal system trains us to understand the drowning-stranger story as a limited event between two people, both of whom have interests at least equally worth protecting, and when the social ramifications we credit most are the impositions on personal liberty of action, we take a human situation and translate it into a cold, dehumanised algebraic equation. We forget that we are talking about human death or grave physical harms and their reverberating consequences when we equate the consequences with such things as one person’s momentary freedom not to act. People are decontextualised for the analysis, yet no one really lives an acontextual life. …

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Other tort applications of feminist theory A feminist critique of tort law questions how we structure our legal understanding of accidents, the definitions we use, the content of our classifications, the perspectives from which they are made, and their internal components …. Other questions are more systemic and focus on the legitimacy of the entire analytical framework, not just on the meanings of the questions we ask and the terms we use, but on which questions we choose to ask and in what order; on whose and what kinds of interests are protected or recognised, and whose or what kinds are not ‘legally cognisable’; on permissible and impermissible problem-solving processes; on who counts as a ‘party’ to situations causing accidental harms, and therefore who may be asked to contribute to solutions. Why, for instance, do tort damages recognise financial loss and yet remain reluctant to recognise relational loss, such as loss of the companionship of a child, or intangible harms, such as an increased risk of cancer or loss of a less-than-even chance of survival? Why are tort remedies all translated into money values instead of other forms of compensation? Why do we settle for the ease of monetary payment (particularly insurance premiums) instead of requiring tortfeasors to take fuller and more personally active responsibility for the harms they cause? How does tort analysis serve to perpetuate existing power hierarchies? Feminist critiques challenge the implicit assumptions in the very structure of the analysis we use. Conclusion I have presented an overview of some major components of feminist theory and have illustrated how they can be used to critique tort law, focussing in particular on a standard-of-care analysis. The same method can be used to examine many other aspects of negligence and tort law. Feminist themes — a responsibility-oriented ethics, a focus on contextuality and interconnectedness, attention to the power of naming and biases in our language, the inclusion of all voices in the generation of knowledge, an opposition to dualisms, the cry for empowerment of women and an end to our subordination, the critical questioning of all our implicit assumptions, a struggle against hierarchies of power, and an appreciation of difference as a relationship and not an attribute — are critical to a ‘re-vision’ of our tort-law system. Feminist theory helps us understand how tort [page 93]

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law has been developed in the language of male orderings, values, power structures, and interests. A proposed revision of tort law would require new categories of analysis, new words, new perspectives, and new values. Our current language ignores many relevant but previously unacknowledged, uncredited ‘voices’ or interests that must be included in the resolution of personal injury problems. These must be named. The hidden patriarchal assumptions must be exposed. We have to eliminate the power structures that perpetuate domination and subordination within tort law. There is a lot of work to be done.

Notes 1.7.9 While the Bender extract introduces a number of key strands of the feminist critique, later feminist critiques have also dealt with issues such as women and mass tort claims, tort remedies and gendered calculation of damages, recognition of the value of care services provided to personal injury victims, understandings of injury and harm, wrongful birth and life, psychiatric harm, sexual assault, inter-familial sexual abuse, gendered concepts of causation, tort remedies for domestic violence and sexual harassment, and tort remedies for medical procedures on women without consent. See L Bender, ‘An Overview of Feminist Torts Scholarship’ (1993) 78 Cornell L Rev 575; ‘Feminist (Re) Torts: Thoughts on the Liability Crisis, Mass Torts, Power and Responsibilities’ [1990] Duke LJ 848; L M Finley, ‘A Break in the Silence: Including Women’s Issues in a Torts Course’ (1989) 1 Yale J of L and

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Feminism 41; J Conaghan, ‘Gendered Harms and the Law of Tort: Remedying (Sexual) Harassment’ (1996) 16 OJLS 407; Australian Law Reform Commission, Equality before the Law: Justice for Women, ALRC No 69, 1994, especially Pt II, paras 11.4 ff (Compensation for Personal Injury), (last accessed 14 February 2017); R Graycar, ‘Hoovering as a Hobby and Other Stories: Gendered Assessments of Personal Injury Damages’ (1997) 31 UBC Law Rev 17; R Graycar and J Morgan, The Hidden Gender of Law, 2nd ed, Federation Press, Leichhardt, NSW, 2002; R Graycar, ‘Putting Gender on the Damages Agenda: Michael Chesterman’s Contribution to Accident Compensation’ in K F Sin (ed), Legal Explorations: Essays in Honour of Professor Michael Chesterman, Lawbook Co, Sydney, 2003, p 140; J Conaghan, ‘Tort Litigation in the Context of Intrafamilial Abuse’ (1998) 61 MLR 132; ‘Law, harm and redress: A feminist perspective’ (2002) 22 LS 319; J Wriggins, ‘Toward a Feminist Revision of Torts’ (2005) 13 J Gender, Social Policy and the Law 139; J Richardson and E Rackley (eds), Feminist Perspectives on Tort Law, Routledge, Oxford, 2012; J Richardson, ‘The Concept of Harm in Actions for Wrongful Birth: Nature and Pre-Modern Views of Women’ (2011) 35 AFLJ 127; F Hum, ‘Medical and Tort Injuries Against Pregnant Women’ in P Eastel (ed), Women and the Law in Australia, LexisNexis, Sydney, 2010, Ch 17; P Vines, M San Roque and E Rumble, ‘Is “Nervous Shock” Still a Feminist Issue? The Duty of Care and Psychiatric Injury in Australia’ (2010) 18 Tort L Rev 19; P Stewart and A Stuhmcke, ‘Lacunae and Litigants: A Study of Negligence Cases in the High Court of Australia in the First Decade of the 21st Century and Beyond’ (2014) 38 MULR 151; K Stevenson, J Rowbotham and J Lowther, ‘Reparation for Betrayal of Trust in Child Sexual Abuse Cases: The Christian Duty of Care, Vicarious Liability and the Church of England’ (2015) 41(2) AFLJ 253.

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1.7.10 For a more critical assessment of feminist critique of tort law, see G T Schwartz, ‘Feminist Approaches to Tort Law’ [2000] Theoretical Inquiries in Law 175. See also a response to Schwartz by Conaghan in J Conaghan, ‘Tort Law and Feminist Critique’ (2003) 56 CLP 175.

Women and tort law reforms 1.7.11 As noted at 1.1.12, there have been substantial reforms to Australian tort law since 2002. Recent American studies have argued that particular kinds of tort reform disproportionately affect [page 94] claims by women, children, the poor and the elderly.237 Legislation which caps general damages for non-economic loss such as pain and suffering (see 8.2.14) disproportionately limits damages available to female plaintiffs, who have traditionally obtained more damages under this head than for economic loss.238 For example, losses such as grief at the loss of

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reproductive function (recoverable traditionally as non-economic loss) may not be particularly productive of economic loss such as loss of wages, but will be a very significant and painful loss for a woman: ibid, at 1281. Other Australian tort reforms which may also particularly affect women adversely include the far more stringent regulation of damages for gratuitous services (see 8.2.33) and the denial by the courts of damages for care provided to others (see CSR Ltd v Eddy 8.2.2), since women make up a large proportion of carers of the injured and disabled.239 Thresholds and caps in the legislation tend to devalue such services, which are predominantly provided by female carers. The provisions also reflect an assumption that care should be provided voluntarily by carers in all but very serious cases. 1.7.12 The widespread abolition of punitive damages in Australia (see 8.1.12) may also particularly affect women as these damages have traditionally been available to adequately compensate women as victims of large scale toxic torts which cluster around ‘contraceptive and cosmetic products’: P Rubin and J Shepherd, ‘The Demographics of Tort Reform’ (2008) Review of Law and Economics 592 at 594. Specific reforms in some Australian states that limit the availability of damages for the upbringing of children in wrongful birth cases (see 7.2.21 n 2) also particularly adversely affect the interests of women because women perform more of the child care and child rearing responsibilities in the average Australian household.240 The recent American study by Rubin and Shepherd has even suggested that tort law reforms such as capping of non-economic and total damages may have the effect of decreasing the care defendants take towards women, children, the poor and elderly, which increases the death and injury rates of these groups.

8 OTHER TORT THEORIES

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1.8.1 In recent years, there has been increased discussion of how other theoretical perspectives cast light on the aims, content and operation of tort law. In this section we consider some contrasting views on the essence and operation of tort law.

Disability jurisprudence and tort law 1.8.2 The law of negligence in relation to personal injuries is essentially about disability. It is about how disability is defined, assessed, measured, and compensated. The ability of an injured person to obtain compensation for their disability is dependent on their ability to medically define and prove their disability (as damage). Maximum compensation is obtained when that disability is shown to be severe and permanent, and is characterised as lifetime suffering. Tort litigation generally assumes ‘that the lives of people with disability are tragic’.241 See, for example, the comments of Spender AJ noted at 1.3.6, where a plaintiff is described as ‘suffering’ from severe spastic quadriplegia with a profound intellectual deficit, which is a ‘tragic state of affairs’ that ‘will persist for the rest of his life’. Disability

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[page 95]

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tort theorists have criticised tort law on the basis that it treats people with a disability as less than ‘whole’ and as ‘abnormal’.242 This, they argue, is not how people with a disability see themselves.243 Life with a disability is, they argue, ‘no more or less tragic than a life without one’.244 Given the widespread incidence of disability in the community, life with a disability is completely ‘normal’ rather than abnormal. See, for example, the comparison of ‘normal’ and ‘abnormal’ plaintiffs in Levi v Colgate-Palmolive 7.2.1C. Compare the comments in Haley v London Electricity Board 7.2.7, where the House of Lords refused to restrict a duty to take care to only those who were ‘able-bodied’.

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1.8.3 The conception of ‘disability’ as ‘tragic’, ‘abnormal’ and ‘medical’ has a number of consequences for tort law. It privileges ‘medical’ views and definitions about disability (a ‘medical’ model of disability) rather than the lived experiences of people with disability, it perpetrates stereotypes about people with a disability that are predominantly negative, and it ‘encourages plaintiffs with disabling injuries to view themselves in harmful ways’.245 As discussed above, the nature of the current common law system also tends to delay and inhibit rehabilitation, which may increase the effects of disability on people’s lives rather than improve injured people’s physical and psychological outcomes. It is also tends to individualise responses to disability and injury, rather than encouraging wider social responses which overcome social prejudices and barriers to the participation of people with a disability in social and economic life.246 It may also influence how courts interpret legal tests such as the test of reasonable foreseeability. For example, defendants may only be taken to be required to be attentive to the risks of injury to ‘normal’ people unless the plaintiff has specifically notified the defendant of their particular disability or particular ‘special’ risk of injury. See, for example, Koehler v Cerebos 7.8.14. 1.8.4 As mentioned at 1.4.32, the NDIS and the NIIS differ from the tort system in the way in which they conceive of, and respond to, disability. Both schemes are aimed at improving the care of, and physical and psychological outcomes for, people with a disability. However, they are also aimed at empowering people with a disability to make their own decisions, improving the inclusion of people with a disability into Australian social and economic life, and overcoming negative stereotypes of disability in the Australian community.247

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Corrective justice, rights and tort law 1.8.5 Corrective justice theories248 and rights theories249 of tort law might be considered ‘internal’ or monistic theories. While the two schools of tort theory differ in detail, they both reject judicial focus on matters external to the law itself. In determining tortious liability, these theories suggest judicial attention should only focus on interpersonal justice concerns relevant to parties, such as whether a wrong has been committed by the defendant, or whether a defendant has infringed the [page 96] rights of a plaintiff. It is not relevant to consider matters such as the impact of tort liability on a class of defendants more generally, whether accidents will be prevented, social costs, economic efficiency, gender impact or the need to provide compensation to the injured. Justice theorists ‘seem united in the idea that private law is best understood “noninstrumentally”, as a relatively autonomous universe of normative discourse based on concepts

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such as “rights”, “wrongs”, “responsibility” and, of course, “justice”’.250 The use of ‘policy’ in judicial reasoning in tort cases is generally considered impermissible by corrective justice and rights scholars.251 The use of policy in judicial reasoning is considered to involve judges acting improperly as a legislature.252 These concerns are based on matters such as a fear of judicial politics; lack of technical competency by judges in evaluating non-legal information; and a lack of evidence produced to courts about issues such as social costs, economic efficiency and the impact of tortious liability on human behaviour.253

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1.8.6 There are a range of critiques of corrective justice and rights-based tort theories.254 First, it might be questioned whether it is possible to describe the diverse universe of tort actions as coherently unified by single concerns such as corrective justice or rights. Rather, tort law could be considered as reflecting multiple or plural concerns which are both internal to the law and external to the law.255 Many of these concerns may be competing. Second, it might be questioned whether unifying concepts such as ‘corrective justice’ can be understood or determined by judges without social context. For example, what a judge might have considered just as between a doctor and patient 30 years ago, may be very different to what might be considered just in 2017 given social changes in the doctor–patient relationship.256 Third, given evidence that judges do refer to broader policy matters in their reasoning in tort cases,257 pragmatically it might be argued that accounts of tort law which suggest judges ought not to do so are unrealistic. Finally, corrective justice and rights accounts of tort law might rest on myths about how the tort system as a system of accident compensation actually operates in practice.258 As we outlined at 1.1.10–1.1.16, many people who suffer an injury through another’s tortious wrong receive no compensation, the ‘wrong’ committed against them is not vindicated and they receive no ‘corrective justice’. Those who do receive compensation are likely to receive a discounted amount. Any compensation received is more likely to be delivered via a settlement achieved through an administrative process rather than through a court judgment that determines that the defendant has wronged a plaintiff or breached his or her rights. [page 97] 1.8.7 For an American perspective, John Goldberg and Benjamin Zipursky have developed a related (although separate) theory of their own called ‘civil recourse’ theory, based on tort as a vindication of civil legal wrongs. For example, see J C P Goldberg and B C Zipursky, ‘Torts as Wrongs’ (2010) Texas L Rev 980; ‘Civil Recourse Revisited’ (2011) 39 Florida State University L Rev 341. For critique, see J Stapleton, ‘Evaluating Goldberg and Zipursky’s Civil Recourse Theory’ (2006) 75 Fordham L Rev 1529; M Chamallas, ‘Beneath the Surface of Civil Recourse Theory’ (2013) 88 Indiana LJ 527; M Rustad, ‘Twenty-First Century Tort Theories: The Internalist/Externalist Debate’ (2013) 88 Indiana L J 419.

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Some other legal theories 1.8.8 I Englard, The Philosophy of Tort Law, Dartmouth, Aldershot; Brookfield, USA, 1993, contains a wide-ranging and critical discussion of American tort theory to that date. Among the writers Englard considers is Richard Epstein who, although associated with the Chicago school, in numerous articles and books developed a theory of tort liability that is distinct from the ‘economic efficiency’ model. Another theory considered by Englard is that of G P Fletcher, ‘Fairness and Utility in Tort Theory’ (1972) 85 Harv L Rev 537. Further views, emphasising a ‘rights-based’ or moral approach to tort law, may be found among some of the essays in D G Owen (ed), Philosophical Foundations of Tort Law, Clarendon Press, Oxford, 1995. For recent discussion of contemporary tort theory, see Oberdiek 1.5.28; Hedley 1.5.28. 1.8.9 Other scholars are less concerned with theory than with the practical working of the torts system: see, for example, the symposium on Alternative Compensation Schemes and Tort Theory in (1985) 73 Cal L Rev 548–1042; Hedley 1.5.28; S Hedley, ‘Making Sense of Negligence’ (2016) 26 Legal Studies 491; R Lewis, ‘Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies’ (2017) 37(1) Legal Studies 162; E Quill and R Friel, Damages and Compensation Culture: Comparative Perspectives, Hart Publishing, 2016.

1. 2.

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3. 4. 5.

6. 7. 8.

9. 10.

11.

12. 13.

Australian Institute of Health and Welfare (AIHW), Australia’s Health 2016, Cat No AUS 199, Canberra, 2016, (last accessed 12 February 2017), p 111. AIHW, Australian Burden of Disease Study: Impact and Causes of Illness and Death in Australia in 2011, Cat No BOD 4, Canberra, 2016, (last accessed 12 February 2017), p 2. AIHW, above n 2, pp 2, 137. AIHW, above n 2, p 137. C Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia, Law and Justice Foundation of New South Wales, Sydney, 2012 (last accessed 12 February 2017), p 60. Coumarelos et al, above n 5, p 62. G Grant, ‘Claiming Justice in Injury Law’ (2015) 41 Mon Uni L Rev 619 at 619–20, n 2. ABS, Disability, Ageing and Carers, Australia: Summary of Findings, 2015 (Cat No 4430.0), Canberra, 2016, (last accessed 12 February 2017). Calculations based on ABS, above n 8, Disability Tables (Table 12.1). ABS, Disability, Ageing and Carers, Australia: Disability and Long-Term Health Conditions 2009 (Cat No 4433.0), Canberra, 2011, , (last accessed 12 February 2017), Table 14. Productivity Commission, Disability Care and Support: Inquiry Report, Report No 54, Canberra, 2011 (NDIS Report), (last accessed 12 February 2017), pp 793–4. See also p 863. NDIS Report, above n 11, p 793. C Coumarelos, G Grant and Z Wei, ‘Personal Injury Problems: New Insights from the Legal Australia-Wide Survey’, Justice Issues No 22, Law and Justice Foundation of New South Wales, Sydney, 2017,