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1
Giliker, Paula. "ANALYSING INSTITUTIONAL LIABILITY FOR CHILD SEXUAL ABUSE IN ENGLAND AND WALES AND AUSTRALIA: VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND STATUTORY INTERVENTION." Cambridge Law Journal 77, no. 3 (September 24, 2018): 506–35. http://dx.doi.org/10.1017/s0008197318000685.
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AbstractThis paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.
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McBride, Nicholas J. "VICARIOUS LIABILITY IN ENGLAND AND AUSTRALIA." Cambridge Law Journal 62, no. 2 (July 1, 2003): 255–60. http://dx.doi.org/10.1017/s0008197303266307.
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Rajapakse, Pelma Jacinth. "Contamination of Food and Drinks: Product Liability in Australia." Deakin Law Review 21, no. 1 (February 23, 2018): 45. http://dx.doi.org/10.21153/dlr2016vol21no1art718.
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This article examines the Australian law determining liability of manufacturers and retailers for injury or death allegedly caused by food and drink products which were spoiled, contaminated, or otherwise in a deleterious condition. Product liability and the issue of negligence associated with consumption of foods or drinks deemed as contaminated form the key points of discussion in this article. The liability of manufacturers, processors, wholesalers and retailers are explored with reference to elements of negligence, breach of express or implied warranty, misrepresentation, and strict liability in tort. Australian case law as it pertains to duty of care, breach, causation, and damage has been established and there are consumer protection and product safety laws at both state and federal levels that provide for those affected by contamination/harmful condition of food and drink products. This article explores examples of negligence as the basis of manufacturer’s, processor’s and retailer’s liability in tort (common law and Civil Liability Act 2003 (Qld)) as well as liability under the federal and state legislation such as the Competition and Consumer Act 2010 (Cth), the Food Act 2006 (Qld) and the Australia New Zealand Food Standards Code). The various defences of contributory negligence of consumers, and obvious risk of injury suffered, as well as those established by manufacturers/retailers in the relevant proceedings are used to show the complexity of this issue. The article concludes with recommendations for consumers and businesses to avoid the risk of food contamination and to maintain food safety.
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Krebs, Beatrice. "ACCESSORY LIABILITY: PERSISTING IN ERROR." Cambridge Law Journal 76, no. 01 (March 2017): 7–11. http://dx.doi.org/10.1017/s0008197317000150.
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IN Miller v The Queen [2016] HCA 30, the High Court of Australia (HCA) declined to follow the Privy Council and UK Supreme Court (UKSC) in abolishing the doctrine of extended joint criminal enterprise, as PAL is known in South Australia. Under the Australian doctrine, liability for murder is imposed where an individual “is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise” (at [1]). This reflects the very position that was abandoned in Jogee [2016] UKSC 8; [2016] 2 W.L.R. 681 Ruddock v The Queen UKPC 7 as a “wrong turn” of the English common law.
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Harland, David. "Reform of the law of product liability in Australia." Journal of Consumer Policy 15, no. 2 (June 1992): 191–206. http://dx.doi.org/10.1007/bf01352136.
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Overland, Juliette. "Liability for insider trading: learning lessons from Australia." International Journal of Private Law 2, no. 1 (2009): 62. http://dx.doi.org/10.1504/ijpl.2009.021513.
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McIvor, Claire. "Liability in Respect of the Intoxicated." Cambridge Law Journal 60, no. 1 (March 2001): 109–27. http://dx.doi.org/10.1017/s0008197301000642.
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THIS article considers how third parties may be held personally liable for harm inflicted by, and upon, the intoxicated. It charts the development of ‘alcohol liability’ in Canada and Australia and then goes on to demonstrate how this novel category of liability for the acts of others is beginning to work its way into the English law of tort.
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Abu-Zeitoun, Mamoun, and Mouaid Al-Qudah. "Withdrawal and Criminal Liability under the Criminal Laws of Jordan and Australia: A Comparative Study." Arab Law Quarterly 24, no. 1 (2010): 3–40. http://dx.doi.org/10.1163/157302510x12607945807197.
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This article is a comparative study of withdrawal as a defence to the criminal liability of an offender in Jordan (a civil law jurisdiction) and Australia (a common law jurisdiction). The analysis in this paper reveals that, in both jurisdictions, criminal laws have long accepted withdrawal as a conduit through which the offender’s liability can be modified or completely quashed. However, there has been no serious attempt, at least in Jordan, to provide anything approaching a complete explanation of the conditions under which the defence may be available and to explore its limits and boundaries. Neither has any serious effort been made to offer an account of the defence’s conceptual nature and governing rationale. The present paper seeks to identify and explore the defence’s conceptual basis and rationale, its current state of law and the appropriate direction in which the defence might be developed. To achieve this purpose, the paper is divided into three sections. In Section 1, it explores the conceptual nature of withdrawal. Section 2 addresses the rationale of the defence in light of the underlying principles of criminal liability in both jurisdictions. In Section 3 a comparative analysis of the defence’s qualifying requirements is undertaken in relation to both primary and accessorial criminal liability. Comparative analysis shows that withdrawal can be used as a defence to all forms of criminal complicity with differing degrees of variations in relation to both its qualifying requirements and the extent to which it may affect the liability of an offender. In cases involving incitement, however, the inciter cannot rely on the defence to avoid criminal liability although his or her punishment can be reduced pursuant to his or her voluntary withdrawal under the JPC.
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Anderson, Helen. "Parent company liability for asbestos claims: some international insights." Legal Studies 31, no. 4 (December 2011): 547–69. http://dx.doi.org/10.1111/j.1748-121x.2011.00202.x.
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Throughout the world, the corporate group structure has long proved troublesome to the creditors, and particularly the tort creditors, of undercapitalised subsidiary companies. In the wake of Australia's James Hardie asbestos compensation inquiry, Senior Counsel assisting the Jackson Special Commission, Mr John Sheahan QC, called for the Commission to ‘recommend reform of the Corporations Act so as to restrict the application of the limited liability principle as regards liability for damages for personal injury or death caused by a company that is part of a corporate group...’. Following this call, in May 2008 the Corporations and Markets Advisory Committee released a report on long-tail liabilities, making various recommendations for reform. Separately, legislation was passed making pooling available for insolvent group companies in Australia. This paper examines the long-tail liability suggestions and the 2007 pooling amendments. It will be argued that neither of these is adequate for the proper protection of tort creditors of insolvent subsidiaries. It then considers international alternatives which might satisfy Mr Sheahan's appeal for reform.
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Ryan, Desmond. "FROM OPPORTUNITY TO OCCASION: VICARIOUS LIABILITY IN THE HIGH COURT OF AUSTRALIA." Cambridge Law Journal 76, no. 01 (March 2017): 14–18. http://dx.doi.org/10.1017/s0008197317000174.
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IN Prince Alfred College Incorporated v ADC [2016] HCA 37, the High Court of Australia (HCA) has once again considered the appropriate test for establishing vicarious liability of employers for the wrongful acts of their employees. The decision will be of interest to tort lawyers in the common-law world for at least four reasons. First, the Court looked afresh at the test for vicarious liability in the context of intentional wrongdoing and has accordingly clarified the confusion arising from its earlier decision in New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511. Secondly, the Court expressed very strong disagreement with the decision of the UK Supreme Court handed down just months earlier in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11; [2016] A.C. 677. The Court apparently regarded Mohamud as having in effect abandoned the Lister qualification that mere opportunity was not enough to satisfy the close connection test (Lister v Hesley Hall Ltd. [2001] UKHL 22; [2002] 1 A.C. 215). Thirdly, the Court appears to have interpreted the relevant English authorities as espousing a Caparo-like criterion of fairness and justice as a separate stage of the close connection test (Caparo Industries plc v Dickman [1990] 2 A.C. 605). That interpretation is questionable. Finally, the Court has articulated a new test in Australian law for vicarious liability reasoning based on whether the employment provided the “occasion” for the wrongdoing to be committed. This prompts a reflection on the difference between “occasion” and “opportunity”, and how this new test is to be applied in practice.
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Conaglen, Matthew D. J. "FIDUCIARY LIABILITY AND CONTRIBUTION TO LOSS." Cambridge Law Journal 60, no. 3 (November 21, 2001): 441–92. http://dx.doi.org/10.1017/s0008197301341193.
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Having made a successful takeover bid for Western United, Kia Ora found that it had paid $25.7m in cash and issued 67.9m $1 shares in return for Western United shares worth only $6.4m. Kia Ora successfully sued several former directors. The High Court of Australia’s decision in Pilmer v. Duke Group Ltd. (in liq.) (2001) 180 A.L.R. 249 concerns aspects of the liability of Kia Ora’s accountants, Nelson Wheeler, for providing a report stating that the price proposed for the Western United shares was fair and reasonable. The report was prepared incompetently and Nelson Wheeler were held liable by the Full Court of the Supreme Court of South Australia for breach of contract, negligence and breach of fiduciary duty. The High Court allowed an appeal by Nelson Wheeler.
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Goldring, J. "Civil Liability Law Reform in Australia : the "King of Torts" Is Dead." Uniform Law Review - Revue de droit uniforme 10, no. 3 (August 1, 2005): 447–68. http://dx.doi.org/10.1093/ulr/10.3.447.
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Aronson, Mark. "Some Australian Reflections on Roncarelli v. Duplessis." McGill Law Journal 55, no. 3 (February 10, 2011): 615–40. http://dx.doi.org/10.7202/1000626ar.
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Roncarelli v. Duplessis figures far more frequently in Australia’s secondary literature than in its court decisions, and it is noted not for its invalidation of Prime Minister Duplessis’s actions, but for its award of damages where judicial declaration of invalidity would usually be the only remedy. Invalidating Duplessis’s interference with Roncarelli’s liquor licence would have been the easy part of the case had it been tried in Australia. Australian statutes afforded good protection to liquor licensees, and general administrative law principles confined seemingly unfettered discretionary powers in less solicitous statutory regimes. In addition, the constitutional abolition of internal trade barriers used to be taken as banning unfettered regulatory powers over interstate traders. Duplessis’s tort liability was the hard part. His assumption of legal power was not deliberate, but it was extraordinarily indifferent to questions of legality. Justice Rand characterized this as “malice”, which in turn triggered liability to a uniquely public law tort known nowadays as misfeasance in public office. That tort is likely to cover more forms of non-deliberate official misconduct in Canada than in Australia, whose High Court usually avoids open-ended legal principles, particularly those according immediate operative force to substantive conceptions of the rule of law.
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Vilchyk, Tetyana. "DUTIES OF A LAWYER TO A COURT AND TO A CLIENT." Russian Law Journal 6, no. 4 (November 1, 2018): 62–99. http://dx.doi.org/10.17589/2309-8678-2018-6-4-62-99.
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The article provides a comparison of legislation of the United States, Australia, the EU and Ukraine regulating the legal status of a lawyer in the administration of justice mechanism, as well as an analysis the correlation of his duties to the court and to the client. The author recommends that a lawyer not act in a manner that best serves the interests of the client since this will put the course of justice and public confidence in the profession in a vulnerable position; attorneys have to inform clients that their duty to the court is of paramount importance. In case of improper performance of their professional duties, lawyers should be brought not only to corporate liability (disciplinary liability, which is established by the legislation of Ukraine), but also to the civil law (property) liability that is proposed to be established. It is necessary for Ukraine to introduce insurance institution against a lawyer’s property liability as a means of minimizing the negative consequences for a lawyer, assuming such liability results from an error and such lawyer is obliged to compensate the harm caused to the client.
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Forwood, Mark R. "Whither no-fault schemes in Australia: Have we closed the care and compensation gap?" Alternative Law Journal 43, no. 3 (August 16, 2018): 166–70. http://dx.doi.org/10.1177/1037969x18787552.
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No-fault compensation in New Zealand, the Woodhouse report and statutory reforms to civil liability motivated consideration of no-fault schemes in Australia. In 2011, the Productivity Commission recommended adoption of a National Injury Insurance Scheme. Since 2016, the NDIS has developed nationally, followed by variations of the NIIS for motor vehicle and workplace accidents. Compensation for injuries outside the NIIS (e.g. medical negligence), or general damages or economic loss must be recovered through compulsory third-party claims or common law. For those cases, an attractive compromise between the common law and no-fault compensation exists in Menyawi’s ‘public tort liability’.
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Campbell, Susan. "A student right of audience? Implications of law students appearing in court." International Journal of Clinical Legal Education 4 (July 18, 2014): 22. http://dx.doi.org/10.19164/ijcle.v4i0.109.
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<p>This article examines the policy considerations underlying the common law limitation of the right of audience in the courts to professionally qualified and regulated advocates. It discusses the program conducted by Monash University in Australia whereby law students regularly represent their clients in court and analyses the safeguards built into this program in an attempt to meet those policy considerations. Finally the article looks briefly at the intriguing question of whether student advocates might be immune from liability for negligence, since that immunity still applies in Australia.</p>
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Nwafor, Anthony O. "Corporate Criminal Responsibility: A Comparative Analysis." Journal of African Law 57, no. 1 (February 1, 2013): 81–107. http://dx.doi.org/10.1017/s0021855312000162.
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AbstractThis article focuses on the extent of a company's responsibility for the criminal conduct of its employees. It considers the initial reluctance of common law courts to hold corporations criminally responsible for offences requiring mens rea, a mental element not found in artificial persons. The courts overcame this initial difficulty with recourse to the identification doctrine, which seeks to attribute to a company the fault of certain of its officers. However, the restrictiveness and inconsistencies embodied in the various judicial statements of that doctrine precipitated recourse in some jurisdictions to civil law concepts, such as respondeat superior, vicarious liability and even strict liability, to found corporate criminal responsibility. The need to streamline the scope of, if not enhance, corporate criminal liability, has engendered statutory reforms in some jurisdictions. The article considers reforms in Australia, the UK, Canada and the USA, in comparison with the situation in South Africa and Lesotho.
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Fahey, James, and Rosemary Lyster. "Geosequestration in Australia: Existing and Proposed Regulatory Mechanisms." Journal for European Environmental & Planning Law 4, no. 5 (2007): 378–92. http://dx.doi.org/10.1163/187601007x00316.
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AbstractGeosequestration1 involves the capture (from power stations and other facilities) and storage of carbon dioxide for very long periods of time in underground geological formations. This article is concerned with key legal and regulatory issues associated with establishing and operating geosequestration projects in Australia. It highlights the recent increased interest in, and raised profile of, using geosequestration as a greenhouse gas abatement measure in Australia. It reviews the cooperative efforts of the States, Territories and the Commonwealth to develop a nationally consistent regulatory framework for geosequestration projects, using existing petroleum legislation. These efforts have been driven by a lack of existing Australian legislation that provides an adequate and discrete regime dealing with the issues of responsibility and liability for geosequestered gas, although the release of draft legislation in this area is now imminent. It assesses some State legislative attempts to allow for the underground storage of carbon dioxide, and argues that these fail to satisfactorily deal with the long term (indefinite) nature of the storage aspect of geosequestration projects. Finally, this article examines the States' and Commonwealth's powers to legislate in respect of the injection and storage of carbon dioxide.
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Ní Fhloinn, Deirdre. "Liability in negligence for building defects in Ireland, England and Australia." International Journal of Law in the Built Environment 9, no. 3 (October 9, 2017): 178–92. http://dx.doi.org/10.1108/ijlbe-06-2017-0019.
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Purpose The purpose of this paper is to consider decisions of the courts of three jurisdictions: Ireland; England and Wales; and Australia, in relation to recovery of economic loss in negligence for building defects and to identify the extent to which the legal environment of each jurisdiction has informed the approach of the courts to the issue. Design/methodology/approach The approach taken for this purpose is to review the extent of legislative intervention in each jurisdiction to provide measures of protection for home buyers, and whether that intervention has limited the scope of what may be recovered in negligence for defects. Findings The findings of the research indicate that the retreat from recovery for defects, led by the courts of England and Wales through a series of cases in the 1980s and 1990s, may be regarded in part as a product of their environment, and that legislative intervention in the area of remedies acted as a limitation on the scope of the duties that the courts were prepared to impose. Originality/value Although the issue of recovery for building defects in negligence has been covered extensively in the literature and jurisprudence, the cross-referencing of the common law position with the legislative context in the jurisdictions considered provides insights into the approaches of courts and why the position of the courts of England and Wales may not transpose comfortably to other jurisdictions.
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Androsova, Svetlana. "Allocation of liabilities between parties involved in shipping LNG from eastern Australia." APPEA Journal 53, no. 2 (2013): 461. http://dx.doi.org/10.1071/aj12072.
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LNG shipping tonnage represents about 400 vessels worldwide and it has high safety records compared with other types of tonnage. Serious attention to the operational safety of LNG vessels is dictated by their high value as assets, substantial time required to build new LNG vessels, limited availability of replacement tonnage on the market, heavy dependence of the LNG supply chain on shipping efficiency and reliability, and high costs of delay in LNG supply. Notwithstanding the high safety record of LNG vessels, shipping is historically considered a high-risk enterprise. Liability of shipowners is usually limited to accommodate navigational risks to achieve reasonable transport costs. Such limitation of liability is stipulated in various legislative acts within local and international maritime law. Liability regimes in different countries and regions vary; consequently, study must be undertaken for each particular port to understand their individual liability regimes. This extended abstract discusses the liability regime for LNG vessels calling to Port Gladstone. For the parties involved in the transport of LNG, including sellers, buyers, charterers, shipowners and port authorities, it is important to understand the liability regime in the LNG loading port to ensure proper risk assessment and management of LNG shipping. There are various tools for such risk management, which may include a combination of insurance arrangements, liability and indemnity agreements, allocation of liabilities and indemnities for shipping and insurance requirements in LNG sale purchase agreements, safety assurance policies and procedures, and the inclusion of special requirements in the port and terminal regulations. This extended abstract provides shipping stakeholders with information on methods of managing risks for potential shipping liabilities.
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Rochford, Francine. "Shifting Ground: Alcohol Liability and the Normative Content of Tort Law in Australia." International Journal of Interdisciplinary Social Sciences: Annual Review 5, no. 8 (2010): 223–38. http://dx.doi.org/10.18848/1833-1882/cgp/v05i08/59303.
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Clarke, Roger. "Who is liable for software errors? Proposed new product liability law in Australia." Computer Law & Security Review 5, no. 1 (May 1989): 28–32. http://dx.doi.org/10.1016/0267-3649(89)90173-8.
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Chiarella, Mary, Jane Currie, and Tim Wand. "Liability and collaborative arrangements for nurse practitioner practice in Australia." Australian Health Review 44, no. 2 (2020): 172. http://dx.doi.org/10.1071/ah19072.
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The purpose of this paper is to clarify the relationship between medical practitioners (MPs) and nurse practitioners (NPs) in general, and privately practising NPs (PPNPs) in particular, in relation to collaboration, control and supervision in Australia, as well as to explore the difficulties reported by PPNPs in establishing mandated collaborative arrangements with MPs in Australia. In order for the PPNPs to have access to the Medicare Benefit Schedule (MBS) and Pharmaceutical Benefits Scheme (PBS) in Australia, they are required, by law, to establish a collaborative arrangement with an MP or an entity that employs MPs. This paper begins by describing the history of and requirements for collaborative arrangements, then outlines the nature of successful collaboration and the reported difficulties. It goes on to address some of the commonly held misconceptions in order to allay medical concerns and enable less restrictive access to the MBS and PBS for PPNPs. This, in turn, would improve patient access to highly specialised and expert PPNP care. What is known about the topic? NPs have been part of the Australian health workforce since 1998, but until 2009 their patients did not receive any reimbursement for care delivered by PPNPs. In 2009, the Federal government introduced limited access for PPNPs to the MBS and PBS, but only if they entered into a collaborative arrangement with either an MP or an entity that employs MPs. What does this paper add? The introduction of collaborative arrangements between PPNPs and MPs seems, in some instances, to have created confusion and misunderstanding about the way in which these collaborative arrangements are to operate. This paper provides clarification of the relationship between MPs and NPs in general, and PPNPs in particular, in relation to collaboration, control and supervision. What are the implications for practitioners? A clearer understanding of these issues will hopefully enable greater collegial generosity and improve access to patient care through innovative models of service delivery using NPs and PPNPs.
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Hemraj, Mohammed B. "Australia and Canada: The Role of Policy in Professional Liability." Journal of Financial Crime 9, no. 2 (April 2001): 109–16. http://dx.doi.org/10.1108/eb026012.
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Rissy, Yafet Yosafet W. "DOKTRIN PIERCING THE CORPORATE VEIL: KETENTUAN DAN PENERAPANNYA DI INGGRIS, AUSTRALIA DAN INDONESIA." Refleksi Hukum: Jurnal Ilmu Hukum 4, no. 1 (October 31, 2019): 1–20. http://dx.doi.org/10.24246/jrh.2019.v4.i1.p1-20.
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This article discusses about provisions and application of the Piercing The Corporate Veil (PVC) doctrine in the United Kingdom, Australia and Indonesia. The main issue is when and how the courts apply the PVC doctrine, also whether the doctrine can be applied outside the courts or not. In some states such as the United Kingdom and Australia which exercise common law tradition, the courts may apply the PVC doctrine on share holders and directors when there is an exceptional circumstance which requires to apply the doctrine. Similar to both states, Indonesia, through the Indonesian Supreme Court, has already applied the doctrine long before the law on Limited Liability Company was enacted. In 1998, a unique legal case about the Liquidity Aid of Bank Indonesia shows a phenomenon that was beyond the normal understanding of the Law. In that time, the Indonesian Bank Restructuring Agency applied an out-of-court settlement model to hold shareholders' liability. Finally, this article recommends that a legal and economic study should be considered to examine the effectiveness of this approach.
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Wheatland, Fiona Tito. "Medical Indemnity Reform in Australia: “First Do No Harm”." Journal of Law, Medicine & Ethics 33, no. 3 (2005): 429–43. http://dx.doi.org/10.1111/j.1748-720x.2005.tb00510.x.
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Medical indemnity is not usually the stuff of high political and social drama in Australia. When the biggest medical defense organization went into voluntary liquidation in 2002, this all changed. Newspapers carried stories on an almost daily basis about the actual or possible negative impact of the “crisis” on doctors, hospitals, and communities. Doctors became increasingly vocal in their criticisms and expansive in their claims. Their political organization, the Australian Medical Association, lobbied powerfully and successfully for government intervention to address the problem of dramatically escalating premiums for some doctors. This, combined with a broader public relations campaign about public liability insurance, resulted in significant changes in the law at both the federal and state level - not just in the area of medical negligence but in relation to most personal injury litigation.The genesis of and reasons for current medical indemnity problems in Australia have been the subject of much speculation and little rigorous analysis.
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Grigg, Edward. "Joint Enterprise Liability: Recent Developments and Judicial Responses." Journal of Criminal Law 83, no. 2 (January 13, 2019): 128–35. http://dx.doi.org/10.1177/0022018318819150.
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This article reconsiders the decision in R v Jogee [2016] UKSC 8 and the merits of joint enterprise liability. The article is structured in three sections. First, it outlines the background to the appeal in Jogee and argues that the Supreme Court’s decision is welcome on both normative and jurisprudential grounds. Second, it considers subsequent academic criticism and the approaches taken by the High Court of Australia and Hong Kong Court of Final Appeal. Third, it responds to these differing perspectives and suggests that Jogee has left the law in a more satisfactory state, but that accessorial liability as a whole remains in need of further clarification.
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Steele, Stacey, Ian Ramsay, and Miranda Webster. "Insolvency law reform in Australia and Singapore: Directors' liability for insolvent trading and wrongful trading." International Insolvency Review 28, no. 3 (November 19, 2019): 363–91. http://dx.doi.org/10.1002/iir.1349.
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Kincaid, Peter. "Third Parties: Rationalising a Right to Sue." Cambridge Law Journal 48, no. 2 (July 1989): 243–70. http://dx.doi.org/10.1017/s0008197300105306.
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In a revolutionary but unsatisfactory recent decision, the High Court of Australia has allowed a third-party beneficiary of an insurance contract a right to sue the promisor. The decision casts doubt upon the whole doctrine of privity and ultimately upon bargain as the theoretical basis of promissory liability. The Trident case is unsatisfactory not because it allowed a third-party beneficiary a cause of action or because it challenges privity and bargain, but because it offers no satisfactory replacement for the theory of bargain. The reasons the court gave for recognising a right to sue are weak and inconsistent with the common law's approach to questions of civil liability. That approach is to give a plaintiff a cause of action against a defendant not solely because of something the defendant has done, but because there is a legally relevant link between what he has done and the plaintiff's condition. That is, the plaintiff must, in order to establish a right, satisfy some criterion for linking the defendant's behaviour to his complaint.
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Mackie, Tom. "Proving liability for highly and fully automated vehicle accidents in Australia." Computer Law & Security Review 34, no. 6 (December 2018): 1314–32. http://dx.doi.org/10.1016/j.clsr.2018.09.002.
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Stychin, Carl F. "Dangerous liaisons: new developments in the law of defective premises." Legal Studies 16, no. 3 (November 1996): 387–416. http://dx.doi.org/10.1111/j.1748-121x.1996.tb00536.x.
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In 1995, the highest courts in two Commonwealth jurisdictions - Canada and Australia - squarely faced the issue of the liability of builders of defective and, in the case of the Canadian Supreme Court, dangerous premises in tort.’ The determination in both cases that the builders were liable to the remote purchasers for the cost of repair, based on a duty of care owed to them, can be contrasted to the current state of tort law in this country dealing with defective and dangerous premises. In fact, the articulation of the reasons why a duty of care was imposed in these cases - as reflecting considerations both of principle and policy - provides a more compelling analysis than has been seen to date in the British law of negligence.
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Bevacqua, John. "Unresolved Controversies in Suing for Negligence of Tax Officials: Canadian and Australasian Insights and a Primer for Policy Makers' Consideration." Canadian Tax Journal/Revue fiscale canadienne 68, no. 2 (July 2020): 439–76. http://dx.doi.org/10.32721/ctj.2020.68.2.bevacqua.
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There have been numerous recent Canadian cases in which taxpayers have alleged negligence by Canada Revenue Agency officials. This body of rapidly evolving Canadian case law constitutes, at present, the most extensive jurisprudence in the common-law world considering the tortious liability of tax officials. It also exposes fundamental unresolved controversies that inhibit legal clarity and certainty on the limits of the right of taxpayers to sue for the negligence of tax officials. Through comparison with cases in Australia and New Zealand, this article confirms that these unresolved controversies are not unique to Canada. The author proposes a range of options for addressing these issues. Intended as a primer for policy makers' attention and debate, these proposals are drawn from judicial and legislative approaches adopted in Canada, Australia, and New Zealand, and in other broadly comparable common-law jurisdictions.
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Joyce, Daniel. "Data associations and the protection of reputation online in Australia." Big Data & Society 4, no. 1 (May 29, 2017): 205395171770982. http://dx.doi.org/10.1177/2053951717709829.
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This article focuses upon defamation law in Australia and its struggles to adjust to the digital landscape, to illustrate the broader challenges involved in the governance and regulation of data associations. In many instances, online publication will be treated by the courts in a similar fashion to traditional forms of publication. What is more contentious is the question of who, if anyone, should bear the responsibility for digital forms of defamatory publication which result not from an individual author’s activity online but rather from algorithmic associations. This article seeks, in part, to analyse this question, by reference to the Australian case law and associated scholarship regarding search engine liability. Reflecting on the tensions involved here offers us a fresh perspective on defamation law through the conceptual lens of data associations. Here the focus of the article shifts to explore some wider questions posed for defamation law by big data. Defamation law may come to play a significant role in emerging frameworks for algorithmic accountability, but these developments also call into question many of its traditional concepts and assumptions. It may be time to think differently about defamation and to consider its interrelationship with privacy, speech and data protection more fully. As a result, I conclude that the courts and policymakers need to engage more deeply and explicitly with the rationale(s) for the protection of reputation and that more thought needs to be given to changing conceptions of reputation in the context of data associations.
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Grantham, Ross. "The Proceduralisation of Australian Corporate Law." Federal Law Review 43, no. 2 (June 2015): 233–57. http://dx.doi.org/10.22145/flr.43.2.3.
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The central hypothesis of the paper is that bit by bit and largely unnoticed Australian corporate law has undergone a profound change. Australian corporate law, and particularly the Corporations Act 2001 (Cth), has moved from an essentially private law, substantive rights model, to one that seeks to regulate the company and those involved in its affairs through the prescription of processes and procedures by which corporate decisions may be made and by which the procedural correctness of those decisions is assured. The paper will also seek to demonstrate, by an analysis of the changes in the patterns of corporate case law, that this proceduralising trend has effected a fundamental change in the nature of corporate law and the role of the courts and may now claim to be a, if not, the principal characteristic of Australian corporate law. The paper concludes by highlighting some of the wider implications of this trend and the risk it poses to the intellectual heart of corporate law. The modern registered company owes its immediate creation to the legislature. Historically, however, the nature of the corporate form and the content of what is now known in Australia as corporate law has been very much more the work of the courts.1 It is thus the case that the decision of the House of Lords in Salomon v A Salomon & Co Ltd2 is more often cited as the foundation of modern corporate law than are the Joint Stock Companies Act 1844 (UK)3 or the Limited Liability Act 1855 (UK).4 It is also the case that the building blocks of corporate law were predominantly taken from the private law. Within the open girders of the statutory framework,5 corporate law was built out of the concepts of contract, property, and trust. It is thus not surprising that the company was, and is still, regarded as a fundamentally private legal and economic institution.6
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Naylor, David, and Andrew Jaworski. "Linking your way to liability? – Cooper v. Universal Music Australia Ltd [2006]." Computer Law & Security Review 23, no. 3 (January 2007): 285–89. http://dx.doi.org/10.1016/j.clsr.2007.03.007.
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Vallins, Nina. "Police responses to family violence: Recasting a duty of care." Alternative Law Journal 42, no. 1 (March 2017): 29–34. http://dx.doi.org/10.1177/1037969x17694781.
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This article explores the issue of police liability in negligence for failing to protect victims of crime. UK courts have held that police, in the course of investigation or suppression of a crime, do not have a duty of care to individuals. The law in Australia, however, is unsettled. The author discusses cases where police have failed to protect victims of family violence and finds that public policy reasons for granting police immunity from suit are unsatisfactory and unjust.
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McCrystal, Shae. "The Right to Strike and the "Deadweight" of the Common Law." Victoria University of Wellington Law Review 50, no. 2 (September 2, 2019): 281. http://dx.doi.org/10.26686/vuwlr.v50i2.5746.
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The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. To provide workers with a right to strike, legislative intervention is necessary. In New Zealand and Australia, legislative enactment of the right to strike has taken the form of the "immunity approach" whereby strike action which meets the prerequisites for protection under the relevant statute receives immunity from common law action, while that which does not remains subject to potential liability at common law.This article analyses the adoption of the immunity approach in Australia under the relevant federal industrial relations statutes that have operated since 1993. Commencing with discussion of the hostility of the common law to collective action and the principle of legality, a presumption of statutory interpretation that presumes Parliament would not have abrogated common law rights without an express intention to do so, this article examines how the scope of protected industrial action in Australia has been consistently narrowed through hostile judicial interpretation. Such interpretation has been grounded in an approach which narrows the extent that common law rights are restricted by the statute and construes the statutory enactment of a right to strike as conferring a "privilege" on those industrial actors who remain "worthy" enough to access it.Considering the progressively negative impact on the right to strike of this approach, the argument in this article echoes calls made by Gordon Anderson in 1987 to reject the continued role of the common law in the regulation of industrial action. It is argued that the law of strikes in Australia should be codified. Such an approach should assist in downplaying judicial tendencies to interpret the right to strike as a privilege rather than as a necessary component of a functioning system of voluntary collective bargaining.
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Watts, Kim, and Tina Popa. "Injecting Fairness into COVID-19 Vaccine Injury Compensation: No-Fault Solutions." Journal of European Tort Law 12, no. 1 (April 1, 2021): 1–39. http://dx.doi.org/10.1515/jetl-2021-0005.
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Abstract The devastating impact of the COVID-19 global pandemic has fast-tracked the development of vaccines against the SARS-CoV-2 virus, with global vaccination efforts already underway. While the introduction of large-scale or even mandatory vaccination will facilitate resumed social interaction, work and travel, such action is not without risks. Vaccination exposes recipients to the risk of rare but serious effects, leading to pertinent questions about liability and compensation for harm caused by vaccination. There have already been rare blood clotting reactions associated with two COVID-19 vaccines, some of which have been fatal. Traditional means of accessing compensation, such as liability-based litigation, product liability regimes and existing statutory schemes may be inadequate avenues of accessing compensation for individuals who sustain vaccine-related harm. Despite a significant number of countries worldwide introducing vaccine injury compensation schemes, many European countries and Australia have been hesitant to develop a no-fault scheme to respond to potential vaccine-related injuries. This article critically analyses whether existing compensation mechanisms, including liability-based tort claims, operating in common law and civil jurisdictions, are adequate avenues of accessing compensation by injured individuals. Australia and Europe are compared because of the close similarities in their existing liability-exemption approach to vaccine injury compensation, rather than no-fault. This stands in stark contrast to the use of no-fault schemes in other major jurisdictions, and the COVAX vaccine injury compensation scheme available in 92 low- and medium-income countries. The authors conclude that the introduction of a no-fault vaccine injury compensation scheme is a desirable mechanism to compensate vaccine-related injuries, by offering a more efficient and easily accessible method of accessing compensation when compared with liability-based causes of action. With the commencement of vaccination, urgent introduction of no-fault vaccination injury compensation schemes ought to be at the forefront of lawmakers’ reform agenda.
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Markova, Elena. "Offences committed using electronic means of payment by the country of the Saxon legal family (in the United Kingdom and the United States of America)." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2020, no. 1 (April 8, 2020): 99–105. http://dx.doi.org/10.35750/2071-8284-2020-1-99-105.
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The article analyses the legal characteristics of the criminal laws of foreign States belonging to the Anglo-Saxon legal family (in the case of Great Britain and the United States of America) with regard to criminal liability for crimes committed by electronic means of payment. The peculiarities of this legal family are noted, which affect the position of the legislator with regard to the regulation of cybercrime, including the legal nature of criminal law; The importance of resolutions of the Royal (Westminster) Courts, the Supreme Court on the constitutionality or unconstitutional nature of ordinary («current») laws (USA), in Canada, Australia and other English-speaking States, in which acts of the highest courts on identical subjects have acquired special importance. Problems affecting criminal legislation have been identified: the de facto absence of systematic rules on the limits of the criminal law; There are contradictions between the written sources of criminal law (in particular with regard to fraud and computer crimes; Recognition of the interpretation of the law by sources of criminal law, etc.). It is noted that there is no Criminal Code in the UK, however, issues of criminal liability for computer crimes are regulated at the level of written law: in the Law on Computer Crimes the adoption of which was facilitated by the judicial precedent of 1988 (R v Gold & Schifreen), in the Law on Fraud of 2006, which classifies the elements of crimes committed in the form of fraudulent fraud. The peculiarities of the criminal law of the United States, which like Great Britain, does not have a codified system of criminal law at the federal level, are noted. An analysis of the two-tier legal system of the United States, the peculiarities of criminal liability for cybercrime in certain states, including FOR theft and fraud by the use of payment cards, has been carried out.
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Loke, Alexander. "The valuer's liability for negligent valuation - toward a more principled allocation of the risk of market decline." Legal Studies 19, no. 1 (March 1999): 47–67. http://dx.doi.org/10.1111/j.1748-121x.1999.tb00085.x.
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The scope of duty of care concept developed by Lord Hoffmann in South Australia Asset Management v York Montagu (1997) AC 191 seeks to limit a valuer's responsibility for a lender's losses arising from his negligent valuation report. The limitation device stems from a laudable motivation. As the valuer provides only one of the considerations on which the lender relies to assess the loan proposal, it is intuitively unappealing to thrust the full loss onto the valuer. However, this limitation technique operates in a mechanical manner and does not deal with the loss attributable to the market fall in a cogent and principled manner. This article suggests that the key to a principled restriction on the valuer's responsibility lies in identifying the kinds of risks the parties were willing to assume. The author develops two techniques - the Constructive Alternative Transaction Discount and the Constructive Actualised Risk Discount - for reducing the valuer's extent of responsibility in a principled and cogent manner.
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Carver, Tracey. "Informed consent, Montgomery and the duty to discuss alternative treatments in England and Australia." Journal of Patient Safety and Risk Management 25, no. 5 (September 9, 2020): 187–93. http://dx.doi.org/10.1177/2516043520941330.
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The UK Supreme Court in Montgomery v Lanarkshire Health Board imposes a duty on healthcare professionals in relation to information disclosure. The obligation is to take reasonable care to ensure that patients are aware, not just of material risks inherent in any recommended treatment, but of any reasonable alternative treatments. While liability for information non-provision was previously decided according to whether the profession would deem disclosure appropriate, the law now judges the sufficiency of information from a patient’s perspective. In doing so, it adopts the approach advocated for Australia in Rogers v Whitaker. However, commentators, in this journal and elsewhere, have expressed concern that the disclosure obligation is unclear. Although Montgomery defines what is ‘material’ for the purpose of identifying notifiable treatment risks, it offers less guidance as to when alternative treatments will be sufficiently ‘reasonable’ to warrant disclosure. Through an analysis of Australian and UK case law and examples, this article considers the ambit of a practitioner’s duty to discuss alternatives. It concludes that although likely subject to further litigation, the identification of reasonable treatment options requiring disclosure will be influenced by the patient’s clinical condition, their prognosis and viable options from a medical perspective, and various non-clinical matters influenced by the test of materiality.
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Wawryk, Alexandra, and Katelijn van Hende. "The internationalisation of liability regimes for offshore petroleum exploration and production." APPEA Journal 54, no. 1 (2014): 209. http://dx.doi.org/10.1071/aj13022.
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The pollution caused by the explosion of the Deepwater Horizon oil rig in the Gulf of Mexico, and the Montara blowout in the Timor Sea, put the call for an international regulatory framework for oil pollution liability on the global agenda. Although international law regulates the prevention of offshore oil pollution and protection of the marine environment, certain activities do not fall inside the ambit of international regulations. For example, while new technology has made it possible for companies to drill to deeper depths and explore further away from the coastline, existing international conventions generally do not extend to liability for, and restoration of, damage caused by oil pollution from offshore installations. These issues are regulated by the national laws of the country that governs the continental shelf where the petroleum activities are conducted. Thus, from an international perspective, the legal regime is disperse and complex. The amount and complexity of claims arising from large-scale incidents has raised interest in creating a consistent international liability regime. This could be done through a multilateral treaty. Alternatively, the development and application of common principles across national and regional jurisdictions can lead to the increased internationalisation of liability regimes. This paper compares the laws of Australia, the USA and the UK to identify common principles for liability and environmental restoration. The authors argue that as the legal framework becomes internationalised, increasing pressure will be placed on companies to accept the highest standards of liability, rather than the lowest national standard.
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Tredoux, Liezel G., and Kathleen Van der Linde. "The Taxation of Company Distributions in Respect of Hybrid Instruments in South Africa: Lessons from Australia and Canada." Potchefstroom Electronic Law Journal 24 (January 12, 2021): 1–36. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a6781.
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Tax legislation traditionally distinguishes between returns on investment paid on equity and debt instruments. In the main, returns on debt instruments (interest payments) are deductible for the paying company, while distributions on equity instruments (dividends) are not. This difference in taxation can be exploited using hybrid instruments and often leads to a debt bias in investment patterns. South Africa, Australia and Canada have specific rules designed to prevent the circumvention of tax liability when company distributions are made in respect of hybrid instruments. In principle, Australia and Canada apply a more robust approach to prevent tax avoidance and also tend to include a wider range of transactions, as well as an unlimited time period in their regulation of the taxation of distributions on hybrid instruments. In addition to the anti-avoidance function, a strong incentive is created for taxpayers in Australia and Canada to invest in equity instruments as opposed to debt. This article suggests that South Africa should align certain principles in its specific rules regulating hybrid instruments with those in Australia and Canada to ensure optimal functionality of the South African tax legislation. The strengthening of domestic tax law will protect the South African tax base against base erosion and profit shifting through the use of hybrid instruments.
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Stickley, Amanda, Sharon Christensen, W. D. Duncan, and Jacinta Buchbach. "Predictive technology and natural hazards: risk for Australian planning authorities?" International Journal of Law in the Built Environment 8, no. 1 (April 11, 2016): 42–55. http://dx.doi.org/10.1108/ijlbe-12-2015-0020.
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Purpose The purpose of this paper is to examine whether the improvements in technology that enhance community understanding of the frequency and severity of natural hazards also increased the risk of potential liability of planning authorities in negligence. In Australia, the National Strategy imposes a resilience-based approach to disaster management and stresses that responsible land-use planning can reduce or prevent the impact of natural hazards upon communities. Design/methodology/approach This paper analyses how the principles of negligence allocate responsibility for loss suffered by a landowner in a hazard-prone area between the landowner and local government. Findings The analysis in this paper concludes that despite being able to establish a causal link between the loss suffered by a landowner and the approval of a local authority to build in a hazard-prone area, it would be in the rarest of circumstances that a negligence action may be proven. Research limitations/implications The focus of this paper is on planning policies and land development, not on the negligent provision of advice or information by the local authority. Practical implications This paper identifies the issues a landowner may face when seeking compensation from a local authority for loss suffered because of the occurrence of a natural hazard known or predicted to be possible in the area. Originality/value The paper establishes that as risk managers, local authorities must place reliance upon scientific modelling and predictive technology when determining planning processes to fulfil their responsibilities under the National Strategy and to limit any possible liability in negligence.
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Barrymore, Stuart J., and Jane Ballard. "Decommissioning – a path forward for Australia." APPEA Journal 59, no. 1 (2019): 25. http://dx.doi.org/10.1071/aj18143.
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Australia has embarked on a review of its decommissioning law and practice with a comprehensive discussion paper being issued by the Department of Industry, Innovation and Science. Initial stakeholder comments and submissions have been made, and the Department is now considering those submissions with a view to issuing recommendations to the Minister. The discussion paper ultimately proposes that new laws will be implemented to ensure that Australia has a 21st century fit-for-purpose decommissioning regime to apply to its offshore petroleum installations. After an overview of the review process and the selected issues that the Department regards of significance, this article considers a selection of the issues that emerge. It is evident that diverse views exist on almost all topics, and it will not be an easy task to find a balance that both meets the goals and aspirations of industry and community sectors. This challenge is compounded by the scale of decommissioning operations and the cost that will be incurred to remediate wells and remove associated facilities. The balance sought is one that does not stifle industry’s capacity to further invest nor impose onerous or uncompetitive imposts or controls, but also assures that adequate funding is available to carry out decommissioning works. Everyone seemingly accepts that it is not the role of the Australian Government to remove the facilities and restore the sea bed. Globally, techniques that are being increasingly utilised to manage this risk involve the imposition of securities or other assurance and enhanced statutory liability mechanisms. These legal and commercial considerations are given particular focus in the article.
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Anthony, Thalia, and Penny Crofts. "Special Edition: Limits and Prospects of Criminal Law Reform – Past, Present, Future." International Journal for Crime, Justice and Social Democracy 6, no. 3 (September 1, 2017): 1–7. http://dx.doi.org/10.5204/ijcjsd.v6i3.423.
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This special issue traces multifaceted readings of criminal law reform in the context of developments in Australia, North America and Europe. It addresses a range of criminal law legislative regimes, frameworks and issues confronting criminal law reform including as they relate to family violence, organisational liability for child sexual abuse, drug-driving and Indigenous under-representation on juries. In doing so, the articles variously assess the impacts of past criminal law reforms, current processes of reform, areas in need of future reform and the limitations of reform. It poses a number of challenges: Who does law reform serve? What principles should guide the work of criminal justice reform? What is the role and responsibility of universities in law reform? Who are the natural allies of academics in agitating for reform? Is reform of criminal law enough for progressive social change? Do public inquiries and law reform assist with progressive change or do they have the potential to undermine the struggle for more humane and equitable social responses?
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Nicholson, Frances. "Implementation of the Immigration (Carriers’Liability) Act 1987: Privatising Immigration Functions at the Expense of International Obligations?" International and Comparative Law Quarterly 46, no. 3 (July 1997): 586–634. http://dx.doi.org/10.1017/s0020589300060814.
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It is now a decade since the United Kingdom, along with Germany and Belgium, followed the policy of traditional countries of immigration, such as the United States, Canada and Australia, and introduced legislation which provides for the imposition of fines on carriers for bringing in passengers with incorrect papers.1The Immigration (Carriers' Liability) Act 1987 (“the Act”)2imposed fines on carriers of £1,000 for each illegal entrant brought to the United Kingdom. This fine was doubled in August 1991 and two years later extended to cover passengers without transit visas where these were required.3
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McClurg, Leanne. "Liability in oil and gas: what happened in the case of Deepwater Horizon?" APPEA Journal 51, no. 2 (2011): 668. http://dx.doi.org/10.1071/aj10048.
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Disasters such as the explosion of the Deepwater Horizon oil rig and the consequential pollution in the Gulf of Mexico have heightened awareness surrounding liability for such events. It is an opportune time for all companies—whether owners, operators or contractors—to closely examine their contracting regimes to ensure their interests are protected to the maximum extent possible. It is commercial reality in all industries that parties negotiating contracts seek to limit their liability. Unique to the oil and gas industry, contracts for services usually contain reciprocal indemnities, often referred to as knock for knock clauses, where each party is responsible for loss or damage to its own people and property, regardless of the cause. Such clauses have the effect of altering the common law position where liability is usually based on the cause of any loss or damage. In this session the speaker discusses some tips and traps for drafting reciprocal indemnity clauses, and looks at how they have been interpreted by the courts. Consideration is given to how an incident like Deepwater Horizon would be treated if it occurred in Australia and an update on the US Senate Committee’s inquiry into the disaster is provided.
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Smith, Malcolm K., and Tracey Carver. "Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?" Journal of Medical Ethics 44, no. 6 (March 23, 2018): 384–88. http://dx.doi.org/10.1136/medethics-2017-104273.
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The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.
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Wittig, Petra. "Corporate Responsibility for Transnational Human Rights Violations under German Criminal Law – Review and Outlook." European Criminal Law Review 10, no. 3 (2020): 395–409. http://dx.doi.org/10.5771/2193-5505-2020-3-395.
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Time and again, cases come to light in which companies in unstable regions have participated in crimes, including human rights violations. However, the economic power over these companies is regularly geographically distant, anchored in the stable regions of the world, e.g. in a corporate headquarters located in Europe, the USA, Canada or Australia, where the economic profit ultimately accrues. Starting from this imbalance, the present essay examines the question of the criminal (co-)responsibility of these power holders using the example of the German legal system. It becomes apparent that the concept of criminal law, which is still based almost exclusively on individual responsibility, leads to deficits in the investigation of the most serious economically driven crimes. Despite this need for reform, however, even de lege lata a top management based in Germany can be held (jointly) liable for distant crimes under the concept of "principal’s criminal liability" (“Geschäftsherrenhaftung”).”