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Statutory Foundations of Negligence

Statutory Foundations of Negligence

By Mark Leeming

This work explains how statutes underpin and inform the whole of the law of negligence. This covers duty, breach, causation, contributory negligence, statutory contribution, proportionate liability and damages, the law of causation, of damages for mental harm and the immunity of highway authorities are shown to have been deeply informed by statute.

Cause of action Personal Injuries Torts 

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  • Full description

    This work explains how statutes underpin and inform the whole of the law of negligence. Although the civil liability legislation has highlighted the foundational role of statutes, in truth this has been the case for many decades. The book shows how throughout the entirety of the law of negligence – including duty, breach, causation, contributory negligence, statutory contribution, proportionate liability and damages – statutes have been responsible for the law as it is now understood and practised. In particular, the law of causation, of damages for mental harm and the immunity of highway authorities are shown to have been deeply informed by statute.

    Moreover, the contribution of statutes is demonstrated to be vital, complex and interesting.

    The book’s purpose is both educational and practical. While it will strengthen the reader’s conceptual understanding of the complex ways in which statutes and the common law interact to produce the law of negligence, the book is far from a work of abstract theory. On the contrary, its focus is on the very significant practical consequences that flow from the interaction. As such, it will be of enormous assistance to any practitioner seeking to understand or practise in the area. The coverage is Australia-wide.

  • About the author

    Justice Mark Leeming was appointed a Judge of Appeal of the Supreme Court of New South Wales in 2013, before which he had practised at the New South Wales Bar since 1995 and had been appointed Senior Counsel in 2006. He has taught at the University of Sydney part-time since 1995, where he is Challis Lecturer in Equity.

    He is the co-author of two leading practitioner texts and a casebook on equity and trusts, and has published widely in the areas of constitutional law, administrative law, equity, trusts and intellectual property, including, with Federation Press, the books Resolving Conflicts of Laws (2011) and Authority to Decide: The Law of Jurisdiction in Australia (2012). He is a member of the Editorial Boards of the Journal of Equity and the Australian Bar Review. On 1 July 2011, he was appointed a Director of The Federation Press.

  • Product details

    ISBN: 9781760021955

    Published: 2019

    Format: Softcover

  • Table of contents

    Preface
    Note on Abbreviations
    Table of Cases
    Table of Statutes

    1 Introduction
    Introduction Click "Introduction" to download this chapter free as a preview

    1.1 The entangled interaction of statute law and judge-made law
    1.2 An example: causation and contributory negligence
    1.3 Four themes
    1.4 A note on jurisdiction and application statutes
    1.5 Further questions and references

    2 Duty of Care
    2.1 The role of statute in the determination of duty of care
    2.2 The artificiality of the duty requirement
    2.3 The historical role of statute
    2.4 The role of statute following the demise of proximity
    2.5 The contemporary role of statute
    2.6 Duties of care owed by public authorities
    2.7 The relationship between duty and the civil liability legislation
    2.8 Conclusion
    2.9 Further questions and references

    3 Breach
    3.1 Introduction
    3.2 “General principles” relevant to breach
    3.3 Special provisions for professional negligence
    3.4 Lesser standard for public authorities
    3.5 Conclusion
    3.6 Further questions and references

    4 Causation and contributory negligence
    4.1 Introduction
    4.2 Causation before March v Stramare
    4.3 Contributory negligence before statutory apportionment
    4.4 The last opportunity rule
    4.5 Alford v Magee
    4.6 Statutory apportionment in the United Kingdom
    4.7 Statutory apportionment in Australia
    4.8 March v Stramare (E & MH) Pty Ltd
    4.9 Causation under the civil liability legislation
    4.10 Statutory amendments to statutory apportionment
    4.11 Conclusion
    4.12 Further questions and references

    5 Roads authorities
    5.1 The qualified immunities of roads authorities
    5.2 The non-feasance rule and the background to Brodie
    5.3 The legal nature of a highway
    5.4 Recognition of the statutory basis of the rule
    5.5 The impact of more recent legislation on Brodie
    5.6 Partial reinstatement of the non-feasance rule by the civil liability legislation
    5.7 Three current questions arising out of the qualified immunity
    5.8 Conclusion
    5.9 Further questions and references

    6 Damages I – Multiple defendants
    6.1 Introduction
    6.2 Multiple tort-feasors at common law
    6.3 Statutory contribution
    6.4 Vicarious liability
    6.5 Proportionate liability
    6.6 Conclusion
    6.7 Further questions and references

    7 Damages II – Pure mental harm
    7.1 Introduction
    7.2 Victorian Railways Commissioners v Coultas and its aftermath
    7.3 Two legislative responses to claims for mental injury
    7.4 Expansion of common law: Jaensch v Coffey and Tame v New South Wales
    7.5 The 1944 statute as a fetter to curial development?
    7.6 Civil liability legislation
    7.7 Wicks v SRA and King v Philcox: the significance of textual and contextual differences
    7.8 Conclusion
    7.9 Further questions and references

    8 Damages III – Personal injury
    8.1 Overview of the categories of personal injury damages
    8.2 General and special damages
    8.3 Lost capacity to provide domestic services
    8.4 Judicial legislation for interest and discount rates
    8.5 Conclusion
    8.6 Further questions and references

    Epilogue

    Appendix – Selected legislative provisions
    1. Civil Liability Act 2002 (NSW) – Part 1A Negligence
    2. Civil Liability Act 2002 (NSW) – Part 3 Mental harm
    3. Civil Liability Act 2002 (NSW) – Part 5 Liability of public and other authorities (extracts)
    4. Miscellaneous legislative extracts

    Index

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