(82) As an example, legal compensation systems which do not require claimants to establish fault on behalf of the new injurer are ubiquitously inspired ‘no-fault’ strategies: pick, such as for example, ‘Symposium: Tort Legislation–No-fault Insurance’ (1989) twenty six San diego Law Review 977.
(83) Find Cane, ‘Fault and Tight Responsibility having Damage inside the Tort Law’, more than letter 8, 187-9; Cane, Obligations in-law and you may Morality, over n 8, 82-4.
(84) Actually, there clearly was cause to believe you to according to the generally defunct well-known laws species of rigid accountability, numerous people held purely responsible was in reality to blame, because these instances of rigid liability fundamentally operated in instances where defendants had engaged in abnormally unsafe issues: discover John Fleming, The law out-of Torts (9th ed, 1998) 369.
Mention, however, you to McHugh J later recanted their statement after the High Court’s decision within the Bankstown Foundry Pry Ltd v Braistina 1986) 160 CLR 301: Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 329-30
(86) Look for, including, Bugge v Brown (1919) twenty six CLR 110; Canadian Pacific Railway Co v Lockhart Air conditioning 591 ; Phoenix People Inc v Cavenagh (1996) twenty five MVR 143.
(90) Kondis v County Transportation Authority (1986) 154 CLR 672, 687 (Mason J). Come across essentially Glanville Williams, ‘Liability to possess Independent Contractors’ (1956) 14 Cambridge Law Journal 180; J P Swanton, ‘Non-Delegable Duties: Responsibility to the Carelessness regarding Separate Contractors’ (Pt 1) (1991) cuatro Diary from Deal Rules 183; J P Swanton, ‘Non-Delegable Obligations: Responsibility on Negligence out-of Independent Contracts’ (Pt 2) (1992) 5 Journal away from Deal Laws twenty six.
(93) Discover, such as for instance, Jones v Bartlett (2000) 205 CLR 166, 221 (Gummow and you may Hayne J); Scott v Davis (2000) 204 CLR 333, 417 (Gummow J); The fresh Southern Wales v Lepore (2003) 212 CLR 511, 599 (Gummow and you may Hayne JJ).
See also Sir Harry Gibbs, ‘Living with Risk in Our Society’ (Occasional Paper, Australian Academy of Technological Sciences and Engineering, 2002) < Kieran Tapsell, 'Turning the Negligence Juggernaut' (2002) 76 Australian Law Journal 581, 583
(97) Wilsons Clyde Coal Co Ltd v English Air cooling 57, 86-8 escort Durham (Lord Yards); Albrighton v Knight in shining armor Alfred Medical dos NSWLR 542, 557 (Reynolds JA), 547 (Vow JA agreeing), 565 (Hutley JA agreeing); McDermid v Nash Dredging Reclamation Co Ltd Air conditioning 906, 919 (Lord Brandon); Brodribb Sawmilling Co Ply Ltd v Grey (1985) 160 CLR sixteen, thirty-two (Mason J); Commonwealth v Introvigne (1981) 150 CLR 258, 269-70 (Mason J).
(98) It would be a dramatic overstatement so you can claim that it elevation has actually occurred ‘across the fresh new board’. As an example, you to perspective in which the fault requisite try fundamentally live and you can well (at the very least currently) is the responsibility away from regional authorities to have negligence: discover Brodie v Singleton Shire Council (2001) 206 CLR 512, 527-8 (Gleeson CJ), 577-82 (Gaudron, McHugh and you will Gummow JJ), 605-eight (Kirby J), 639 (Callinan J); Burwood Council v Byrnes NSWCA 343 (Unreported, Handley, Beazley and you may Hodgson JJA, ] Aust Torts Account [paragraph] 81-688, 64 543 (Handley JA), 63 547-8 (Promote AJA); Richmond Valley Council v Updates Aust Torts Records [paragraph] 81-679, 69 352-3, (69) 361-2 (Heydon JA); Wilkinson v Laws Process of law Ltd NSWCA 196 (Unreported, Meagher and you can Heydon JJA and you will Rolfe AJA, ) -, – (Heydon JA).
(99) Among the best understood comments in this regard is that out of McHugh JA inside the Bankstown Foundry Ply Ltd v Braistina Aust Torts Records [paragraph] 80-713 just who mentioned that ‘[t]hroughout the common laws from carelessness . the grade of care and attention requisite regarding a great accused has actually went close into the border off rigid liability’: during the 69 127. Whether or not McHugh JA’s statement try reproved toward attract the newest High Courtroom since ‘unfortunate for the habit of mislead’: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307 (Mason, Wilson and you can Dawson JJ), it’s been endorsed elsewhere toward multiple times: select, like, Inverell Municipal Council v Pennington Aust Torts Accounts [paragraph] 81-234, 62 406, in which Clarke JA said that McHugh JA’s review truthfully shown the newest progressive legislation.