scholarly journals Time to Abolish the Rule in Searle v Wallbank for Negligence and Nuisance Claims

2008 ◽  
Vol 13 (2) ◽  
pp. 101
Author(s):  
Anthony Gray
Keyword(s):  
General Principle ◽  
Common Law ◽  
Law Reform ◽  
Duty Of Care ◽  
General Application ◽  
High Court ◽  
Legal Principles ◽  
The Common ◽  
Massive Development

<p>In this article, the author suggests that the old common law rule denying that an owner of property owes a duty of care in respect of escaping animals should be abolished. After discussing the original English case in which this finding was made and the reasons for its creation, the author questions whether the principle remains coherent with other legal principles in tort, including the massive development of the common law of tort in recent years. He concludes that the rule is an anachronism and should be abandoned. If the reasoning for the decision were ever applicable to Australian conditions, it is not applicable any longer. The rule reflects an<br />exception to a general principle of now universal acceptance, without justification. The Australian High Court should take the opportunity to abandon the rule, in favour of the general application of tort principles to resolve such disputes. The courts are an appropriate law reform body in this context.</p>

Bearing the Economic Loss of Industrial Action: The Payment of Striking Employees under the Fair Work Act 2009 (Cth)

2013 ◽  
Vol 18 (2) ◽  
pp. 292
Author(s):  
Karen Wheelwright
Keyword(s):  
Common Law ◽  
Economic Loss ◽  
Court Decision ◽  
Political Climate ◽  
High Court ◽  
Legal Principles ◽  
Industrial Action ◽  
The Common ◽  
The Right

This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate.

Still Awaiting Clarity: Why Victoria’s New Civil Liability Laws for Organisational Child Abuse Are Less Helpful than They Appear

2020 ◽  
Vol 43 (2) ◽  
Author(s):  
Laura Griffin ◽  
Gemma Briffa
Keyword(s):  
Child Abuse ◽  
Common Law ◽  
Strict Liability ◽  
Civil Liability ◽  
Royal Commission ◽  
Duty Of Care ◽  
High Court ◽  
Vicarious Liability ◽  
Statutory Duty ◽  
Institutional Responses

In 2017 Victoria became the first Australian jurisdiction to initiate substantive reforms to its civil liability laws, to address barriers faced by plaintiffs seeking to hold institutions liable for child abuse. The new law, based on recommendations arising from a Victorian inquiry, establishes a statutory duty of care owed by organisations to take reasonable precautions against abuse of children under their care or supervision. On its face, the Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic) looks like a helpful clarification of this complex area of law. However, when viewed within the context of the work of the Royal Commission on Institutional Responses to Child Sexual Abuse, as well as common law principles – particularly strict liability in the areas of non- delegable duty and vicarious liability, and the High Court decision of Prince Alfred College Inc v ADC – we see that barriers and uncertainties remain.

10. Distributions and maintenance of capital

2019 ◽  
pp. 252-281
Author(s):  
Derek French
Keyword(s):  
General Principle ◽  
Common Law ◽  
Court Cases ◽  
Share Capital ◽  
Capital Transfer ◽  
The Common ◽  
A Company

This chapter examines the controls imposed on return of a company’s capital to its members, first by considering the common law general principle that return of capital to shareholders is illegal unless permitted by statute. It then discusses the problem of how to distinguish between a legal distribution of profits and an illegal return of capital; transfer of profits to a capital redemption reserve and use of profits to pay up bonus shares; company’s issuance and redemption of redeemable shares or purchase of its own shares; purchased shares as treasury shares; and how a company may reduce its issued share capital by special resolution. The chapter also looks at capitalisations and employees’ share schemes. It includes analysis of three court cases that are particularly significant to distributions and the maintenance of capital.

5. Psychiatric injury

2019 ◽  
pp. 48-59
Author(s):  
Carol Brennan
Keyword(s):  
Common Law ◽  
Duty Of Care ◽  
Physical Injury ◽  
Control Mechanisms ◽  
The South ◽  
The Common ◽  
The Law

This chapter discusses the law on psychiatric injury. Psychiatric injury which is not derived from physical injury is a type of damage which is not always recoverable in negligence. It is an aspect of duty of care. The range of allowable actions has evolved through developments of control mechanisms in the common law, often policy based. The legal distinction between the primary and secondary victim is explored, as are more atypical situations. The four key cases are McLoughlin v O’Brian (1983), Alcock v Chief Constable of South Yorkshire Police (1991), Page v Smith (1995), and White v Chief Constable of the South Yorkshire Police (1999).

3. Special duty problems: omissions and acts of third parties

2019 ◽  
pp. 49-59
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Duty Of Care ◽  
The Third ◽  
The Common ◽  
Relationship Of ◽  
Special Duty

This chapter discusses the problem of when a duty of care arises in respect of negligent omissions, or for the actions of a third party. The common law takes the view that it would be too great a burden to impose liability upon a person for a mere omission, or for the actions of others. Despite this, duties can in fact be imposed in various ways, all of which focus on the reliance of the claimant upon the defendant. This can come about either by the previous conduct of the defendant, which induces reliance by the claimant that the defendant will continue to act in that way, or by reliance which comes out of a relationship of dependence between the parties. As regards third parties, a duty may arise where the defendant has control over or responsibility for the third party’s actions.

19. The doctrine of frustration

2018 ◽  
Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Islamic Republic ◽  
Islamic Republic Of Iran ◽  
Commercial Purpose ◽  
The Common ◽  
The Law

This chapter investigates the scope of the doctrine of frustration which was developed to deal with cases where events occur after a contract is made which render the agreement illegal, or impossible to perform, or which fundamentally change the nature of the obligations undertaken by the parties. The doctrine operates within strict limits and its use is restricted in cases where, although the commercial purpose of the contract has been drastically affected by unforeseen events, the performance of the contract is still possible. The position under the Law Reform (Frustrated Contracts) Act 1943 and under the common law, including for example, the recent cases of Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association (Bermuda) Ltd and Olympic Airlines SA (in Special Liquidation) v ACG Acquisition XX LLC, are examined, collectively demonstrating how the doctrine currently operates.

9. Employers’ liability and non-delegable duties

2018 ◽  
Author(s):  
Vera Bermingham ◽  
Carol Brennan
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.

12. Hearsay admissible by statute in civil proceedings

2018 ◽  
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Civil Justice ◽  
Civil Proceedings ◽  
The Common ◽  
Hearsay Rule ◽  
Oral Evidence

Under the common law rule against hearsay, any assertion, other than one made by a person while giving oral evidence in the proceedings, was inadmissible if tendered as evidence of the facts asserted. The Civil Evidence Act 1968 constituted a major assault upon the common law rule in civil proceedings by making provisions for the admissibility of both oral and written hearsay subject to certain conditions. In June 1988 the Civil Justice Review recommended an inquiry by a law reform agency into the usefulness of the hearsay rule in civil proceedings and the machinery for rendering it admissible. The recommendations were put into effect by the Civil Evidence Act 1995. This chapter discusses the admissibility of hearsay under the Civil Evidence Act 1995; safeguards; proof of statements contained in documents; evidence formerly admissible at common law; and Ogden tables.

scholarly journals THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

2019 ◽  
Vol 78 (3) ◽  
pp. 545-569
Author(s):  
Tom Cornford
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
Duty Of Care ◽  
Public Authorities ◽  
The Public ◽  
The Common

AbstractIn this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.

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