The Federation Press

The Statutory Foundations of Negligence


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.

Table of Contents

Note on Abbreviations
Table of Cases
Table of Statutes

1 Introduction
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

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


Of interest...