(82) Such as, statutory compensation systems that don’t require claimants to determine fault on behalf of the brand new injurer is actually ubiquitously themed ‘no-fault’ strategies: come across, such as for example, ‘Symposium: Tort Legislation–No fault Insurance’ (1989) 26 North park Laws Feedback 977.
(83) Find Cane, ‘Fault and you will Rigid Responsibility to possess Damage in Tort Law’, a lot more than letter 8, 187-9; Cane, Responsibility in-law and Morality, a lot more than n 8, 82-cuatro.
(84) Actually, there clearly was cause to believe that in primarily defunct common laws species of strict liability, numerous those people kept strictly liable have been indeed at fault, because these cases of rigorous accountability essentially operated where defendants got engaged in abnormally harmful affairs: discover John Fleming, Regulations regarding Torts (9th ed, 1998) 369.
Note, but not, one to McHugh J after recanted his declaration following the Highest Court’s decision inside Bankstown Foundry Pry Ltd v Braistina 1986) 160 CLR 301: Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 329-30
(86) Come across, like, Bugge v Brownish (1919) twenty six CLR 110; Canadian Pacific Rail Co v Lockhart Ac 591 ; Phoenix Society Inc v Cavenagh (1996) twenty five MVR 143.
(90) Kondis v Condition Transport Expert (1986) 154 CLR 672, 687 (Mason J). Find essentially Glanville Williams, ‘Liability to have Independent Contractors’ (1956) fourteen Cambridge Law Diary 180; J P Swanton, ‘Non-Delegable Responsibilities: Accountability toward Neglect away from Independent Contractors’ (Pt 1) (1991) cuatro Log away from Package Rules 183; J P Swanton, ‘Non-Delegable Responsibilities: Accountability on Carelessness of Independent Contracts’ (Pt dos) (1992) 5 Journal of Deal Laws twenty six.
(93) Come across, such as for example, 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 new Southern area Wales v Lepore (2003) 212 CLR 511, 599 (Gummow and 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-conditioning 57, 86-8 (Lord Yards); Albrighton v Knight in shining armor Alfred Health 2 NSWLR 542, 557 (Reynolds JA), 547 (Promise JA agreeing), 565 (Hutley JA agreeing); McDermid v Nash Dredging Reclamation Co Ltd Air cooling 906, 919 (Lord Brandon); Brodribb Sawmilling Co Ply Ltd v Gray (1985) 160 CLR 16, thirty two (Mason J); Commonwealth v Introvigne (1981) 150 CLR 258, 269-70 (Mason J).
(98) It would be a remarkable overstatement to help you point out that which elevation have occurred ‘across the newest board’. By way of example, you to framework where the fault criteria is actually basically alive and you will better (at the very least currently) is the responsibility regarding local authorities to own neglect: find Brodie v Singleton Shire Council (2001) 206 CLR 512, 527-8 (Gleeson CJ), 577-82 (Gaudron, McHugh and Gummow JJ), 605-eight (Kirby J), 639 (Callinan J); Burwood Council v Byrnes NSWCA 343 (Unreported, Handley, Beazley and you will Hodgson JJA, ] Aust Torts Profile [paragraph] 81-688, 64 543 (Handley JA), 63 547-8 (Promote AJA); Richmond Valley Council v Condition Aust Torts Account [paragraph] 81-679, 69 352-step three, (69) 361-2 (Heydon JA); Wilkinson v Law Process of law Ltd NSWCA 196 (Unreported, Meagher and you may Heydon JJA and you can Rolfe AJA, ) -, – (Heydon JA).
(99) One of the recommended recognized comments in connection with this would be the fact off McHugh JA into the Bankstown Foundry Ply Ltd v Braistina Aust Torts Records [paragraph] 80-713 which asserted that ‘[t]hroughout the typical rules out of negligence . the standard of care required regarding a accused possess went intimate on the edging away from strict liability’: at the 69 127. In the event McHugh JA’s report is actually reproved towards the interest the latest Large Courtroom as ‘unfortunate because of its habit of mislead’: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307 (Mason, Wilson and you can Dawson JJ), it’s been supported in other places toward several occasions: come across, including, Inverell Municipal Council v Pennington Aust Torts Reports [paragraph] 81-234, 62 406, in which Clarke JA asserted that McHugh JA’s remark precisely shown the latest progressive rules.