(82) As an instance, legal payment systems which do not require claimants to ascertain fault on the behalf of brand new injurer is ubiquitously styled ‘no-fault’ plans: get a hold of, such, ‘Symposium: Tort Law–No-fault Insurance’ (1989) twenty six San diego Law Comment 977.
(83) Get a hold of Cane, ‘Fault and you will Rigorous Liability getting Spoil from inside the Tort Law’, more than n 8, 187-9; Cane, Responsibility in-law and you may Morality, significantly more than letter 8, 82-cuatro.
(84) Indeed, there can be cause to believe that under the generally defunct common legislation types of strict liability, a number of men and women stored purely responsible had been in fact at fault, as these instances of strict liability basically operated in situations where defendants got involved with abnormally risky affairs: select John Fleming, Legislation of Torts (9th ed, 1998) 369.
Note, however, that McHugh J later recanted their report following the Highest Court’s decision from inside the Bankstown Foundry Pry Ltd v Braistina 1986) 160 CLR 301: Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 329-31
(86) Find, such, Bugge v Brownish (1919) twenty six CLR 110; Canadian Pacific Rail Co v escort service Renton WA Lockhart Air-con 591 ; Phoenix Neighborhood Inc v Cavenagh (1996) twenty-five MVR 143.
(90) Kondis v County Transport Expert (1986) 154 CLR 672, 687 (Mason J). Pick fundamentally Glanville Williams, ‘Liability to have Independent Contractors’ (1956) 14 Cambridge Rules Record 180; J P Swanton, ‘Non-Delegable Duties: Accountability towards the Negligence of Separate Contractors’ (Pt step 1) (1991) cuatro Record from Deal Legislation 183; J P Swanton, ‘Non-Delegable Commitments: Accountability to the Negligence regarding Separate Contracts’ (Pt dos) (1992) 5 Log away from Deal Laws twenty six.
(93) Select, 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 brand new Southern Wales v Lepore (2003) 212 CLR 511, 599 (Gummow and you can 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-con 57, 86-8 (Lord Yards); Albrighton v Royal prince Alfred Hospital dos NSWLR 542, 557 (Reynolds JA), 547 (Guarantee 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 Gray (1985) 160 CLR sixteen, thirty-two (Mason J); Commonwealth v Introvigne (1981) 150 CLR 258, 269-70 (Mason J).
(98) It could be a remarkable overstatement to help you point out that so it elevation have occurred ‘across the new board’. Such as, one to framework where in fact the fault requisite is actually basically live and you may well (at least presently) is the responsibility out of local government getting carelessness: come across Brodie v Singleton Shire Council (2001) 206 CLR 512, 527-8 (Gleeson CJ), 577-82 (Gaudron, McHugh and Gummow JJ), 605-seven (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 (Foster AJA); Richmond Valley Council v Condition Aust Torts Reports [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 may Rolfe AJA, ) -, – (Heydon JA).
(99) One of the best recognized comments in this regard is that away from McHugh JA within the Bankstown Foundry Ply Ltd v Braistina Aust Torts Profile [paragraph] 80-713 exactly who mentioned that ‘[t]hroughout the common law out-of neglect . the grade of care and attention called for of a beneficial offender have moved intimate on the edging of tight liability’: at the 69 127. Though McHugh JA’s statement is reproved into the appeal to the brand new Higher Legal once the ‘unfortunate for its tendency to mislead’: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307 (Mason, Wilson and you can Dawson JJ), it’s been recommended elsewhere on numerous instances: see, like, Inverell Civil Council v Pennington Aust Torts Reports [paragraph] 81-234, 62 406, in which Clarke JA asserted that McHugh JA’s review truthfully reflected this new progressive legislation.