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A Review of Australia's Tort Law

Nyamweya is a Kenyan scholar who has done many years of research on a diversity of topics

Tort Law

Overview of Tort Law

  • A tort generally refers to a civil wrong which leads to a victim or claimant suffer some sort of harm or loss (Pillai, 2014).
  • For a tort to be considered valid, there has to be three elements; defendant must have had a duty to behave or act in a specific way, the plaintiff must be able to prove that the defendant had a breached his or her duty and the plaintiff must have suffered a loss or injury (Abel Law Firm, 2020).
  • The person who commits the tortuous act will suffer a legal liability for the damages or loss so caused (Chamallas, and Vriggins, 2010).
  • In such a case, the legal action against a tortuous act is to acquire a private civil remedy for the damages and loss.

Challenges for individuals to access Remedy under Tort Law

  • There are a number of challenges that individuals and law enforcement agencies face while pursuing some remedies under tort law. Some of these challenges are listed below
  • The difficult in setting and determining the precise standard for behavior and conduct. How do you determine that the defendant’s conduct or behavior was outside his or her obligation? A prove of this would be challenging
  • Ambiguity on how the law need to be applied in different states
  • The problem of uncertainty that is common with the law of torts. This law keeps on changing and being amended on a regular basis.
  • Difficulties associated with defining wrongdoing

(Oxford University, 2013)

  • There are also other factors that would impair remedial measures for torts including but not limited to insurance arrangements for first parties, existence of a negligence standard, measurement of existing options for the defendants, and uncertainties on pathway exposures, types of harm/injuries among others (Blomquist, 1988).

· Difficulties of Proving Negligence in the Commercial world

  • There is ambiguity on whether businesses are mandated to protect or warn its customers for random crimes that other customers commit.
  • However, it is generally determined that businesses that know about a high probability of crime occuring have a responsibility of taking steps to protect its clients.
  • However, the concept of responsibility/duty for business is wide and extends even beyond those contacts/customers within the physical proximity. This means that a business owes a duty of care to its customers or stakeholders as a result of their actions. Any business will find this aspect of tort law difficult to manage since the occurrence area could be out of their jurisdictions.
  • To establish a duty, negligence plaintiffs require demonstrating that the defendant actually was in a position and breached that duty.
  • Demonstration of a breach is done by indicating the defendant failing to act in a reasonable manner as a compared to a reason person.
  • However, the reasonable person here is one who is never intoxicated, angry, sleepy, or tired. It should be noted that this reasonable person is basically hypothetical and may not be in actual existence.
  • To prove negligence in the business world, the law has to break the causation chain whereby; a business will be held liable for immediate harm but not beyond that (lumenlearning.com, 2019).

The intervention of legislation into the area of negligence, and what that legislation is

On May 2006, the Australian High court rejected a wrongful life claim which attests life to be regarded as a compensable harm. Basically, a wrongful life claim pertains to where a child plaintiff is allowed to initiate an action against a health care provider who is found to have been negligent while diagnosing the plaintiff mother for conditions such as rubella. The condition is said to have no cure and can cause life time impairment for the unborn child if. If this issue is diagnosed earlier, then the mother had a legal right to undertake abortion so as to reduce the child’s suffering. The refusal of this wrongful life claim by an Australian High court which led to formulation of the Civil Liability Act implies that children born disabled as a consequence of the negligence of a doctor cannot claim damages (Ballantyne and Booth, 2006).

Interesting Recent Developments in the area of Negligence

In 2017, the problematic areas in professional liability cases received a considerable number of attentions by the courts. For instance, the issue of when and whether a professional adviser for the defendant owes a responsibility to warn concerning the risk of opinions or his advice being disputed became a problem for the courts in 2017. In professional negligence claims, other advisers especially the counsel could be placed on the same level wit the impugned adviser. However, in the case of Baxendale Walker v Barker the high court overturned the decision to allow other advisers including the leading counsel or employees of a company be considered in the defendants interpretation of events as they are “an unrepresentative group” (Evans, Ogden, and O’Kane 2018).

Any proposals for law reform regarding negligence, and issues that are yet to be resolved within the area of negligence.

The Commonwealth Government's Principles Based Review of the Law of Negligence recently came up with recommendations focused at limiting damages and liability emanating from death and or personal injury. This decision was arrived at out of the rising perception that the present approach of compensating deaths and personal injury had proved to be financially unsustainable. The increased medical liability and damages had eroded the confidence of medical practitioners resulting to low recruitment in high risk areas. Nonetheless, if the proposed changes to the basic principles of negligence do not work in reducing medical liability, a greater attention is likely to be focused towards processes that come into play after negligence is established whereby; the reform is geared towards benefiting both defendants and plaintiffs (Parker, 2011).

Some indication of the areas of commercial practice where negligence principles apply.

An individual who purports to have suffered a loss or injury in a business setting may initiate an action for compensation based on the following contexts

  • In the event when the Australian Consumer Law (ACL) is breached
  • When the contract is breached.
  • When the businesses’ negligence is proved to have caused a loss or harm under tort law (Global Legal Group, 2019).

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