The New Liability Structure in Australia - Swiss Re Liability Conference
THE NEW LIABILITY STRUCTURE IN AUSTRALIA
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
SWISS RE LIABILITY CONFERENCE
SYDNEY
14 SEPTEMBER 2004
The District Court of New South Wales has jurisdiction to hear motor accident claims and work injury damages claims irrespective of the amount claimed and all other common law claims where the amount claimed does not exceed about $750,000. Its civil jurisdiction is, to a substantial degree, a personal injury jurisdiction. Filings in the District Court have fallen from about 20,000 in calendar year 2001, to 13,000 in 2002 and to 8,000 in 2003. The reduced rate of filings is continuing this year. It is reasonably clear that something dramatic has happened to civil litigation in New South Wales. Similar effects are seen in other states.
What these figures reveal is a dramatic change in the practical operation of the law of negligence in Australia over a few years. This is the result of two factors. First, there has been a substantial shift in judicial attitudes at an appellate level, led by the High Court of Australia. Secondly, there have been major changes to the law of negligence implemented by statute.
One lesson we must all learn from history is never to underestimate the ingenuity of the legal profession when faced with such dramatic changes to its customary practices. I am reminded of the attempt by the City of New York to control its burgeoning litigation bill by adopting a law to the effect that the City could not be sued for a defect in a road or sidewalk unless it had had fifteen days' notice of the specific defect. The plaintiff lawyers, or as, they call themselves, trial lawyers of New York City, established the BAPSPC, the Big Apple Pothole and Sidewalk Protection Committee. The function of this committee was to employ persons to continually tour the streets and footpaths of New York to note each and every blemish and, forthwith, to give the City of New York precise details of each defect. Regular reports cataloguing the notices which had been given to the City were available for sale to trial lawyers[1].
At any one time the total cost of curing the defects of which the city had been given notice was several billion dollars. Last year the Mayor of New York complained that in calendar year 2002 alone, the city received 5,200 maps from BAPSPC spotters which identified some 700,000 blemishes[2]. Needless to say the city has never successfully defended a case under the fifteen days' notice law. I am confident that Australian lawyers lose little by way of invidious comparison with their American cousins on the scale of creativity.
The Historical Background
For well over a century judges were universally regarded, in all common law jurisdictions, so far as I am aware, as mean, conservative and much too defendant-oriented. This led parliaments to extend liability, commencing with Lord Campbell's Act, then the abolition of the doctrine of common employment, the abolition of the immunity of the Crown, the creation of workers' compensation and compulsory third party motor vehicle schemes and provision for apportionment in the case of contributory negligence.
In Australia, about twenty to twenty-five years ago, the process of legislative intervention changed its character. It proceeded on the basis that the judiciary had become too plaintiff-oriented. A generational change in the judiciary coincided with a change in the opposite direction in the social philosophy of the broader polity, which came to re-emphasise persons taking personal responsibility for their actions. There may very well be an iron law which dooms judges to always be a decade or two behind the times.
Throughout Australia, in different ways and at different times, new regimes were put in place from about the early 1980s, particularly for the high volume areas of litigation involving motor vehicle and industrial accidents. In Australia's second largest state of Victoria, a no fault scheme for traffic accidents was established similar to the more wide-ranging New Zealand scheme. In the largest state of New South Wales such a scheme was actively considered but not, in the event, adopted. In all states what had come to be regarded as common law rights were significantly modified by legislative intervention. When I say, "come to be regarded", many of the causes of action were only available because of the previous century of legislative change, to which I have referred, which overrode the common law.
The undefined elements of the tort of negligence left much open. What damages are remote? What does "commonsense" suggest as the cause? When is a contribution to the creation of a risk "material"? Should a limitation period be extended? Should the plaintiff's evidence be accepted? How should one choose between two widely divergent experts' opinions, each of which is probably at, or beyond, the boundaries of the range of legitimate opinion? Should the plaintiff be believed about what effect a hypothetical warning would have had upon him or her? There is much flexibility in the outcome of negligence litigation.
Professor Atiyah referred to a long-term historical trend of expanding the scope of the tort of negligence and the damages recoverable for the tort, as "stretching the law"[3]. There was, however, an equivalent, parallel trend, perhaps of even greater practical significance, of 'stretching the facts'.
Contemporary judges generally reached intellectual maturity at the time that the welfare state was a widely accepted conventional wisdom. The "progressive" project for the law of that era was to expand the circumstances in which persons had a right to sue. We are now more conscious of limits - social, economic, ecological and those of human nature. Hobbes has triumphed over Rousseau, but not over Locke. For several decades now the economic limits on the scope of governmental intervention have received greater recognition. The law cannot remain isolated from such broader trends in social attitudes.
In particular there has been a significant change in expectations within Australian society, as elsewhere, about persons accepting responsibility for their own actions. The idea that any personal failing is not your fault, that everyone can be categorised as a victim, has receded. The task is to restore an appropriate balance between personal responsibility for one's own conduct and expectations of proper compensation and care.
This is, of course, an issue which resonates beyond the law. The change is noticeable over the decades. It is not likely that Donald Bradman would ever have taken a banned substance. If he had, however, it is quite inconceivable that he would have blamed his mother. There is a shift back to accepting responsibility, as Adam Gilchrist showed when he walked without the umpire having raised a finger.
The debate in Australia, leading to recent statutory changes, focused on particular cases and a range of circumstances in which persons recovered damages, sometimes substantial damages, when there could be little doubt that they were the author of their own misfortune. One case referred to frequently involved a young man diving from a cliff ledge into a swimming pool without checking the depth of the water. The idea that the authority which owned the land should have put up a warning sign advising against diving is no longer, with the changing times, regarded as a reasonable basis for liability.
There seems no doubt that the past attitude of judges, when finding liability and awarding compensation, was determined to a very substantial extent by the assumption, almost always correct, that a defendant is insured. The result was that the broad community of relevant defendants bore the burden of damages awarded to injured plaintiffs. Judges may have proven more reluctant to make findings of negligence, if they knew that the consequence was likely to be to bankrupt the defendant and deprive him or her of the family home.
The line between the kinds of mistakes or unfortunate results that are an inevitable concomitant of day to day human interaction, including professional practice, on the one hand, and the sorts of mistakes or results which should not occur at all, on the other hand, may have been drawn in a different way on many occasions in the absence of the ubiquity of insurance. The various choices that the fungibility of the concepts associated with the tort of negligence throws up may very well have been made differently.
Over the course of a number of decades the effect of judicial decision-making was, in substance, to transform the tort of negligence from a duty to take reasonable care into a duty to avoid any risk by reasonably affordable means. That, in my opinion, was the practical effect of a stream of judicial decision-making at appellate level, particularly for that vast body of decisions that never come before an appellate court and, indeed, the even larger proportion of claims that are settled out of court in the light of a practitioners' understanding of the likely outcome.
The Australian judiciary has now become more sensitive to the broader implications of individual decisions by reason of the cumulative effect of such decisions. The progressive paring back of the tort of negligence by statutory changes over the course of two plus decades has itself had an impact on judges. Furthermore, evidence accumulated about the unintended consequences of the tort system. The practice of defensive medicine is a good example. Both my brothers are doctors. Even in the late 1960s I recall the scorn that they expressed about their American colleagues who refused to stop at the scene of road accidents. Australian doctors have long since joined them.
I have expressed the view both in judgments and extra judicially, that the judiciary cannot be indifferent to the economic consequences of its decisions. Insurance premiums for liability policies can be regarded as, in substance, a form of taxation (sometimes compulsory but ubiquitous even when voluntary) imposed by the judiciary as an arm of the state. For many decades there was a seemingly inexorable increase in that form of taxation by judicial decision[4]. In Australia that increase has stopped as a result of a change in judicial attitudes and is likely, subject, of course, to the vagaries of the insurance market, to be reversed, as a result of legislative intervention throughout Australia.
At least indirectly in the case of judges, and overtly in the case of the parliaments, the shift in attitude has been driven by the escalation of insurance premiums and, in recent years, by the unavailability of insurance in important areas on any reasonable terms or at all.
The year 2002, where insurance premiums escalated rapidly in numerous categories of insurance, was the year in which, for Australia, quite a number of chickens came home to roost. By that time, however, the change in judicial attitudes was well under way.
It is at the boundaries of the tort, where new and different situations are under consideration, that the change in judicial attitude has become most apparent. However, that change must also have an affect on the outcome of cases even in the well-established categories. The various choices available to a judge in terms both of acceptance of evidence and the formulation of the judgments required to determine such cases will be affected by the kind of change of attitude to which I refer.
There has been a steady stream of cases in the appellate courts, particularly in the High Court, in which the outcomes would have been different if the process of stretching the law and of stretching the facts had not been arrested and reversed[5].
People who trip on footpaths no longer always successfully sue local councils. The owner of a shopping mall was not responsible for criminal conduct in the mall's car park. The authors of the rules for rugby were not liable to injured players. Nor was the person who conducted an indoor cricket arena. A cinema was not liable when a client tried to sit down in a darkened cinema but the seat was, as is common, retractable. A hotelier was not liable for injuries suffered after departure by an intoxicated patron. A club with gambling machines was not liable to refund the losses of a compulsive gambler whose cheques it had cashed. The driver of a vehicle was not liable when a child suddenly darted out into the road. A school authority was not liable for intentional criminal conduct, relevantly sexual abuse, of a teacher against a pupil. Governmental regulators were not liable for the health consequences of a failure to regulate self-interested commercial actors whose conduct caused injury. Governmental decision-makers whose intervention, for example, in family relationships, caused psychiatric injury on the basis of allegations that proved incorrect, were not liable for those injuries. Employers which conducted disciplinary or dismissal actions with adverse psychiatric consequences were also found not to be liable. A prison authority was found not liable for psychiatric injury caused to the victim of a crime by an escapee nor for the defects of her prematurely born son - Dorset Yacht was doubted.
It is quite likely that many of these cases would have been decided differently only a few years ago. I do not wish to imply that the development has been all one way. There have been important cases in which liability has been established in circumstances where the issue was debatable. Nevertheless, the drift of judicial decision-making is plain at a senior appellate level. It is unquestionably having an effect on trial judge decision-making of a substantial character.
The most difficult area with which the law is still grappling in this regard is that of liability for psychiatric injury. Difficult issues of a philosophical and factual character remain to be resolved in this field. The application of legal tests, in a context where expert evidence has few, and often no, objectively verifiable elements, is particularly difficult. This is exacerbated by the fact that the relevant area of expertise is only to a limited extent based on scientific research and has a wide element of discretion. In this area, perhaps more than any other, the Whig approach to science - the assumption that improvement of knowledge occurs in some kind of straight line of progress, rather than being cyclical or, dare one say so, a creature of fashion - is not likely to be correct[6]. It is particularly difficult to determine where to draw the line between refusing to give recovery for the normal stresses of life, including working life, and those extraordinary stresses that people should never have suffered.
In this area Australian law is now unlikely to develop in any principled way by reason of statutory intervention, to which I will presently refer.
The Sense of Crisis
Legislative change over the last year or two has been driven by a perceived crisis in the price and availability of insurance. In Australia this focused on public liability and medical negligence. However, similar pressures had been building up in all areas for a number of years, including the high volume areas of industrial accidents and traffic accidents.
Over 2002-2003 there were virtually daily reports about the social and economic effects of increased premiums: cancellation of charitable and social events such as dances, fetes, surfing carnivals and Christmas carols; the closure of children's playgrounds, horse riding schools, adventure tourist sites and even hospitals; the early retirement of doctors and their refusal to perform certain services, notably obstetrics; local councils were shutting swimming pools and removing lethal instruments such as seesaws and roundabouts from children's playgrounds; our Sydney tabloid proclaimed "The death of fun"; many professionals could not obtain cover for categories of risks, leading to withdrawal of their services; for example, engineers advising on cooling tower maintenance could not get cover for legionnaires disease, building consultants could not get cover for asbestos removal, agricultural consultants could not get cover for advice on salinity; midwives were unable to get cover at any price; many professionals were reported to have disposed of assets so as to be able to operate without adequate cover or even any insurance.
The issue became highly charged politically. The talk was of "crisis". The concern of governments was motivated in part by the liability of government directly as a major employer, property owner and provider of services, particularly in education, health and transport. This was, however, reinforced by the emergence, over recent years of a role for government as a backstop for private insurers, as the reinsurer of last resort. It took many years for the government role of "lender of last resort" to take the institutional form of the contemporary central bank. We are in the early stages of institutional development of the "reinsurer of last resort" function.
In Australia we have had a range of proposals in different areas for the government to underwrite existing insurers, e.g. for the risks associated with terrorism. Of particular significance is the acceptance that it was politically impossible for the government to stand by and let a major insurer default on its obligations. A national scheme was implemented to support the major medical insurer when it appeared to be insolvent. Governments at both levels of our federal system became involved in protecting policyholders when a major general insurer, HIH Limited, went into liquidation. This is exactly what happened long ago in the case of banks.
It is quite clear that governments have a very real financial interest in the operations of the tort system.
Whether by way of increases in insurance premiums or by way of a call on tax payers' funds it became widely accepted at all levels of Australian government and in the general community that the existing tort system had become economically unsustainable. The particular focus was the sudden escalation of premiums. Insurance premiums are the result of a multiplicity of factors, however, the cost of claims sets the basic structural parameters within which other forces operate. Those costs have increased considerably over recent decades.
Although the practical operation of the law of torts must determine to a substantial degree the level of premiums for liability insurance, the suddenness and size of the increases and the expansion of policy exclusions reflected developments in the insurance market, 9/11, HIH, etc. The underlying cause of the problem must, however, be distinguished from the immediate cause of the crisis[7]
Legislative Change
In New South Wales legislative changes had commenced in a number of areas prior to the events of 2002-2003. Those events, however, led to a national response in which many of the New South Wales proposals were adopted more widely and legislation went even further than had been considered appropriate until that time.
The Commonwealth and the states appointed an inquiry to review the law of negligence. The Panel was chaired by the Honourable David Ipp, a judge of the New South Wales Court of Appeal. By and large, the recommendations of this panel have been implemented, with some variation, in all states and territories, with complementary national legislation almost complete. The principal thrust of the changes is the limitation of circumstances in which damages can be recovered for personal injury and the restriction of the heads and quantum of damage that can be so recovered. The changes are wide ranging and include the following:
* The not "far fetched or fanciful" test for foreseeability has been replaced by a test that a risk be "not insignificant" which, despite the double negative, is of a higher order of possibility.
* A requirement has been introduced identifying a range of factors which have to be taken into account when determining breach of duty - referred to as the "negligent calculus". These factors include probability of harm, seriousness of harm, the burden of taking precautions, the social utility of the activity and precautions that may be required by similar risks, not just the particular causal mechanism of the case before the court. This statutory requirement, which in many respects reflects the common law, will focus attention on matters which may not have been given adequate weight, particularly in lower courts.
* An express acknowledgment of the normative element in determination of issues of causation is adopted by applying a test of whether responsibility for the harm should be imposed on the negligent party.
* An express provision emphasising that the plaintiff always bears the onus of proving any fact relevant to the issue of causation, thereby implicitly overturning judgments which suggested that in the case of evidentiary gaps - often medical causation issues - proof on the issue of causation could shift from the plaintiff to the defendant.
* The introduction of a modified version of the Bollam test, which was not the law in Australia, in all cases of professional negligence providing that treatment was not negligent if it occurred in accordance with an opinion widely held amongst respected practitioners, subject to the ability of the court to intervene if the opinion was "irrational". The Bollam test does not, however, apply to a duty to warn or inform. This has led to different approaches. In New South Wales there is no duty to warn of an obvious risk.
* The enactment of a "person of normal fortitude" test for purposes of foreseeability of mental harm, which the Ipp Panel identified as representing the majority view in the most recent High Court authority on the subject, although the judges who did in fact hold that view have since accepted that the majority regarded normal fortitude as merely a relevant consideration and not as an independent test[8]. Nevertheless, the statutory test is likely to deny liability in many situations in which the common law would have imposed it.
* In a number of states, including New South Wales, the legislature has gone beyond the Ipp recommendations by restricting recovery for pure mental harm to a person who directly witnessed a person being killed or injured or put in peril or who was a close family member of the victim.
* A number of states have adopted, in different terms, a policy defence available to all public authorities, requiring that the interests of individuals after materialisation of a risk have to be balanced against a wider public interest, including the taking into account of competing demands on the resources of a public authority. In New South Wales the defence is stated as principles for determining whether a duty exists or breach has occurred, expressly acknowledging that performance may be limited by financial and other resources available to the authority, that the general allocation of those resources by an authority is not open to challenge and that the conduct of the authority is to be assessed by reference to its full range of functions. Also, in New South Wales the legislation provides that a public authority is not liable for a failure to exercise a function to prohibit or regulate an activity if the authority could not have been required to exercise that function in mandamus proceedings instituted by the claimant. This provision may well come to test the limits of the availability of mandamus and principles of locus standi.
* The liability of a volunteer or a good samaritan is limited.
* Changes are made to the law about voluntary assumption of risk and contributory negligence. An intoxicated person is deemed to have contributed twenty-five percent to the injury.
* The liability of persons who act in self-defence to criminal conduct is restricted.
* An injured person is deemed to have been aware of any obvious risk, about which there is no duty to warn save in the case of a request or in the case of a professional service.
* Provision is made that an apology cannot constitute an admission, regarded as of particular significance in the field of medical negligence. Doctors can say sorry for a result, without fear of making an admission of liability.
There are also thresholds, caps and restrictions on recoverable damages, including:
* Establishment of an indexed maximum for the recovery of economic loss, generally three times average weekly earnings. Persons earning more than that have the ability to take out first person loss of earnings insurance.
* Establishment of a threshold of a percentage of permanent impairment before a person may recover general damages at all, generally a sliding scale of fifteen percent up to about thirty percent, after which full recovery is permitted.
* Establishment of an indexed maximum for recovery of general damages.
* Restrictions have been imposed on the recovery of damages for provision of gratuitous services.
* The rate of interest that can be awarded on damages has been fixed and generally reduced.
* The discount rate established by the courts for the determination of the present value of future loss has been fixed and increased.
* Exemplary damages have been abolished in many jurisdictions and, to some degree, aggravated damages have also been abolished. Exemplary damages were rarely awarded and this would make little practical difference to insurance premiums. Aggravated damages represent actual loss. This change does, however, pander to the current imperative of political life in a media saturated age: to be seen to be doing something. In the heat of the debate it appeared that anything less was more. The reasons proffered for this change are singularly unconvincing.
This recitation of the major changes indicates how wide-ranging and fundamental the alterations of the law have been. Many of the changes were contained in a list of possible amendments to the law which I compiled in an address in 2002 - not including caps and thresholds - and which became something of a template for the subsequent debate[9]. In that address I emphasised the importance of proceeding on the basis of a principled alteration, rather than an underwriter driven alteration of the law.
The earlier changes to the law over the course of some two decades had resulted in significant differences amongst the respective schemes for transport accidents, industrial accidents and medical negligence. These arose because different insurers and administrators were involved in each area of liability. They had a great influence on what changes were required to bring down claims and, therefore, premiums, in a context were government had often announced an objective of reducing premiums in a particular area of insurance by a specific amount. These disparate processes created inexplicable and unjustified variations in the rules which applied. Quite different compensation was available depending on whether injury occurred in a car or in a car park or at work or on an operating table or in a public swimming pool or in a supermarket. The sense of fairness which is essential to the effective operation of the system had been attenuated.
The result of the new regime is to avoid the sense of inequality as a ground for unfairness. It has, however, replaced that ground with others and the debate is actively continuing. In particular, the introduction of caps on recovery and thresholds before recovery - an underwriter driven, not a principled change - has led to considerable controversy. The introduction of a requirement that a person be subject to fifteen percent of whole of body impairment - that percentage is lower in some States - before being able to recover general damages has been the subject of controversy. It does mean that some people who are quite seriously injured are not able to sue at all. More than any other factor I envisage this restriction will be seen as much too restrictive.
The evidence suggested that in smaller claims, say up to about $100,000, about half of total damages awarded was in the form of general damages. The threshold has made these claims virtually uneconomic from the point of view of the legal profession. Perhaps more than any other single change, it is the threshold for general damages that has led to the dramatic fall in filings in the District Court. This has been reinforced by the cap on lawyers' fees.
Small claims raise very real issues about transaction costs. Nevertheless, there is likely to be a growing body of persons who have suffered injury which they believe to be significant and who resent their inability to receive compensation.
The effective abolition of what insurance companies regard as small claims, albeit the matters are not small from the perspective of the injured person, is expected to have a considerable impact on premiums. Insurers convinced the governments that this was an important aspect of the changes required. My own suspicion is that insurers simply find it easier to compute the effect of such a change than of changes in applicable legal principle. Underwriters do not believe that they are capable of predicting changes in judicial behaviour and who can blame them.
Proportionality
One aspect of the legislative change that is not yet in force, but will be in the near future, is the adoption of a system of proportionate liability with respect to economic loss. Relevant legislation has been passed in a majority of states but requires amendment to bring the transitional provisions into line with the recently proclaimed Commonwealth legislation.
The traditional approach of awarding damages in tort, or for breach of a contractual term of skill and diligence, has been one of what has been called solidary liability, where the liability is joint and several in situations where the same damage is caused by negligence on the part of more than one person. A proposal to introduce a system of proportionality was considered in Australia about a decade ago and rejected. The climate established by the recent debate on tort law reform has been such that the system of proportionate liability has been adopted and is on the verge of being introduced.
A defendant who is only ten percent responsible for the injury will only bear ten percent of the damages. Joint and several liability is preserved in the case of a defendant who intended to cause or who fraudulently caused economic loss or damage to property. Vicarious liability and the several liability of partners is also preserved.
This system creates the possibility that a person who has suffered injury will be unable to fully recover. However, it is by no means clear why one defendant, because it is wealthy or insured, should, in effect, become an insurer in favour of plaintiffs against the insolvency or impecuniosity of co-defendants who have contributed more substantially to the economic loss suffered by the plaintiff. The traditional attitude of the law, which favours personal injury plaintiffs, puts them in a different category from those who suffer economic loss.
This is a matter likely to be of particular significance in the area of professional liability for auditors and lawyers who are frequently joined in commercial proceedings simply on the basis of the depth of their pockets, or rather of that of their insurers. In many such cases the directors of a particular company, who are primarily liable for the events leading to economic loss, are not sued at all.
It is quite likely that the new system will change the dynamics of a considerable body of commercial litigation. How that will actually impinge on large cases involving auditor's negligence and the like has yet to be seen. However, the courts will have to determine a new set of principles for allocating responsibility to different actors whose cumulative conduct leads to a single loss. The principal impact of the new regime is likely to be in the sphere of professional indemnity insurance.
Conclusion
The change in the law of negligence in Australia has been quite dramatic. The working out of the new statutory regime has commenced and will take some time. There remains a significant debate as to whether or not the reforms have gone too far. Australian lawyers are focussing attention on the considerable increase that has been reported in insurance company profits. Political pressure on premiums is increasing but, in the long term, the level of premiums will be determined by the renewed ability of Australia to attract insurance company capital, particularly, the capital of reinsurers and by a turn in the insurance market cycle which, sooner or later, is inevitable.
I am conscious that I have used the word "reform", a word that has long since acquired a positive connotation of 'improvement', which puts anyone opposed to the relevant change on the defensive. Not all the changes I have identified would be accepted by Australian lawyers as "reforms" in that sense.
I am reminded of the blistering attack on reformers by Senator Roscoe Conkling, a Republican machine party boss in New York City who said in 1880:
"Some of these worthies masquerade as reformers. Their vocation and ministry is to lament the sins of other people. Their stock in trade is rancid, canting, self-righteousness. ... Their real object is office and plunder. When Dr Johnson defined patriotism as the last refuge of a scoundrel, he was unconscious of the then undeveloped possibilities of the word 'reform'."[10]
I conclude with a note of apprehension, even defeatism, reminiscent of the fate of the New York City 15 days notice regulation. Earlier this year the Commonwealth Government produced a booklet proclaiming the triumph of the tort law reform legislative package throughout Australia. The publication set out in detail the major changes to the law which I have outlined this morning. The introductory chapter of this official publication concluded with a paragraph which struck a discordant note with the self-congratulatory tone of the booklet. It said, under the heading "DISCLAIMER":
"Information contained in this report should not be relied upon without reference to Australian legislation in force from time to time and appropriate legal advice."[11]
Perhaps they were just teasing.
1 The New Yorker April 21 and 28 2003 at p101. See also www.nystla.org.
2 See www.nyc.gov/html/law/pressreleases/pr050602.pdf.
3 Atiyah, The Damages Lottery (1997) Hart Publishing, Oxford, Chapters 2 and 3.
4 See Kinzett v McCourt (1999) 46 NSWLR 32 at [97]; cf at [116].
5 See, Liftronic Pty Ltd v Unver (2001) 179 ALR 321; Derrick v Cheung (2001) 181 ALR 301; Agar v Hyde (2000) 201 CLR 552; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Rosenberg v Percival (2001) 205 CLR 434; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; Sullivan v Moody (2001) 207 CLR 562; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Graham Barclay Oysters Pty Ltd v Ryan (2003) 211 CLR 540; New South Wales v Lepore (2003) 212 CLR 511; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 78 ALJR 628; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52; Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43; Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; Richmond Valley Council v Standing (2002) Aust Torts Rep 81-679; University of Wollongong v Mitchell [2003] Aust Torts Rep 81-708; New South Wales v Paige (2003) Aust Torts Rep 81-676; Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173; New South Wales v Godfrey & Godfrey (2004) Aust Torts Rep 81-741; Amaca Pty Ltd v New South Wales [2004] NSWCA 124; Wyong Shire Council v Vairy [2004] NSWCA 247; Boyded Industries Pty Ltd v Canuto [2004] NSWCA 256.
6 See, for example, the penetrating analysis of Rickard McNally, Remembering Trauma, Harvard Uni Press 2003.
7 I have discussed this in my paper on "Negligence and Insurance Premiums" supra. See also Peter Cane "Reforming Tort Law in Australia: A Personal Perspective" (2003) 27 Melb.U.L.Rev at 49.
8 See Commonwealth of Australia Review of the Law of Negligence: Final Report September 2002 (The Ipp Report), www.revofneg.treasury.gov.au at 9.13 and cf Tame v New South Wales (2002) 211 CLR 317 esp at [16] [61] [109] [196] [273] and [366] and cf Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 77 ALJR 1205 at [98] and [119].
9 See "Negligence: The Last Outpost of the Welfare State" supra note [1].
10 Truesdale, "Rochester Views the Third Term 1880" (1940) 2(4) Rochester History 1 at 5.
11 Reform of liability Insurance Law in Australia, Commonwealth of Australia, February 2004, p 12.
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