From:                                                       Neil Foster <neil.foster@newcastle.edu.au>

Sent:                                                         Tuesday 10 September 2024 02:36

To:                                                            Prue Vines; Tim Paine; Jason W Neyers; Brandon D. Stewart; obligations

Subject:                                                   Re: Australian negligence law - unique

 

Dear Brandon and colleagues;

One other difference between UK and Australian common law is in the way that the area of non-delegable duty has developed. I have a piece on this from a few years ago with more details: https://works.bepress.com/neil_foster/97/ . The UK took some time to recognise an NDD applying for pupils in schools- see Woodland v Essex CC [2013] UKSC 66, [2014] 1 AC 537, which had been recognised by the HCA in Commonwealth v Introvigne (1982) 150 CLR 258 for a long while.

There is now also a difference in this area between the UK and Australia on whether an NDD applies to roads authorities conducting work on public roads, as to which the HCA has said (contrary to UK authority) that there is no NDD applicable: see Leichhardt Muncipal Council v Montgomery (2007) 230 CLR 22.

Also (though this is outside the negligence area) these days the UKSC has recognised possible NDD liability for intentional torts, in Armes v Nottinghamshire County Council [2017] UKSC 60 at [51], whereas at the moment the HCA decision in NSW v Lepore (2003) 212 CLR 511 says this is not possible here. (The question will I think be reconsidered in the appeal decision from Bird v DP (A Pseudonym) [2023] VSCA 66, (2023) 69 VR 408, on which the HCA is currently reserved. I have a piece on this here: https://works.bepress.com/neil_foster/147/ )

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

University of Newcastle, NSW

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle
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From: Prue Vines <p.vines@unsw.edu.au>
Date: Tuesday, 10 September 2024 at 10:21 AM
To: Tim Paine <Timothy.Paine@uts.edu.au>, Jason W Neyers <jneyers@uwo.ca>, Brandon D. Stewart <brandon.stewart@uts.edu.au>, obligations <obligations@uwo.ca>
Subject: Re: Australian negligence law - unique

Sorry Brandon I didn't see the earlier email with the cutoff date. I think Gummow J'S  and Hayne J's emphasis on the detail of the scope of the duty of care is very significant and continues to sometimes make delineation of duty v breach tricky. 

Prue

 

Prue Vines

Professor,  Co-Director Private Law Research & Policy Group, FAAL, FSEA

 

School of Private & Commercial Law, UNSW Law & Justice

Room 216, Level 2, Law Building
UNSW SYDNEY 2052

From: Tim Paine <Timothy.Paine@uts.edu.au>
Sent: Tuesday, September 10, 2024 9:56:24 AM
To: Jason W Neyers <jneyers@uwo.ca>; Brandon D. Stewart <brandon.stewart@uts.edu.au>; obligations <obligations@uwo.ca>
Subject: Re: Australian negligence law - unique

 

Also (but before 2010) for construction defects (economic loss) there is a useful comparison of Australia and Canada (also US and UK) in Bryan v Maloney (1995) 182 CLR 609 - Brennan J's dissent is interesting - decided under proximity, and subsequently in Woolcock Street Investments (2004) 216 CLR 515 - decided under salient features with numerous references to Bryan.

 

From: Jason W Neyers <jneyers@uwo.ca>
Sent: Tuesday, 10 September 2024 9:17 AM
To: Brandon D. Stewart <brandon.stewart@uts.edu.au>; obligations <obligations@uwo.ca>
Subject: [EXTERNAL] RE: Australian negligence law - unique

 

How about the differences between negligently supplied building structures: ie Winnipeg Condo and Brookfield Multiplex and the differences in the recovery of relational economic loss which differs in the 3 jurisdictions at a certain level of generality.

 

esig-law

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

From: Brandon D. Stewart <Brandon.Stewart@uts.edu.au>
Sent: September 9, 2024 6:41 PM
To: obligations <obligations@uwo.ca>
Subject: Australian negligence law - unique

 

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Dear all,

 

I’m conducting a study of HCA negligence decisions since 2010. As part of the study, I’m compiling a list of aspects of Australian negligence law that are unique relative to Canada and the UK (and sometimes other common law/civil jurisdictions) during my study period. I’m focusing on the common law, not the state civil liability legislation. So far I have advocate’s immunity and (arguably) the salient features approach to novel duties (but not really its content).  

 

Is anyone aware of any other examples (even prior to 2010)?

 

Many thanks!

 

Dr. Brandon D. Stewart, J.D., LL.M., J.S.D.

Lecturer

Faculty of Law

University of Technology Sydney

PO Box 123 Broadway NSW 2007 Australia

uts.edu.au

 

 

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