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The latest issue of The Tort Law Review (Volume 29 Part 3) contains the following material:

Articles

Articulating the Concept of Vulnerability in the Duty Question – Francine Rochford

The modern tort of negligence has struggled to set conceptual limits on its articulation of the duty of care in novel cases. Australian courts have settled on articulation of “salient features” of the subject relationship and the “vulnerability” of the plaintiff has carried additional weight. Although the concept has been developed most rigorously in cases existing in a contractual matrix, it is of particular interest in claims against public authorities and intersects with demands that the vulnerability of the plaintiff take a central position in law, politics and ethics. Conversely, the rational, autonomous subject in law has been reasserted in legislative reform to act as an encumbrance on the development of vulnerability as a coherent concept.

The Gendering of Future Loss of Earnings Damages in New South Wales, Australia: An Empirical Analysis, 2002–2023 – Christine Forster, Jennifer Schulz and Jeni Engel

In negligence actions in New South Wales, future loss of earnings is a category of monetary damages for which plaintiffs can seek compensation and refers to the potential income that injured persons might have earned, but for the negligence that caused their injuries. The awards offer a narrative on the value of different societal activities. Qualitative content analysis was used to analyse New South Wales (NSW) negligence cases from 2002 until 2023, in which damages for future economic loss were claimed under s 13 of the Civil Liability Act 2002 (NSW) (CLA). This article argues that gender continues to be a significant factor in how NSW courts calculate these awards for injured girls and women. Those factors include predicted gender pay disparities based on actuarial tables, assumptions about women’s capacity to progress to higher paid occupations, and assumptions that women, but not men, will work part-time, or leave the workforce, to care for children.

Liability for Injuries Caused by Autonomously-Driven Vehicles – A Comment on Matters of Principle and Policy – Martin Allcock

There is a growing body of scholarly literature concerning the potential legal issues which may arise as a result of the increasing use of automated vehicles (AVs). Of particular interest is the issue of who should be liable for injuries caused by such vehicles. The use of AVs presents a significant new challenge to long-established legal principles concerning accessing compensation for injuries, with the potential that many may be arbitrarily locked out of existing compensation schemes. There are a range of potential solutions to this problem, including the implementation of no-fault social insurance schemes and enterprise liability models of compensation. This article considers the legal issues surrounding the question of liability in relation to injuries caused in accidents involving AVs, along with commenting upon how the schemes advanced to address this problem meet principle and policy goals.

The Liability of Public Authorities in Negligence: Does Sharma v Minister for the Environment Break New Ground? – Samantha Climie and Jan McDonald

The circumstances in which public authorities owe a common law duty of care in the exercise of their public functions have long been contentious. Courts have declined to find a duty that would intrude upon the policy functions of the executive arm of government. Sharma v Minister for the Environment (Sharma) is the most recent consideration of these issues. The plaintiffs in Sharma argued that the Commonwealth Environment Minister owed a duty of care in respect of climate harm. The implications of Sharma for climate litigation have been widely considered. Here, we examine how the case furthers the common law on the liability of public authorities. Sharma confirms the proper approach for determining whether a public authority owes a duty of care, provides further guidance on the salient features of control, vulnerability, coherence, and indeterminacy, and considers how the common law ought to take into account the public nature of public authorities in a negligence claim.

For the PDF version of the table of contents, click here: New Westlaw Australia Tort L Rev Vol 29 No 3 Contents.

Click here to access this Part on New Westlaw AU

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