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Tort Law Principals in Australian Legal system

1513 Downloads I Published: 09 Jan ,2019

Introduction

In this modern world, law has gain its significant importance. Law has been defined as the system of rules and regulations which is connected and influenced by the social and governmental institutions. There are different forms of law that includes contract law, civil law, criminal law, etc. Tort law is the type of civil law, which means an act or a deed consist of civil wrong. In this report, it will be discussing about various concepts of tort law in the context of Australian legal system. Also, differences between the Australian and European law will be illustrated in this present paper. In the context of the legal system in Australia, there are various principles under the Tort law. Other variables of modern Australian law in tort area of law will also be discussed.

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Principles of trot law in Australian legal system

A tort is a legal concept in which there is a civil wrong other than a breach of contract. Tort law law is considered as the source in which the lawful acts or law can intervene between the individuals in the respect of relationships and deciding a correct form of conduct or wrong. There are several number of torts which are in existence in nature. The legal nature has been derived from the common law. It is the power of court to to define and explain any sort of existing tort and also to realise or recognise the new tort with the medium of common law. In the culture of Australia tort cannot be defined as the specific legislature or statute , which requires its legal interpretation. Although each states , it can be evaluated that each state in Australia has crated its own statutes so that it can be able to over ride the common law in Australia, which can be particularly in the field of negligence , personal and other injuries and defamation ad other like issues. It can be evaluated that there are many other forms of Tort law in the aspect of Australian legal system. Also, it can also be evaluated that the law in Australia is highly influenced or affected by the law prevailing in common nature in other countries. It is the notable fact that the law of Australia is highly in struck-en by the law prevailing in United Kingdom. Also, it can be analysed that in accordance with the opinion of courts , it can be concluded that the history of Australia and the common law underpinning there in has made it unavoidable and necessary that the respective courts of the said country will continue to take help and assistance from the guidance and learning of other law which exist in other courts. It can also been identified the plaintiff can claim damages from the defendant. It can be concluded that the plaintiff must prove regarding the damages that it is the duty of the defendant and it has breacged the duty of care.

There are different principles of Tort law in the context of Australian legal system. These can be characterised as follows:

A tort is the civil wrong and incorrect deed of action. In this concept, the plaintiff claim damages from the defendant for any erroneous act committed. It is noticeable fact that law of Australia is being derived and germinated from the law in UK.

A concept of tort can be further understood as that it is different from the term crime. A tort is a civil wrong in which the court can order the defendant to pay for the injuries and damages in respect of any accident and damages caused. Tort law has been treated as private law.

There are many examples of Tort law which can be featured as defamation, negligence etc.

Defamation

It is the concept in which it has been concerned with the reputation of an individual. It can include harming some one by the means of oral medium and written defamatory system. Slander is the concept in which one person harm the reputation of another person in the form of oral form. Libel is a form of written defamatory format. Also, it can also be included that the claimant is liable to claim the damages from the litigant. In accordance with the case law of Pullman v Hill 1982, it has been evaluated that the plaintiff has a duty to prove that the statement regarding the defamatory was entitled to some person or an individual. If the plaintiff is the only one to read the statement that is not publication and the tort of defamation has not been made.

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Negligence

It is the concept in which the defendant owed a duty to care and breached that duty by negligence on the part of him. In order to claim the damages and compensation from defendant, the plaintiff has to prove that defendant was entitled to take care of the duty, along with this he breached the duty and it causes loss to plaintiff. Also, there should be some relation between the damages caused and breach of duty of care. In accordance with the famous case law of Donoghue v Stevenson, it was been held that the manufacturer of ginger beer was entitled or owed a duty of care. He breached the duty by negligence on his part. So the claim of Mrs Donoghue was successful. Also, since the evolution of cited law, it has been evaluated that there are various changes that are evolute d in the context of the legal system.

Tort law is one of the significant law which has been considered as the legal system which is established to protect the varied range of interests. Also, it allows the plaintiff to sue the damages in respect of the injuries caused to him. In accordance with the case law of Phillips v Eyre, it has been evaluated that the plaintiff was arrested in Jamaica during a civil rebellion. After his return to England he filed a case against the governor of Jamaica in UK for false and untrue imprisonment and assault. In addition to this,after this approval the legal system in Jamaica has introduced a concept and statute in their legal system which relates to the grant of immunity from acts and actions committed in stamp down the uprising. In this case, it was been held that two conditions must be fulfilled in respect of finding a suit in UK for any incorrect and wrong allegations that has been committed in other country. These two conditions can be in the name of that the wrong act must be of such nature and character which would make it liable for action if it has been committed in England. On the other hand, the second condition is that the act was not able to justifiable by the law prevailing in that place for the time being in force. So, from this, as Jamaican court has evolved the concept of immunity in their legal system, English court has also denied and rejected the recovery of plaintiff.

Also, it can be evaluated that there are some other concepts that are related to the cited case. The judgement that has been given in this case has been evolved the concept of two principles that are required to be fulfilled while proceeding in any judgement. It can also be held that these conditions are required to be satisfied, so these lead to problems for the plaintiff , as sometimes, they are not able to accomplish those specified two rules originated from the cited case law. It is considered as one of the issue that the plaintiff was required to satisfy the conditions. From this, the plaintiff was not able to gain any advantage or benefits in pleading in foreign law. Moreover, only defendant was entitled to gain from such rules. However it was also compounded that an interlocutory application has been filed in respect of the case law of Machado v Fontes. In this case, it was been held that if an individual is criminally punishable but not civilly actionable then it can be understood and taken as non justifiable. After some time the court of Appeal has rejected or disposed off the case of Machado v Fontes and included the statement of civil action ability necessitate.

From the aspect of Australia, the changes and reforms brought in the legal system are the result of increased premium for liability policies. The committee formed in respect of reviewing the law of negligence. It has been suggested by the committee that there should be introduction of a national conceptualization which ensure the legislative changes in the existing Tort law in Australia.

Further more, there is a distinction between the English legal system and Australian legal system. It can also be said that the laws that has been framed in different situations.

  • In Australia, encroachment to the someone is dependent on the directness of particular act that involves the interference of the autonomy of plaintiff. In the law of Australia, it is not required a legal intention to trespass a person. On the other hand, in the law of United Kingdom. It has been required that there should be a vital element as laid down in relevant case laws.
  • Also, in the Australian legal system , if an act or deed of tort is unintentional but direct , a plaintiff may prosecute on the basis of an action that is based on the negligence or trespass. While as it has been evaluated that in UK, there is a need of a legal intention so trespass on the basis of negligence is not available in UK legal system.
  • In accordance to the case law of Venning V Chin, The burden of proof for trespass is laid on plaintiff in respect of “highway”. On the contrary t this, in the UK legal system inn accordance with the concept of tort, in a social place the complainant needs to prove the way in which there is a straightforward and considerable intervention with their personal autonomy.
  • In addition to this, it can be evaluated that rupture of non delegable obligation is not autoloading in the case if there is any finding of reason of action against the primary person who has performed tort. Further more, the party who has done the fault should be disclosed.
  • Australian common law has been using the criteria which comprises of salient features which ascertain whether or not a particular duty must be applied or not on the part of defendant. On the other hand, it can be held that in UK three stage test is used in the context of Tort.

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In addition to this, It can be noted that The European union is considered as the largest partner of Australia. But in reality it can be founded that there are many complexities. Also it can be said that there are some limitations in respect of actions. Another example of alteration of statutory torts is one of the major limitation and drawback of the Action act. It dictate the time limits and time frame in which the litigation must be started. It can also be stated that there are various basis on which the extinguishment can be done. In this case there are limitation period has been specified.

There are some common laws in the respect of Australia legal system:

  • trespasses.
  • Social control or possession of land or property.
  • Negligence.
  • Breach and rupture of statutory and public duties.
  • Having an intention to damage the economic interests.
  • Misrepresentation.

Conclusion

From the above report it can be conclude that there are various parts of law. Each and every country in the law is determined in the respect of framing and establishing the laws and other aspects. It can be evaluated that there are various parts of law. In the context of Australian law, it has been concluded that tort law is one of the significant law among all other laws in this aspect. It can also be said that the Donoghue v Stevenson can be considered as the most important and landmark case in regard of tort law. The modification in the law has been defined and it is necessary as it changes with the society. It can be evaluated further that law always represent the society and its people. It can also be noted that there are various aspects which are required to be considered as the changes inn the law. The expansion of the tort law is occurred by its nature.

References

  • Knightley, P and Crawford, R.M., 2013. Australia. Random House.
  • Maddison, S., 2012. Postcolonial guilt and national identity: Historical injustice and the Australian settler state. Social Identities.
  • Colic-Peisker, V and Farquharson, K., 2011. Introduction: A new era in Australian multiculturalism? The need for critical interrogation. Journal of intercultural studies.
  • Coates, H and Goedegebuure, L., 2012. Recasting the academic workforce: Why the attractiveness of the academic profession needs to be increased and eight possible strategies for how to go about this from an Australian perspective. Higher Education
  • Kleinman, D. L., Delborne, J. A and Anderson, A. A., 2011. Engaging citizens: The high cost of citizen participation in high technology. Public understanding of science.
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