Australian tort law reform: statutory principles of causation and the common law

By mid-2004, Parliaments in each Australian jurisdiction will either complete or will be in the process of partial codification of the law of torts. The reforms, including those to the law of negligence, are extensive. This article focuses on codification of the law of causation as an element of the cause of action in negligence. It examines the background to "tort reform", as the process has been labelled, and discusses the common law paradigm of negligence and various approaches to causation. It then analyses and compares the causation provisions in each jurisdiction.     

Causality and causation in tort law

This paper considers alternative approaches to dealing with causal uncertainty in strict liability tort regimes. Beginning from the philosophical literature on causing, a distinction is made between the scientific idea of causality and the legal idea of causation. This distinction is generalized to a context of causal uncertainty and associated probabilities are constructed. It is shown that a rule of proportional liability whereby the tortfeasor pays damages in proportion to the probability in causation of them having caused the damage would be socially efficient. This contrasts with the implied use of the probability in causality by the courts and in the law and economics literature on causal uncertainty.     

Statutory interpretation and the counterfactual test for legislative intention

In this paper I examine the counterfactual test for legislative intention as used in Riggs v. Palmer. The distinction between the speaker's meaning approach and the constructive interpretation approach to statutory interpretation, as made by Dworkin in Law's Empire, is explained. I argue that Dworkin underestimates the potential of the counterfactual test in making the speaker's meaning approach more plausible. I also argue that Dworkin's reasons for rejecting the counterfactual test, as proposed in Law's Empire, are either too weak or unsound. A deeper reason for rejecting the counterfactual test as a method for the speaker's meaning approach is proposed in this paper. The difference between the counterfactual test and other tests for legislative intention which seem also to make use of counterfactual conditions in explained.     

Reforming the relationship between medicine and the law of tort

The Australian Government's medical indemnity package is predicated on the belief that the current crisis is primarily one of insurance. However, an examination of the fault-based tort system illustrates that, irrespective of their insurance status, doctors are profoundly affected by the adversarial process and their response to it is leading to sub-optimal patient care. This article argues that the adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead, doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury. This is unacceptable and suggests that the package has missed the point. This article proposes an alternative medico-legal tort scheme which attempts to overcome some of these problems.     

Damages for pain and suffering in tort law

Legislation enacted between 2002 and 2005 by each Australian State and Territory reformed and partially codified the common law of personal injuries. This column examines the nature and history of damages for pain and suffering and analyses the approach taken by different Australian jurisdictions to compensation for non-economic loss. Non-economic loss is generally composed of pain and suffering, loss of amenities of life, and loss of enjoyment of life (some jurisdictions, eg New South Wales, also include disfigurement, and loss of expectation of life). Several jurisdictions have imposed thresholds that a claimant must meet as a prerequisite to suing for damages at common law.     

台湾侵权行为法修正之分析

一、前言 在经历了长时间的酝酿之后,台湾民法债篇终于在1999年4月21日对于沿用长达70年的规定作了全盘的修正并公布.乍见如此庞大的修改量,不免让人无所适从,但其实就修正内容的大部分而言,均是学术界研究多年的心得,实务界也早已行之有效.但这并不意味着此次之修正毫无争议,而且,新法增加了许多较少被讨论的规定,例如许多有名契约的增订,例如旅游、合会、人事保证契约等等,也引发了许多学者对此进行更深入的研究.     

制定侵权责任法的方法论思考

制定侵权责任法,是将社会生活中存在的法予以法典化的工作,包括继受以往立法及司法解释经实践检验的正确规则、借鉴国外的成功经验以及对社会出现的新类型直接从社会生活中找法。既要保护受害人,也要兼顾社会生产和社会公益事业发展,遵循公平原则并与保险、社会救济相互协调。必须依类型化原理把握事物的质的方面,避免立法过细或者过简,创制科学的侵权责任体系。     

论中国海事侵权的法律适用

传统上,中国海事侵权案件的法律选择依照《中华人民共和国民法通则》第146条和《中华人民共和国海商法》第273条及第275条的规定。在《中华人民共和国涉外民事关系法律适用法》颁布后,海事侵权案件（包括船舶碰撞）的法律选择完全可以依照该法第44条的规定,但在适用侵权行为地法规则时须做些调整,对于发生于船舶内部的侵权行为和仅涉及两艘同国籍船舶的海事侵权案件须视船舶为侵权行为地而适用船旗国法律,对于发生于公海的无船旗国法律可适用的海事侵权案件则适用法院地法律。《中华人民共和国海商法》关于海事赔偿责任限制法律适用的规定也可并入《中华人民共和国涉外民事关系法律适用法》。