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This article considers when a claimant is entitled to recover (on a quantum meruit) for services rendered to the recipient of the services, where such recipient (or the claimant) has a contractual relatinship with a third party governing the performance of the services. Such three-party scenarios pose challenges for unjust enrichment theory. An alternative analysis, adopted in a recent decision of the High Court of Australia, uses what is essentially contractual reasoning to establish a quantum meruit. This article considers the competing approaches and concludes that the contractual approach is simpler, and more accurately reflects the reality of the parties' relationships and the legal concerns that need to be addressed.
The Trade Practices Act 1974 (Cth) imposes civil accessorial liability on parties "involved in the contravention" of parts of the Act, defined in s 75B . Litigation and commentary on this section shows that it is difficult to prove accessorial liability and many claims have failed. This is because, problematically, the scheme of accessorial liability adopted means that an accessory must be shown to have actual knowledge of the misleading or deceptive nature of the principal's conduct. Yet, in most circumstances in which, historically, the accessory provisions have been relied upon, it is not necessary to establish accessorial liability at all. Instead, it is easier to pursue claims against natural persons for direct contravention of State Fair Trading Act provisions. This conclusion is supported by the recent High Court decision in Hou...
A number of legal issues have remained open since the High Court last considered the question of liability in negligence for nervous shock in 1984. In Tame and Annetts, two recent decisions of the court, a number of the outstanding questions were addressed. Specifically, the court considered the issues of whether the 'reasonable foresight' test included a requirement of 'normal fortitude', and whether a claimant needs to establish a 'sudden shock' and a 'direct perception' of the accident or its aftermath.
Extract: There has been a significant sea-change in Australian Torts law over the last three years or so and even more changes are foreseeable in the future as a raft of proposed reforms go before Federal and State parliaments. There are two driving forces behind these developments. First, changes in the make-up of the High Court of Australia have seen a "remarkable turnaround" in the outcome of torts appeals to that Court, from a high proportion of appeals being decided pro-plaintiff in the decade or so prior to 2000 to a high proportion of decisions favouring defendants since then. © Copyright Springer, 2003
General concepts, such as ‘reasonableness’, ‘unconscionable conduct’ and ‘unfairness’, are used in a variety of ways by judges, commentators and in statute. Sometimes, general concepts are merely statements in the nature of a conclusion reached after a process of detailed legal reasoning has taken place. In many cases, however, general concepts themselves play a determinative role in legal analysis, either as an important step in a process of analysis, or else as the sole or central concept determining liability. In such cases, it is of critical importance for the pursuit of open and rational legal reasoning that meaning is given to such concepts. This article explores some of the ways in which general concepts are utilised in legal reasoning and the various ways in which meaning and content can be given to such concepts.
Recent changes to the Trade Practices Act and to State tort law regimes have significantly altered the law on liability arising from personal injury incurred in the course of participation in recreational services. In particular, where a service provider seeks to waive liability for negligence and breach of contract, the interaction between the TPA, the common law of contract and torts, and State legislation, has led to excessive complexity. In the context of recreational services, the article suggests that recent 'tort reforms' are a failure according to the criteria of consistency and simplicity. © Copyright Reed International Books Australia Pty Limited trading as LexisNexis, 2003
In a range of decisions in contract, equity and under the Trade Practices Act, the High Court has rejected the possibility of the apportionment of damages as a result of a plaintiff’s contributory fault. Instead, the trend of decisions is toward an all-or-nothing approach to the award of damages: either a plaintiff successfully establishes that the defendant’s conduct caused the loss and recovers fully or else a defendant establishes that some intervening event (including perhaps the plaintiff’s conduct) breaks the chain of causation and there is no recovery. Such a trend is to be regretted. However, its resonances may even be beginning to be felt in torts law, where some cases have denied that a defendant owes a duty of care, or has breached such duty if owed, in part because of some failure by the plaintiff to have regard for his or ...
Extract: Much has been written recently about "taxonomy" or, more specifically, about the classification of our law of obligations, particularly by Professor Birks.1 Drawing comparisons with the science of Charles Darwin, Birks argues for greater awareness by lawyers of the importance of classification and for better taxonomy in our law. Leaving aside for now the doubts one may entertain about the merits of Birks’ quasi-zoological approach to classification,2 or about whether such attention to taxonomy will ultimately result in improvement in our law,3 the burden of his writing is in favour of a four-fold categorisation of the law of obligations. Starting with a classification of common law obligations into contract, tort, unjust enrichment/restitution, and other causative events, Birks incorporates equitable obligations, so that all...
Extract: I now return to the dual focus of this paper on liability and remedy. In the context of liability, I shall consider the increasing use by the courts of general standards, encompassed within broad ’equitable’ concepts, as determinants of liability. Such concepts are, very loosely speaking, ’equitable’, not in the sense of necessarily having their origins in the Courts of Chancery, but in the sense of being concerned with providing flexible legal tools capable of giving effect to principles of justice and fairness in a wide variety of contexts (albeit by resort to familiar legal techniques and by analogy with established categories of case). In particular, I propose to consider two concepts gaining increasing currency in our law, namely ’unconscionable conduct’ and an implied duty of ’good faith and fair dealing’ in (the perfo...
The legislative changes to the law of torts effected by the ’Civil Liability Acts’ in all jurisdictions are wide-ranging. One aspect of these changes is the creation of new 'no-duty' situations: particular classes of defendants have been exempted from liability and particular classes of plaintiffs have been disentitled from bringing claims for some or aft of the damage incurred by them as a result of defendants’ negligent conduct. This article considers the general effect of the relevant provisions in each jurisdiction and highlights the considerable and often legally significant differences that exist between the various jurisdictions in relation to these ’no-duty’ categories. Some of these differences are as a result of deliberate policy decisions; others, it appears, are the result of poor legal drafting. The article concludes that ...
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