Chief Justice Paul De Jersey AC (speech delivered at the Official Opening of the North Queensland Law Association Annual Conference, Southbank Convention Centre, Townsville, Friday, 4 October 2002).
2.
Tame v New South Wales and Annetts v Australian Stations Pty Ltd [2002] HCA 35, para 101 (McHugh J).
See further DaviesMartin, Torts (3rd ed, 1999) 84.
5.
In Tame's case a police officer had made a clerical error in filling out a report about a traffic accident. The error was not corrected until after it had come to the attention of the appellant who subsequently developed a psychotic depressive illness, despite the fact that the police rectified the record as soon as their attention was drawn to the error. The High Court affirmed the Court of Appeal decision that Mrs Tame's psychiatric illness was not reasonably foreseeable (see GleesonCJ, 29). Annetts case fell in a more elusive category. The Annetts' 16-year-old son had accepted work as a jackaroo on the respondent's property. After seven weeks, contrary to assurances alleged to have been given to the parents, he was sent to work alone as a caretaker on a remote property. He subsequently went missing. An extensive search was undertaken in which the appellant took part. Five months later his son's body was discovered in the desert. The son had died of dehydration, exhaustion and hypothermia. The father was informed by telephone and subsequently identified the body on viewing a photograph of his son's skeleton. The Annetts succeeded in their appeal to the High Court.
6.
Donoghue v Stevenson [1932] AC 562.
7.
Tame and Annetts [2002] HCA 35, 97 (McHugh J) quoting from Fleming'sThe Law of Torts (1957) 131–2.
8.
Tame and Annetts [2002] HCA 35, para 102 (McHughJ).
9.
Tame and Annetts [2002] HCA 35, paras 105, 108 (McHughJ).
10.
Tame and Annetts [2002] HCA 35, para 14 (GleesonCJ).
11.
Gifford v Strang Patrick Stevedoring [2003] HCA 33, para 8 (GleesonCJ), para 46 (McHughJ), para 86 (GummowKirbyJJ) and para 118, 120 (CallinanJ).
12.
See Brodie v Singleton Shire Council [2001] HCA 29, para 14 (GleesonCJ): ‘The essence of the rule is that a highway authority may owe to an individual road user a duty of care, breach of which will give rise to liability in damages, when it exercises its powers, but it cannot be made so liable in respect of a mere failure to act.’
13.
Brodie (GaudronMcHughGummowJJ), paras 50-185.
14.
Brodie, para 68.
15.
Brodie, para 97.
16.
Brodie, para 102.
17.
Brodie, para 181.
18.
Wyong Shire Council v Shirt (1980)146CLR40.
19.
Brodie, para 151.
20.
Ghantous v Hawkesbury City Council [2001] HCA29.
21.
Ghantous (KirbyJ) para 247.
22.
Ghantous (KirbyJ) para 248.
23.
Waverley Municipal Council v Swain [2003] NSWCA 61.
24.
Enright v Coolum Resort Pty Ltd and Ors [2002] QSC 394.
25.
Borland v Makauskas [2000] QCA 521.
26.
Borland v Makauskas [2000] QCA 521, para 16.
27.
Personal Injuries Proceedings Act 2002 (Qld) s 4.
28.
The Attorney-General's introduction to the second reading of the Bill clearly sets the Act out as a response to the ‘insurance crisis’. Queensland, Parliamentary Debates, 18 June 2002, 1848 (WelfordR, Attorney-General and Minister of Justice).
29.
Dept. of Justice and Attorney-General's webpage <http://www.justice.qld.gov.au/ourlaws/public.htm#civil> at 13 March 2003. Similarly, in the Attorney-Generals' introduction to the second reading of the Bill, he declared that ‘[t]his bill is a comprehensive response to the problems raised by the insurance crisis’. Queensland, Parliamentary Debates, 11 March 2003, 369 (WelfordR, Attorney-General and Minister of Justice).
30.
National Review of the Law of Negligence: Final Report (September 2002) s 9.
31.
The non-feasance rule will be reimposed by the Civil Liability Act after 31 December 2005.
32.
BakerDavidBlaySamCorbinLillianGibsonAndy, Tort Law in Principle (3rd ed2002) 22–2.
33.
Queensland, Parliamentary Debates, 18 June 2002, 1848.
34.
McLoughlin v O'Brian [1983] AC 430.
35.
KoenigThomasRustadMichael, In Defense of Tort Law (2001) 4.
