McHugh J made comparable statements when you look at the Tame v The newest Southern area Wales (2002) 211 CLR 317, 352 fn 95

McHugh J made comparable statements when you look at the Tame v The newest Southern area Wales (2002) 211 CLR 317, 352 fn 95

Presumably, however, resentful problems appear where a declare work inside negligence hence might have been presented when you look at the trespass: Michael Tilbury, Municipal Remedies (1990) vol 1, 161

(134) Come across, including, Ian Fagelson, ‘The History Bastion regarding Blame? Contributory Carelessness inside Procedures getting Employers’ Liability’ (1979) 42 Modern Laws Remark 646, 646, 663; Adrian Brooks, Guidebook to Australian Work-related Safety and health Laws and regulations (3rd ed, 1988) 94-6; J Good Griffin, ‘Accident Lawsuits–Latest Developments’ (1984) 14(2) Queensland Laws Society Journal 67, 68; Neil Cunningham, Safeguarding the fresh Employee (1984) six, 240, 360.

(135) See, like, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, 161 (Kirby J); Australian Traineeship Program v Wafta NSWCA 230 (Unreported, Handley, Giles and you will McColl JJA, ) (Handley JA); Boyded Marketplaces Pty Ltd v Canuto NSWCA 256 (Unreported, Beazley and you can Santow JJA and you will Stein AJA, ) – (Beazley JA).

(136) Look for John Gardner, ‘Crime: In proportion and you will Perspective’ inside the Andrew Ashworth and you will entals regarding Sentencing Theory: Essays inside Honor out-of Andrew von Hirsch (1998) 30, 38-41; Abel, above letter forty two, 791.

(137) Evidently injunctive relief is not available when you look at the carelessness procedures within common law: find Cane, ‘Retribution, Proportionality, and you can Ethical Chance during the Tort Law’, a lot more than n 8, 161. However, rules allows process of law in some jurisdictions to give an injunction inside the this framework: Judiciary Act 1903 (Cth) s 37; Government Courtroom of Australia Work 1976 (Cth) s 22; Best Legal Operate 1986 (Vic) s 37; Supreme Court Work 1970 (NSW) s 66; Ultimate Judge Work 1933 (ACT) s 34; Best Court Act (NT) s 19; Supreme Courtroom Act 1935 (SA) s 31; Ultimate Court Rules 2002 (Tas) r 443(1)(a).

(138) Because the issue is perhaps not without question, obviously excellent damage are available in regard out-of negligence. There was guarded dicta help the availableness from inside the Gray v Engine Accident Commission (1998) 196 CLR step one, 9-10 (Gleeson CJ, McHugh, Gummow and you may Hayne JJ), 28-9 (Kirby J) (to possess a criticism, get a hold of Rachael Mulheron, ‘The Method of getting Exemplary Damage inside Negligence’ (2000) cuatro Macarthur Rules Comment 61), which evaluate are supported by a number of commentators: get a hold of, such as for example, Fleming, The law away from Torts, more than n 84, 273-cuatro. This new Privy Council recently confirmed you to definitely excellent problems is generally issued to own carelessness within the This new Zealand: A v Bottrill step three WLR 1406 (having a criticism, find Roseages in This new Zealand: The termination of the story?’ (2003) 11 Torts Legislation Record 20).

(139) There is a paucity of authority as to whether aggravated damages are available for negligence. In Hunter Area Health Service v ) 57 NSWLR 268, 288, Mason P expressed ‘serious doubt’ as to whether such damages are available. The Law Commission for England and Wales expressed similar doubts in its report: Law Commission for England and Wales, Aggravated, Restitutionary and Exemplary Damages, Report No 247 (1997) [2], [2.26]-[2.36] < Contra Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) 82-3.

Discover as well as Inverell Civil Council v Pennington Aust Torts Profile [paragraph]81-234, 62 406 (Clarke JA)

(140) Exemplary and you will mad problems was rarely awarded and also have started abolished in some contexts in a lot of jurisdictions: Civil-law (Wrongs) Operate 2002 (ACT) s sixteen(2); Civil Liability Operate 2002 (NSW) s 21; Engine Crashes Work 1988 (NSW) s 81 A beneficial; System Accidents Settlement Work 1999 (NSW) s 144; Gurus Compensation Act 1987 (NSW) s 151 R; Personal 1n juries (Liabilities and you will Damage) Operate 2003 (NT) s 19; Municipal Accountability Operate 2003 (Qld) s 52; Cars Operate 1959 (SA) s 113A; Crash Compensation Work 1985 (Vic) ss 134AB(22)(c), 135A(7)(c). Exemplary damages was indeed abolished of the implication of the s 93 regarding the new Transportation Crash Act 1986 (Vic): pick Luntz, Comparison out-of Problems for personal Burns off and you can Death, significantly more than n 139, 76 fn 477. Mcdougal isn’t familiar with any cases where a keen injunction could have been granted on the negligence framework. The fresh obvious absence of instances on this subject part was not surprising, given that it is hard so you’re able to envisage the right position where irresponsible conduct will be expected with sufficient precision so you can guarantee an injunction.

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