Federation and beyond: What the history of Australian tort law can tell us

Abstract

While some work has been done on the development of private law in the colonial period, little study has been undertaken of the post-Federation period. As Bruce Kercher has noted, it has traditionally been assumed that Australian law simply followed English law. This paper will evaluate the traditional view by considering three leading cases in Australian tort law from three different periods -- 'Balmain New Ferry Co Ltd v Robertson' (1906), 'Australian Knitting Mills Ltd v Grant' (1933) and 'Hargrave v Goldman' (1963). It reveals that Australian courts were confronted with novel legal issues that could not be resolved by mere reference to English authority. Moreover, an analysis of the historical context of the cases reveals peculiarly Australian contexts to two of these decisions and demonstrates the contribution that studies of the history of tort law can make to wider Australian history.