Australian Tort Law: Unity, Fragmentation and Complexity

Abstract

The Second International Forum on Civil Law is concerned, amongst other things, with the unification and internationalisation of tort law. Much work has been done in Europe on developing a common set of ideas that encapsulate the main elements of the tort system of European jurisdictions. 'The Principles of European Tort Law' ('the Principles') are the tangible result of this enquiry. They do not represent every detail of the tort law that operates within each of the jurisdictions covered by the Principles, but each jurisdiction can identify the main elements of their systems within the Principles. In our current gathering of international tort law scholars, the question arises as to whether further attempts, at either a regional or global level, to develop overarching principles of tort law can or should be attempted. In the international era in which we live there is clearly merit in attempting to devise a set of principles that can explain the common features of our legal systems. This may be possible as long as we remember that we are looking for high-level, relatively abstract legal principles. We should not expect to find more detailed aspects of the tort law of our legal system represented in these principles but they should, nonetheless, be recognisable as present in our own system. In the context of this Second International Forum on Civil Law, the prospect of identifying a set of principles for a 'common' tort law of south-east Asia, or some other regional area, is appealing. A more difficult question is whether any such common tort law should have regard to the tort law of Australia. Of course, Australian tort law can be of interest comparatively, in the same way that the tort law of Europe and North American is of interest. But, arguably, Australia is different. Geographically and economically, Australia is part of Asia; in particular, the economic relationship between Australia and China is one the most robust in the region. Given the very different historical and cultural influences on the development of tort law, we should not expect the detail of Australian tort law to be recognisable in other tort systems in Asia (apart from jurisdictions based on a common law system such as Singapore). But if we look for high level, abstract principles, along the lines of the Principles, we may, perhaps, recognise that the Australian system shares features of other tort law regimes in the region. Moreover, we may also recognise that there are key differences, and we can then explore the reasons for those differences. We should attempt to explain uniformity where it exists but not to create it where it does not. In this way, a comparative analysis of tort law challenges us to explain why our own tort system is the way it is. The task of this paper is to provide an outline of some of the features of Australian tort law. Only when we have an accurate understanding of how Australian tort law actually operates can we identify its main features and determine how it might be represented in a series of high level abstract principles.