England's Obedient Servant? The hidden dynamism in the development of Australian tort law 1901-1945

Abstract

This paper discusses the extent to which there was the development of an Australian tort law between 1901-1945. It begins by looking at reasons why asking such a question about this period is worthwhile and the reasons why taking reasoning and judgments in cases at their face value may be misleading. In light of this discussion, the paper then looks at a decision of the High Court of Australia in 1949, 'Deatons Ltd v Flew', to argue that the application of English authority still provided a number of choices for Australian courts, choices that could be informed by factors applicable to Australia and not England. In this way, the development of the law was much more dynamic than might at first glance appear.