Innovation in the Shadows of Deference: Urban Environment and the Law of Tort in Australia, 1901-1945

Abstract

Australian private law in the first half of the twentieth century has generally been portrayed as lacking innovation, its main characteristic being fidelity to rules of English law. Although this view is largely accurate, detailed granular studies of Australian case law and legislative developments of the period reveal a more complex picture than the traditional categorisation. Drawing on a conception of Australian nationalism from Hancock's 'independent Australian Britons, this article evaluates afresh the contribution of Australian judges to innovation and creativity through an analysis of tort cases involving urban environments from this period. Application of the relatively abstract legal rules to concrete situations, as well as the need to answer questions not previously considered in England, allowed Australian judges considerable latitude to contribute to both the shape of the communities they inhabited and the common law they viewed as their own.