Tort Law's place in Australian history: different views, different stories

Abstract

There has been very little attempt to historicise Australian private law in as part of wider Australian history. Apart from the important efforts of scholars to consider the impact of the imported common law on Australia’s indigenous populations, the substantive content of that private law has, with some important exceptions, been largely neglected by both legal historians and historians more generally. To the extent that it has been considered the view has been taken that Australian courts and legislatures simply followed the English common law. It was only when Australia broke free from its imperial shackles could genuine contributions to common law development be made. In this seminar, I argue that this is a simplistic view that fails to recognise the intellectual and cultural milieu in which Australian legal practitioners operated. By reading back into legal history a bifurcated view of Australian nationalism we risk missing the genuine innovation made to the common law of tort by generations of Australian lawyers.