Federation and Beyond: What the History of Australian Tort Law Can Tell Us

Abstract

It is a very great pleasure, and an even greater privilege, to be asked to deliver the 2009 Forbes Lecture. It is also a testament to the enduring intellectual attraction that legal history holds for its devotees. My own conversion came not through any undergraduate studies in law – my law degree, completed in 1986, was not tarnished by any references to legal history – but through postgraduate study in England. Even then, it took the works of AWB Simpson to open up the possibility that my interest in both history and the history of law could be connected. It lighted something long-dormant in my academic past, and tonight I want to acknowledge the person who planted that first seed. Some may know him as much for his political activity – he was State President of the Queensland branch of the Australian Labor Party – but he was also an outstanding historian. In 1983, the year before he died, I took Dr Denis Murphy's 'Problems with Australian History' course and it was through that course that I first saw the interconnections between law and history, albeit the focus there was more on statutory developments in the period between federation and the First World War than on case law. It is only in hindsight that I have recognised that my current research projects owe a lot to the intellectual curiosity he created. My lecture tonight is, broadly, on the history of the law of tort in Australia. It is remarkable just how little has been written on the history of the law of tort, and private law more generally, in this country. It is surprising not only because Australia's relatively long legal history would seem to make such a study ideal but also because the rare forays into the area have provided important insights.