Tue, 6 Dec 2005 11:58:3
VL and punitive damages
Foster wrote (in part):
some extent his Honour's judgement (see -) depended on distinguishing
the terms of the 1983 Act from the judgement of Kitto J in Darling
Island Stevedoring and Lighterage Co Ltd v Long (1956-57) 97
CLR 36. That is, because the 1983 Act was clear that the State was
liable for the "torts" of the officer rather than the
"actions" of the officers, it was not possible to argue
that it implemented the so-called "master's tort" theory
represented by the judgement of Kitto J in that case. It seems fairly
clear however that in a very polite and restrained way Basten JA
was tip-toing around the clash of views represented by the judgements
of Fullagar J and Kitto J in the Darling Island case. It
would be nice if the High Court would revisit the area and make
it clear once and for all that the "servant's tort" theory
is the one that courts apply these days.
the difficulty with adopting Fullagar J's view as to the nature
of vicarious liability is that, if correct, Darling is wrongly decided?
At least Kitto J explains the result.
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