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McHugh J produced comparable comments from inside the Acquire v The fresh Southern Wales (2002) 211 CLR 317, 352 fn 95

McHugh J produced comparable comments from inside the Acquire v The fresh Southern Wales (2002) 211 CLR 317, 352 fn 95

McHugh J produced comparable comments from inside the Acquire v The fresh Southern Wales (2002) 211 CLR 317, 352 fn 95

Allegedly, but not, furious injuries are available in which a declare work when you look at the neglect and therefore could have been presented during the trespass: Michael Tilbury, Civil Cures (1990) vol 1, 161

(134) Come across, such as, Ian Fagelson, ‘The Last Bastion of Fault? Contributory Negligence when you look at the Procedures to possess Employers’ Liability’ (1979) 42 Progressive Law Opinion 646, 646, 663; Adrian Brooks, Manual to help you Australian Work-related Safety and health Statutes (third ed, 1988) 94-6; J A beneficial Griffin, ‘Accident Lawsuits–Recent Developments’ (1984) 14(2) Queensland Laws People Diary 67, 68; Neil Cunningham, Safeguarding this new Personnel (1984) six, 240, 360.

(135) Select, such, Schellenberg v Canal Holdings Pty Ltd (2000) 200 CLR 121, 161 (Kirby J); Australian Traineeship System v Wafta NSWCA 230 (Unreported, Handley, Giles and McColl JJA, ) (Handley JA); Boyded Marketplaces Pty Ltd v Canuto NSWCA 256 (Unreported, Beazley and you may Santow JJA and you may Stein AJA, ) – (Beazley JA).

(136) Select John Gardner, ‘Crime: Compared and Perspective’ inside the Andrew Ashworth and you may entals of Sentencing Theory: Essays inside Honor regarding Andrew von Hirsch (1998) 30, 38-41; Abel, a lot more than letter 44, 791.

(137) Evidently injunctive relief is actually unavailable into the carelessness methods in the common law: find Cane, ‘Retribution, Proportionality, and you may Moral Luck inside the Tort Law’, a lot more than letter 8, 161. Although not, guidelines allows courts in a number of jurisdictions to convey a keen injunction inside the this framework: Judiciary Act 1903 (Cth) s 37; Government Legal off Australia Act 1976 (Cth) s 22; Best Courtroom Operate 1986 (Vic) s 37; Finest Courtroom Act 1970 (NSW) s 66; Ultimate Legal Work 1933 (ACT) s 34; Finest Courtroom Act (NT) s 19; Ultimate Court Act 1935 (SA) s 31; Finest Courtroom Regulations 2002 (Tas) r 443(1)(a).

(138) Given that concern is maybe not free of doubt, it seems that exemplary damages are available in regard away from neglect. There is certainly guarded dicta support the accessibility into the Grey v Motor Collision Fee (1998) 196 CLR step one, 9-10 (Gleeson CJ, McHugh, Gummow and you may Hayne JJ), 28-9 (Kirby J) (having a critique, find Rachael Mulheron, ‘The Method of getting Exemplary Damage from inside the Negligence’ (2000) 4 Macarthur Law Opinion 61), and therefore view was supported by a number of commentators: find, such as, Fleming, What the law states of Torts, above letter 84, 273-cuatro. The brand new Privy Council has just verified you to exemplary injuries are awarded to own neglect within the The new Zealand: A v Bottrill 3 WLR 1406 (to have a feedback, discover Roseages within the The Zealand: The termination of the storyline?’ (2003) 11 Torts Law Journal 20).

(139) There is a paucity of authority as to whether aggravated damages are available for negligence. In Hunter Area Health Service v ) 57 NSWLR 268, 288, Mason P expressed ‘serious doubt’ as to whether such damages are available. The Law Commission for England and Wales expressed similar doubts in its report: Law Commission for England and Wales, Aggravated, Restitutionary and Exemplary Damages, Report No 247 (1997) [2.10], [2.26]-[2.36] < Contra Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) 82-3.

Look for including Inverell Municipal Council v Pennington Aust Torts Account [paragraph]81-234, 62 406 (Clarke JA)

(140) Exemplary and you can mad injuries is scarcely granted while having become abolished in a number of contexts a number of jurisdictions: Civil law (Wrongs) Act 2002 (ACT) s sixteen(2); Municipal Liability Act 2002 (NSW) s 21; System Accidents Operate 1988 (NSW) s 81 A good; Engine Accidents Payment Operate 1999 (NSW) s 144; Specialists Compensation Work 1987 (NSW) s 151 R; Personal 1n juries (Liabilities and you may Damages) Act 2003 (NT) s 19; Civil Responsibility Work 2003 (Qld) s 52; Motor vehicles Operate 1959 (SA) s 113A; Accident Settlement Work 1985 (Vic) ss 134AB(22)(c), 135A(7)(c). Exemplary damages were abolished of the implication because of the s 93 from new Transportation Crash Act 1986 (Vic): see Luntz, Comparison off Damages private Burns and Passing, above letter 139, 76 fn 477. The author isn’t alert to one circumstances where an injunction might have been provided throughout the neglect perspective. The new noticeable lack of circumstances about this section was unsurprising, considering the fact that it is difficult so you can envisage a position where negligent make could be anticipated with sufficient accuracy in order to warrant a keen injunction.

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