Lacunae and litigants: A study of negligence cases in the high court of Australia in the first decade of the 21<sup>st</sup>century and beyond

Publication Type:
Journal Article
Melbourne University Law Review, 2014, 38 (1), pp. 151 - 197
Issue Date:
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© 2014, Melbourne University Law Review. All rights reserved. This article examines a snapshot in time of appeals in negligence cases to the High Court during the first 11 years of the 21stcentury. In total, 78 negligence cases decided by the High Court during this period are analysed. Cases granted leave to appeal to the High Court are exceptional, raising novel or difficult issues of law and depend upon an injured plaintiff 's practical and financial ability to access legal services. This article analyses the gender and age of litigants, and the accident type in these appeals in order to determine what, if anything, can be learnt about tort litigation patterns. This study found that more men litigated in High Court appeals in the period under study than any other group. When analysed against the background of existing evidence as to: the nature and type of injuries suffered in Australia which require hospitalisation; who is injured; who litigates at first instance; who appeals; and the nature of negligence cases, it becomes clear that adult male plaintiffs appear more often in tort law than women and children due to more men being injured as a group and female and child injuries happening more often in no-fault contexts. The data also indicate that plaintiffs are far less likely to succeed in negligence appeals to the High Court than defendants. It is argued that this emphasis upon personal responsibility in the tort of negligence seems set to continue in light of the statutory tort law reforms which took place across Australia in 2002.
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