(134) Get a hold of, including, Ian Fagelson, ‘The Past Bastion of Blame? Contributory Carelessness when you look at the Steps to possess Employers’ Liability’ (1979) 42 Modern Rules Comment 646, 646, 663; Adrian Brooks, Manual in order to Australian Occupational Safety and health Rules (third ed, 1988) 94-6; J A good Griffin, ‘Accident Litigation–Previous Developments’ (1984) 14(2) Queensland Law Society Record 67, 68; Neil Cunningham, Shielding the newest Employee (1984) six, 240, 360.
(135) Come across, such, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, 161 (Kirby J); Australian Traineeship System v Wafta NSWCA 230 (Unreported, Handley, Giles and you can McColl JJA, ) (Handley JA); Boyded Areas Pty Ltd v Canuto NSWCA 256 (Unreported, Beazley and you may Santow JJA and you may Stein AJA, ) – (Beazley JA).
(136) Look for John Gardner, ‘Crime: Compared and you may Perspective’ when you look at the Andrew Ashworth and you can entals off Sentencing Theory: Essays during the Honor out of Andrew von Hirsch (1998) 29, 38-41; Abel, more than letter forty two, 791.
(137) Obviously injunctive rescue are not available into the carelessness procedures from the common-law: look for Cane, ‘Retribution, Proportionality, and you may Moral Chance inside Tort Law’, a lot more than n 8, 161. not, rules allows process of law in a number of jurisdictions to convey a keen injunction during the so it context: Judiciary Work 1903 (Cth) s 37; Government Court off Australian continent Act 1976 (Cth) s twenty two; Ultimate Judge Act 1986 (Vic) s 37; Finest Court Work 1970 (NSW) s 66; Ultimate Court Act 1933 (ACT) s 34; Ultimate Judge Act (NT) s 19; Finest Courtroom Act 1935 (SA) s 31; Supreme Court Guidelines 2002 (Tas) r 443(1)(a).
(138) Because the issue is perhaps not free from doubt, evidently excellent damages are available in regard out of negligence. You will find safeguarded dicta supporting the access inside the Gray v Motor Accident Fee (1998) escort reviews Orange CA 196 CLR step one, 9-10 (Gleeson CJ, McHugh, Gummow and you may Hayne JJ), 28-9 (Kirby J) (to own a feedback, discover Rachael Mulheron, ‘The Availability of Exemplary Damage from inside the Negligence’ (2000) 4 Macarthur Law Review 61), hence look at are supported by a number of commentators: discover, for example, Fleming, The law out of Torts, a lot more than letter 84, 273-4. The Privy Council recently affirmed one to exemplary problems is approved getting neglect for the This new Zealand: A v Bottrill step three WLR 1406 (getting a critique, select Roseages in The newest Zealand: The conclusion the storyline?’ (2003) 11 Torts Rules 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.
(140) Exemplary and you may annoyed damages was scarcely granted as well as have started abolished in a number of contexts a number of jurisdictions: Civil law (Wrongs) Act 2002 (ACT) s 16(2); Municipal Accountability Work 2002 (NSW) s 21; Engine Accidents Act 1988 (NSW) s 81 A great; System Accidents Payment Act 1999 (NSW) s 144; Gurus Compensation Act 1987 (NSW) s 151 Roentgen; Individual 1n juries (Obligations and Damages) Act 2003 (NT) s 19; Municipal Responsibility Act 2003 (Qld) s 52; Cars Operate 1959 (SA) s 113A; Accident Payment Work 1985 (Vic) ss 134AB(22)(c), 135A(7)(c). Excellent injuries was basically abolished of the implication from the s 93 away from the Transport Accident Work 1986 (Vic): come across Luntz, Evaluation from Damage for personal Burns and Death, over letter 139, 76 fn 477. The writer isn’t aware of one times where an injunction might have been granted on the carelessness perspective. The latest apparent absence of instances about area is actually unsurprising, because it is difficult so you’re able to envisage a posture in which irresponsible conduct would-be expected with sufficient precision so you can guarantee an injunction.