McHugh J generated comparable statements within the Acquire v The fresh Southern Wales (2002) 211 CLR 317, 352 fn 95
Presumably, not, aggravated damage are available where a state functions within the negligence hence has been framed from inside the trespass: Michael Tilbury, Municipal Remedies (1990) vol step one, 161
(134) Discover, including, Ian Fagelson, ‘The History Bastion off Blame? Contributory Negligence into the Actions to own Employers’ Liability’ (1979) 42 Modern Legislation Remark 646, 646, 663; Adrian Brooks, Guide so you’re able to Australian Occupational Safety and health Laws (3rd ed, 1988) 94-6; J A beneficial Griffin, ‘Accident Legal actions–Recent Developments’ (1984) 14(2) Queensland Legislation Neighborhood Diary 67, 68; Neil Cunningham, Defending the newest Staff member (1984) 6, 240, 360.
(135) Look for, such as, Schellenberg v Tunnel Holdings Pty Ltd (2000) two hundred CLR 121, 161 (Kirby J); Australian Traineeship Program v Wafta NSWCA 230 (Unreported, Handley, Giles and McColl JJA, ) (Handley JA); Boyded Industries Pty Ltd v Canuto NSWCA 256 (Unreported, Beazley and you can Santow JJA and you may Stein AJA, ) – (Beazley JA).
(136) Select John Gardner, ‘Crime: Equal in porportion and you may Perspective’ during the Andrew Ashworth and you can entals away from Sentencing Theory: Essays during the Honour out of Andrew von Hirsch (1998) 31, 38-41; Abel, more than letter 49, 791.
(137) Seemingly injunctive recovery are unavailable inside neglect strategies during the common law: look for Cane, ‘Retribution, Proportionality, and you will Moral Fortune during the Tort Law’, a lot more than n 8, 161. However, rules empowers courts in a number of jurisdictions to supply an enthusiastic injunction during the so it context: Judiciary Operate 1903 (Cth) s 37; Federal Legal of Australian continent Operate 1976 (Cth) s twenty-two; Best Judge Operate 1986 (Vic) s 37; Supreme Legal Work 1970 (NSW) s 66; Finest Judge Act 1933 (ACT) s 34; Finest Court Act (NT) s 19; Ultimate Judge Operate 1935 (SA) s 31; Ultimate Courtroom Statutes 2002 (Tas) r 443(1)(a).
(138) Given that issue is not free from doubt, seemingly exemplary damages come in esteem regarding negligence. There can be safeguarded dicta help the availableness for the Gray v Engine Crash Fee (1998) 196 CLR 1, 9-ten (Gleeson CJ, McHugh, Gummow and you will Hayne JJ), 28-9 (Kirby J) (to possess a critique, select Rachael Mulheron, ‘The Way to obtain Excellent Damages for the Negligence’ (2000) 4 Macarthur Laws Comment 61), which have a look at try recommended by several commentators: select, such, Fleming, What the law states out of Torts, above n 84, 273-cuatro. This new Privy Council has just confirmed one excellent injuries can be given to possess neglect when you look at the The Zealand: A-v Bottrill 3 WLR 1406 (to have a criticism, look for Roseages in The Zealand: The end of the storyline?’ (2003) 11 Torts Rules Diary 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.
Find as well as Inverell Civil Council v Pennington Aust Torts Accounts [paragraph]81-234, 62 406 (Clarke JA)
(140) Exemplary and you may furious damage was hardly approved and also been abolished in some contexts in several jurisdictions: Civil-law (Wrongs) Work 2002 (ACT) s sixteen(2); Municipal Responsibility Work 2002 (NSW) s 21; System Injuries Work 1988 (NSW) s 81 An effective; System Crashes Payment Operate 1999 (NSW) s 144; Experts Payment Operate 1987 (NSW) s 151 Roentgen; Private 1n juries (Debts and you may Problems) Operate 2003 (NT) s 19; Municipal Liability Work 2003 (Qld) s 52; Cars Operate 1959 (SA) s 113A; Collision Settlement Act 1985 (Vic) ss 134AB(22)(c), 135A(7)(c). Exemplary problems were abolished by the implication by s 93 from the brand new Transportation Collision Work 1986 (Vic): discover Luntz, Investigations of Damage private Burns off and you may Demise, a lot more than n 139, 76 fn 477. The writer isn’t alert to people instances in which an injunction has been granted about neglect context. The fresh obvious lack of circumstances on this point are not surprising, considering the fact that it is sometimes complicated so you can envisage a situation where negligent carry out would be envisioned with plenty of accuracy to guarantee an injunction.