Capacity and the law of negligence : ignorance and prejudice guiding the way

Assessment of liability in negligence cases is based on the objective standard of reasonable care. A defendant’s inability to reach this standard is therefore irrelevant to the determination of liability. This principle has not been applied consistently in Australian tort law. A defendant with reduced capacity due to mental illness is required to meet the objective standard. Yet, a defendant with reduced capacity due to immature age is required to meet a standard which has been tailored to more accurately reflect the child defendant’s age and capacity. This article examines some of the leading explanations provided for this disparity in legal treatment and argues that the most likely driving force behind the law is society’s unintentional and pervasively negative attitude towards the mentally ill – a prejudice known as ‘sanism’

Enhancing law student learning : the nurturing teacher

This article considers whether the techniques and philosophy of a 'nurturing' teacher can be justified in the law school context. In doing this, the article explores two interrelated issues. The first is the effect of students' emotions on their ability to learn effectively. The second is the role of the teacher in being aware of and harnessing these emotions in order to create the optimal classroom environment for effective learning. The article examines some ofthe techniques of the nurturing teacher, and argues that these techniques and philosophies effectively take account ofthe emotional aspect of student learning, and are therefore essential to law school teaching

Paying for risky decisions : civil liability of non-vaccinators

Since their widespread introduction in the early 20th century, vaccinations have saved millions of lives worldwide and have near to eradicated some diseases in several countries. Vaccination in Australia, although not mandatory, is strongly and actively encouraged through pervasive education campaigns, financial incentives and administrative requirements. Despite this, approximately 10% of children in Australia are not fully vaccinated against vaccine preventable diseases and every year thousands of Australians are infected with one of these diseases. This article considers the liability in negligence of parents whose unvaccinated children infect and cause harm to others. It argues that policy considerations will ultimately determine decisions about liability in a given case and, in particular, that courts should take into account the reasons for failure to vaccinate in making their determination on liability. The article further argues that if reasons for failure to vaccinate are not regarded as appropriate matters of differentiation for the purposes of tort law, all unreasonable non-vaccinators should nonetheless be liable for physical harm that their failure to vaccinate causes

Negligence and inherent unreasonableness

In Australia, the reduced mental capacity which is characteristic of children alters the standard of care required of them before their behaviour will be judged legally negligent. Seemingly inconsistently, similar incapacity experienced by adults with a mental illness, has generally been regarded as irrelevant to decisions about tortious liability. To date, this has led to few practical consequences, as only a handful of mentally ill defendants have come before the courts in negligence claims. Yet with the ageing population,1 the growing number of people with dementia,2 and the universal policy of deinstitutionalisation, which places those with a mental illness in the wider community, it is likely that areas of law, including tort law, will come to deal more often with defendants suffering from reduced mental capacity.3 This article examines the apparently inconsistent way in which the common law of negligence responds to tortfeasors with reduced mental capacity, and contends that neither courts’ reasons, nor academic analyses provide adequate explanation for this discrepancy. The article provides several proposals for resolving this dissonance

When words ain't words - contributory negligence, Civil Liability Acts and the standard of care

The relationship between a person’s capacity and the level of care expected of that person in a given situation has long been a controversial issue in the law of negligence. In the 19th century, courts applied a strictly objective standard, maintaining that a person’s actual age or ability had no bearing on the requisite level of care. During the 20th century courts had become more flexible in this regard, allowing the parameters of the standard of care to be adjusted to take into account the age of the person to whom the standard is to apply. Since the standard could now be attenuated in some circumstances, and since the relevant test in relation to age was unclear—either that expected of “a child of the same age, intelligence and experience” or that expected “of a child, meaning any ordinary child, of comparable age”— arguments arose as to whether there were other situations in which the standard should be altered to more accurately reflect the abilities of the class of person to which the particular plaintiff or defendant belonged. Specifically, what was the impact of disability — mental and physical — on the relevant standard of care to be applied, and should the principles and practices used to determine the issue in relation to contributory negligence be identical to those applicable to primary negligence

Vaccine-preventable diseases : compensating victims and deterring non-vaccinators?

Parents who do not vaccinate their children create risk of harm to those in society who are vulnerable to vaccine-preventable diseases. Current avenues of redress to those harmed, namely negligence law, present many hurdles. This article considers alternative avenues of redress such as user-pays no fault insurance or compensation schemes

Constructive guidance and feedback for learning : the usefulness of exemplars, marking sheets and different types of feedback in a first year law subject

Criteria and standards-based assessment models are increasingly being adopted by universities as effective practice. However the promise of these models of assessment may not be realised unless teachers can find ways of making criteria and standards understandable to students. Exemplars or examples of previous students' work of high and low quality can make criteria and standards concrete. Recent research has focussed on the use of exemplars to help students understand criteria and standards, and less emphasis has been given to exemplars simply as guides for students. This mixed methods study explores students' perceptions of the usefulness of exemplars and different types of feedback for guiding them in completing assessments. A combination of engaging in marking and discussing exemplars, and receiving individualised and standards-based feedback provides the most helpful guidance for students' effective learning

Defendants, mental illness and negligence law: a critique

At common law, liability in negligence is based generally on an objective standard ofreasonable care. As a consequence of this idea those who possess reduced capacities,as compared to the ordinary reasonable person, may be held to standards which theyare incapable of reaching.Yet there are exceptions to this general rule. Children are not required to behave theway reasonable adults behave. Rather, when the defendant is a child, courts take intoaccount the capabilities which are a concomitant of the defendant’s age.A defendant’s mental illness, on the other hand, is not considered by courts inAustralia (or elsewhere) to be relevant when determining liability in negligence. Ithas been argued that in this regard the common law is incoherent and unfair.This thesis considers whether these claims of incoherence and unfairness can besubstantiated. In so doing, it considers the philosophical underpinnings of tort law inorder to explore possible bases for the current law. It also examines a number ofmore specific accounts which attempt to justify the present law as it relates to mentalillness. It is argued that none of these discussions provide a convincing basis for thedifferent treatment in law between child defendants and defendants with a mentalillness.The discussion extends beyond the confines of tort law to criminal law forexplanations for the apparent incoherence. It notes the suggestion that the criminallaw’s response to defendants with a mental illness has been fuelled to some extent bya misunderstanding of mental illness and a fear of those suffering from such illnesses.The thesis examines whether this negative attitude towards mental illness, whichsome scholars have referred to as ‘sanism’, is at work in the few Australian decisionswhich have considered the common law position in relation to mentally ill defendants.Possible changes to this area of law are then outlined and considered