Date: Tue, 6 Dec 2005 11:58:3

From: Robert Stevens

Subject: VL and punitive damages

Neil Foster wrote (in part):

To some extent his Honour's judgement (see [10]-[15]) depended on distinguishing the terms of the 1983 Act from the judgement of Kitto J in Darling Island Stevedoring and Lighterage Co Ltd v Long (1956-57) 97 CLR 36. That is, because the 1983 Act was clear that the State was liable for the "torts" of the officer rather than the "actions" of the officers, it was not possible to argue that it implemented the so-called "master's tort" theory represented by the judgement of Kitto J in that case. It seems fairly clear however that in a very polite and restrained way Basten JA was tip-toing around the clash of views represented by the judgements of Fullagar J and Kitto J in the Darling Island case. It would be nice if the High Court would revisit the area and make it clear once and for all that the "servant's tort" theory is the one that courts apply these days.

Surely the difficulty with adopting Fullagar J's view as to the nature of vicarious liability is that, if correct, Darling is wrongly decided? At least Kitto J explains the result.

RS

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