Australian Tort Law: Unity, Fragmentation and Complexity

Much recent tort scholarship and theorising has been concerned with creating supranational systems of tort law. The attempt to achieve overarching principles of tort law applicable in multiple jurisdictions is intuitively appealing (suggesting that there is a common theoretical framework for tort law) and practically important (by reducing costs). From an Australian point of view, however, the move towards a unified model of tort law is problematic because of the enormous changes made by legislation to the common law rules of tort law. That legislation has taken two forms. First, statutes have set up alternative liability regimes that effectively usurp the role of tort law in the areas in which they operate. The most potent examples of this phenomenon are the remedies provided under the Competition and Consumer Act 2010 (Cth). Second, state and Commonwealth legislatures have radically amended the common law of tort with the result that the common law applies in only a minority of cases. In Australia at least, an initially unified common law of tort has thus fragmented to reveal additional layers of complexity and divergence.