Category Archives: Remedies and Procedure

Partlett and Zwier, ‘Non-Disclosure Agreements, Liquidated Damages and Arbitration in Context: Contracts Drawn for Good or Evil’

Abstract Why are Non-Disclosure Agreements not simply a matter of providing for the liberty interests of the parties to enter into contracts that they choose to make with each other? As a start, we want to offer an analysis of a cornerstone of such contracts, the prescription of agreed damages commonly referred to as liquidated […]

Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd

“The High Court has dismissed an appeal against a decision of the Full Federal Court of Australia regarding the principles governing the causal link required for the imposition and calculation of an account of profits where profits were made by a knowing participant in a dishonest and fraudulent breach of fiduciary duty, and has allowed […]

Issacharoff and Marotta-Wurgler, ‘The Hollowed Out Common Law’

Abstract The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine […]

‘No compensation for Google data breaches’

“Most of us resignedly consent to the use of cookies in order to use internet sites, vaguely aware that these collect information about our browsing habits in order to target us with advertisements. It’s annoying, but does it do us any harm? That is the question that came up before Warby J in a preliminary […]

Kathleen Renaud, ‘Apples to Oranges? Gendered Damages in Personal Injury Litigation: A Focus on Infant Claims’

Abstract For infant plaintiffs, personal injury litigation damage awards for loss of earning capacity are highly speculative. To quantify damages, courts rely on general population statistics and often consider the gender of the plaintiff. This article examines ways in which courts have discounted damages to minor female plaintiffs. The author notes that this discounting broadly […]

Jonathan Morgan, ‘Abolishing personal injuries law? A response to Lord Sumption’

Introduction Lord Sumption has frequently delivered speeches that provoke public debate. His 2017 lecture to the Personal Injuries Bar Association will surely do so too. Its very title, a ‘Project’ of “Abolishing Personal Injuries Law’, is incendiary. The provocation is welcome, and indeed overdue. As Lord Sumption observes, the high-water mark of reform came with […]

Jonathan Sumption, ‘Abolishing personal injuries law – a project’

Introduction It is now exactly twenty years since Patrick Atiyah published The Damages Lottery, one of the most eloquent polemics ever to be directed against a firmly entrenched principle of law. Professor Atiyah was concerned with the law of negligence generally. But his book has generally been treated as an attack on personal injuries law […]

Stephen Smith, ‘The Structure of Remedial Law’

Abstract Notwithstanding its practical and, at least in the common law, historical importance, remedial law as a legal category has attracted little attention. The kinds of broad questions that courts and commentators regularly ask about the scope, nature, and aims of substantive law subjects such as contract law and tort law have not been asked […]

AKC Koo, ‘The role of the English courts in alternative dispute resolution’

Abstract The purpose of this article is to examine the interaction between the court and alternative dispute resolution (ADR) in the legal administration of civil justice. It addresses the following questions. What is the relationship between ADR and the concept of justice? How do we make sense of the anti-ADR views, in particular the serious […]

Mark Forwood, ‘Whither no-fault schemes in Australia: Have we closed the care and compensation gap?’

Abstract No-fault compensation in New Zealand, the Woodhouse report and statutory reforms to civil liability motivated consideration of no-fault schemes in Australia. In 2011, the Productivity Commission recommended adoption of a National Injury Insurance Scheme. Since 2016, the NDIS has developed nationally, followed by variations of the NIIS for motor vehicle and workplace accidents. Compensation […]