Taking disagreement seriously
Abstract
The purpose of this chapter is to reflect on two related topics, namely the relationship between common law and statute, and the relationship between courts and legislatures. These reflections are prompted by two recent developments in tort law. The first is the Australian Commonwealth Government’s Review of the Law of Negligence (2002) and its legislative aftermath;1 and the second is a set of judicial decisions in Australia and the UK concerned with the recoverability of damages for loss arising out of the birth of a child. These two developments, and the two topics I want to discuss, are neatly juxtaposed in the quotation at the head of this chapter. It is taken from a case dealing with liability for damages for the cost of rearing a child born as a result of a failed sterilisation procedure, and in a footnote to the passage Kirby J refers to the Review to back up his point about the ‘decisive and semi-arbitrary’ nature of legislation.