Dynamic Torts and Dynamic Facts?: Social Change, Social Facts and the Evolution of Tort Law

Speaker: Professor Kylie Burns, Griffith University

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As a creature (traditionally)  of the common law, the law of torts is often lauded for its ability to evolve dynamically over time in response to social change and social values.  It is often credited for its ability to do so in a way that is less sporadic and erratic than legislative mechanisms. However, there is reason to believe that tort is not as  ‘dynamic’ or as responsive to changes in social facts as we may have been led to believe.  Its evolution is marked, as Lord Sales has argued in a recent speech, by a key tension between the need for flexibility and the imperatives of certainty, consistency and coherence. 

There are a range of ways that tort law may evolve in response to social change, social values and social phenomena.  Courts may recognise entirely ‘new’ torts, or they may change the legal principles governing the elements of existing ones, and the application of these elements over time. This paper argues that tort law is generally not particularly ‘dynamic’ (in the sense of being ‘enthusiastic’) in either developing existing tort principles or embracing new torts. It is also not very ‘dynamic’ in its ability to respond to and incorporate ‘dynamic’ social ‘facts’. By way of illustration, the paper considers three case studies drawn from the tort of negligence. The first addresses the concept of ‘reasonableness’ in the award of personal injury damages, discussing the case of Stewart v Metro North Hospital and Health Service (‘Stewart v Metro North’) currently on appeal in the High Court of Australia.  This case raises the important question of whether a plaintiff should be awarded damages for care and support based on institutionalisation, rather than care in their own home. The second case study discusses recent developments in the recovery of damages for psychiatric injury in the Supreme Court of the United Kingdom and in the Australian High Court. The third relates to recognition of novel causes of action in negligence in the areas of climate change and domestic violence.

About the Speaker

Kylie is a Professor and Deputy Head of School (Research) in the Griffith Law School and a Fellow of the Australian Academy of Law. She has research and teaching expertise in personal injury law, accident compensation systems, the NDIS, judicial reasoning and cognition, and judicial psychological stress. She is a co-author of the leading Australian torts textbook (with Luntz, Hambly, Dietrich, Foster, Grant and Harder) Torts: Cases, Legislation and Commentary. She is currently a chief investigator on an ARC Discovery Project concerning Judicial Well-Being. She has been the recipient of numerous teaching awards and grants including a National Citation from the Office for Learning and Teaching.

Read Professor Kylie Burns's biography and publications