Reviews
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00167 |
| Published date | 01 July 1998 |
| Date | 01 July 1998 |
REVIEWS
Nicholas J. Mullany (ed), Torts in the Nineties, Sydney: LBC Information
Services, 1997, xlv +342pp, hb AUS $125.00.
The last decade highlights a number of significant challenges for the law of torts.
We now exist in an environment of mass production, high population, increased
personal mobility and shrinking international boundaries. The world is getting
smaller, fuller, faster and – with the continuing explosion of informational media –
ever more vociferous and intrusive. At precisely the same time – and probably for
precisely these reasons – individuals are demanding more personal space and less
constriction upon their movement. Increasing amounts of wealth are tied up in
intangible economic assets with volatile values; there is apparently less public
money for investment in managed schemes of harm-prevention or accident-
compensation; evidence is emerging of the true costs of mental illness; and the
consciences of nations have been pricked by shocking truths about the extent and
prevalence of sexual abuse to some of the most vulnerable members of our
societies. Add to all this the deep-seated anxieties created by diseases such as
AIDS, cancer and CJD, the pressures of the workplace and legitimate (and
escalating) concerns about the costs of Access to Justice and the 1990s begin to
resemble something of a pressure-pot of risk. Flexible as tort law has proved in the
past, these years flag important questions about its capacity to cope with the
boiling pot; indeed about its very appropriateness as a mechanism for temperature-
control.
This thought-provoking set of essays focuses upon a number of current issues
within tort law, which impact directly upon its capacity to meet the challenges of
the modern age. It brings together the experience of a wide range of common law
jurisdictions and the expertise of some leading thinkers in the field. Whilst some
chapters focus upon developments within specific countries, the text remains
relevant and important to tort lawyers of all common law backgrounds. Since tort
law is so obviously and inescapably a product of social policy, this comparative
strategy is undoubtedly one of the text’s very best features. For if we are to
understand the species which is tort law – and understanding is very much the aim
of this work – we need to analyse its behaviour in each of the jurisdictional
environments in which it has settled. Only in this way can its responsiveness and
adaptability to change be tested and its true nature be fully revealed.
In line with contemporary developments, several chapters (nearly a quarter of
the total, in fact) focus or touch upon the capacity of the law of negligence to
protect the pure economic interest – once the preserve of the law of contract, but of
ever-increasing importance in a modern world fixated with intangible forms of
wealth. Of interest here is Sir Anthony Mason’s observation that, England aside,
there is greater trans-national consensus on the correct approach to liability than
might at first appear to be the case, through courts’ reference to lower-level
concepts such as ‘undertakings,’ ‘reliance,’ ‘assumptions of responsibility,’
‘control,’ and ‘relationships akin to contract.’ Contractual analogy continues, it
seems, to cast a potent spell over the imagination of the law of negligence, as once
The Modern Law Review Limited 1998 (MLR 61:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 589
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