Page 4750 - Week 15 - Thursday, 21 November 1991
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MR HUMPHRIES: Mr Connolly says that we cannot put a price on love. These days we put a price on everything. If I were married, I am sure I would consider the loss of my wife's consortium a matter of enormous injury. I would feel that compensation was due, as I am sure my wife would were I to be lost and she to be deprived of my very valuable consortium.
However, that again is beside the point, since my party has decided to endorse this legislation. This obviously is the march of progress. I feel that we are entering a new era; so be it. I am sure we will be able to consider in due course the effect of legislation such as this on the nature of our society and the relationships in that society as they develop in future years.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (10.35), in reply: I thank everyone who spoke in this debate. Mr Stefaniak, Mr Collaery and Mr Humphries have all made valuable contributions. I detect in Mr Humphries' remarks - - -
Mr Wood: Typical legalistic contributions.
MR CONNOLLY: Mr Wood always mutters when one of these legal matters is being debated, and all the lawyers congratulate one another on their erudite remarks. I detected from Mr Humphries' remarks that he might have had a different view in the party room. He gave us a litany of the potential perils of abolishing the defence of contributory negligence and then said what the party view was. I must say that I thought, "There speaks the voice of a true conservative".
The history of this defence is fascinatingly laid out in the Law Reform Committee's report. The High Court in 1926, in the case of Bourke v. Butterfield and Lewis, decided as a matter of principle that the defence did not apply to statutory duty cases. There the position lay until 1940, when the House of Lords in England, in the case of Caswell v. Powell Duffryn Associated Collieries Ltd, came to the contrary view. I presume that some poor Welsh miner was negligent enough not to read the warning sign carefully or not to put his helmet on carefully and was seriously injured, and the colliery won against him. Interestingly, following a decision in 1943, the New South Wales Government in 1945 abolished the defence by statute. There the position lay in New South Wales until 1989, when along came Nick Greiner and replaced it. So, there is always an attempt to go back to the past.
The High Court, unfortunately, in the case of Piro v. W. Foster and Co. Ltd in 1943, followed the English House of Lords precedent instead of the earlier 1926 precedent. That was the view of the Australian High Court up until the last decade. It has almost slavishly followed English authorities because the English House of Lords was assumed
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