Pam Stewart joined the Faculty in 1996. Previously she was engaged in full-time private legal practice.
Pam has significant expertise in the field of Tort Law and contributes to the currency of scholarship in this field in Australia. Her book, Australian Principles of Tort Law (with Anita Stuhmcke), was the first response to the major tort law reforms that were introduced in all Australian jurisdictions in 2002 and is now in its 4th edition. The focus of much of her continuing research in tort law has been on the way in which the law of negligence provides remedies for various classes of plaintiff including adolescents and young people, victims of human trafficking and slavery and victims of institutional abuse. Pam has completed a study(with Anita Stuhmcke) of negligence cases in the High Court of Australia over a 10 year period, the results of which were published in 2014 in the Melbourne University Law Review and The Sydney Law Review. Pam is continuing (with Anita Stuhmcke) further empirical research of special leave applications in the High Court of Australia.
Pam teaches Torts. She values the connection between academic endeavour and the practical application of the law and her approach to teaching is to focus on the development of autonomous learners, who will become ethical, reflective and creative lawyers. Currency and relevance are integral to her teaching practice and her considerable experience in practice as a lawyer in the area in which she teaches and researches provides her teaching with a practical edge recognised and valued by students
- Investigation of the recognition of 'pre-birth' entities by Australian law in the 21st century (with Anita Stuhmcke, UTS)
- Analysis of the application and interpretation of the Civil Liability Act 2002 (NSW), with particular emphasis on the provisions regarding dangerous recreational activities.T
- Tortious remedies for child plaintiffs, victims of slavery and human trafficking and victims of institutional abuse
- A study of negligence cases in the High Court of Australia over a 10 year period, 2000-2010
- Empirical research of special leave applications in the High Court of Australia (with Anita Stuhmcke)
- Civil Litigation
Legislative reform has recently transformed the law of torts in Australia. It is no longer a body of unified common law but is an area governed by a diverse array of non-uniform statutes in each Australian jurisdiction. This textbook is one of the first to provide both commentary and critical analysis of this tort law reform legislation. It provides a fresh interpretation of historical events and analyses the new challenges and developments facing the law of torts in the twenty first century. Offering ideas and perspectives on the law of torts, it assists all those wishing to traverse this fascinating area of law. Nevertheless the work is written with the aim of making tort law accessible to students new to the field and provides a foundation for ongoing engagement in the area. Essential reading for all those seeking guidance on the tort law reform legislation, this text makes a valuable contribution to scholarship in the field, while its clear and comprehensive style make it a reliable and interesting textbook for law students.
Stewart, P & Stuhmcke, A 2019, 'Litigants and Legal Representatives: A Study of Special Leave Applications in the High Court of Australia.', Sydney Law Review, vol. 41, no. 1, pp. 35-71.View/Download from: UTS OPUS
This article presents the findings of the first systematic and comprehensive study to probe a substantial tranche of applications for special leave to appeal to the High Court of Australia. Special leave to appeal is discretionary and a case must satisfy the public interest test in s 35A of the Judiciary Act 1903 (Cth) to be granted leave to appeal. This article presents findings as to the characteristics of the litigants and legal representatives involved in special leave applications. The data reveals high numbers of self-represented applicants and low numbers of legally aided applicants, as well as disproportionate success rates for those litigants who enjoy an advantage because of greater resources and litigation experience. The study also highlights a striking lack of diversity in both applicants and lawyers appearing in special leave applications. These are all matters that are outside the control of the High Court and that have an effect on the nature and flow of the Court’s appellate work. The study demonstrates that a High Court appeal is, in many cases, restricted to well-resourced litigants and that there are significant access to justice issues for self-represented litigants due to the limited availability of legal aid.
Stewart, P 2016, 'Drone danger: Remedies for damage by civilian remotely piloted aircraft to persons or property on the ground in Australia', Torts Law Journal, vol. 23, no. 3, pp. 290-319.View/Download from: UTS OPUS
Civilian use of drones (remotely piloted aircraft: RPA) in Australian skies is
increasing at a dramatic rate. While there is a strict regulatory framework in which RPA operate, they have the capacity to cause significant damage to persons or property on the ground. This article evaluates the availability and scope of statutory and common law remedies for such damage
demonstrating a complex matrix of potential accountability. Statutory strict liability under damage by aircraft legislation does not apply uniformly to all RPA with the definition of RPA as ‘aircraft’ the crucial determinant. Where the statutory remedy is unavailable, common law causes of action must be relied upon with the statutory safety regulations providing assistance in establishing liability. This article demonstrates that it would be appropriate for legislators to ensure uniform application of the strict liability regime to all RPA and for compulsory identification and insurance of RPA.
Stewart, PE & Silink, A 2016, 'Tort Law Reform to Improve Access to Compensation for Survivors of Institutional Child Sexual Abuse', University of NSW Law Journal, vol. 39, no. 2, pp. 553-595.View/Download from: UTS OPUS
Stewart, PE & Stuhmcke, AG 2014, 'Lacunae And Litigants: A Study Of Negligence Cases In The High Court Of Australia In The First Decade Of The 21St Century And Beyond', Melbourne University Law Review, vol. 38, no. 1, pp. 151-197.View/Download from: UTS OPUS
This article examines a snapshot in time of appeals in negligence cases to the High Court during the first 11 years of the 21st century. In total, 78 negligence cases decided by the High Court during this period are analysed. Cases granted leave to appeal to the High Court are exceptional, raising novel or difficult issues of law and depend upon an injured plaintiff s practical and financial ability to access legal services. This article analyses the gender and age of litigants, and the accident type in these appeals in order to determine what, if anything, can be learnt about tort litigation patterns. This study found that more men litigated in High Court appeals in the period under study than any other group. When analysed against the background of existing evidence as to: the nature and type of injuries suffered in Australia which require hospitalisation; who is injured; who litigates at first instance; who appeals; and the nature of negligence cases, it becomes clear that adult male plaintiffs appear more often in tort law than women and children due to more men being injured as a group and female and child injuries happening more often in no-fault contexts. The data also indicate that plaintiffs are far less likely to succeed in negligence appeals to the High Court than defendants. It is argued that this emphasis upon personal responsibility in the tort of negligence seems set to continue in light of the statutory tort law reforms which took place across Australia in 2002.
This article reports and analyses the results of a study of High Court negligence
decisions from 2000 to 2010. The research establishes that the common law of
negligence has been evolving toward the imposition of greater personal
responsibility on plaintiffs in most circumstances, but especially in recreational
activity cases. Further, the study reveals a substantial level of protection for
public authority defendants at common law, challenging the assumptions that
underpinned the significant statutory protections that were enacted in Australian
jurisdictions from 2002 onwards. The data analysis therefore corroborates
previous work of Australian tort law scholars and contradicts the claims made
by policymakers at the start of the 21st century about the urgent need for tort
law reform. Given that there has not been an empirical study of 21st century
High Court negligence decisions to date, the study provides a foundation for
future assessment of the effect of Australian tort law reform legislation.
Stuhmcke, AG & Stewart, PE 2013, 'The rise of the common law in statutory interpretation of tort law reform legislation: Oil and water or a milky pond?', Tort Law Journal, vol. 21, no. 1, pp. 1-26.View/Download from: UTS OPUS
The common law world has long puzzled over the interplay between common law and statute. This article demonstrates nuance in the approach to statutory interpretation in the six cases decided by the High Court between 2009 and 2013 involving interpretation of the tort law reform legislation: Adeels Palace Pty Ltd v Moubarak,1 Strong v Woolworths Ltd,2 Wallace v Kam,3 Wicks v State Rail Authority of New South Wales,4 Insight Vacations Pty Ltd v Young5 and Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd.6 The cases evidence that, in the interpretation of a single statute the Civil Liability Act 2002 (NSW) the High Court employs a diversity of statutory interpretation techniques which may be characterised as ranging between an `oil and water approach (to those statutory provisions which limit or abrogate previous common law rules and rights) to a `milky pond approach (where the common law is used analogically to interpret and develop statute law). This article argues that the employment of this range of techniques underlines the view that legislation and common law cannot be seen as separate and independent simply because of their independent sources. Rather they `exist in a symbiotic relationship7 as `products of the same inherently dynamic legal process
Stewart, PE & Evers, M 2010, 'The Requirement that Lawyers Certify Reasonable Prospects of Success:Must 21st Century Lawyers Boldly Go where No Lawyer has Gone Before?', Legal Ethics, vol. 13, no. 1, pp. 1-38.View/Download from: UTS OPUS
There is a growing trend in Australia to require lawyers to certify reasonable prospects of success for the cases they bring and defend. New South Wales has led the way with the Legal Profession Act 2004 (NSW) Pt 3.2 Division 10 requiring legal practitioners to certify reasonable prospects of success in all claims for damages. The requirement places a significant onus on lawyers to make a judgment about the merits of a case before it is begun, yet the common law has long provided mechanisms to ensure that cases without prospects of success do not go to trial. This article considers Australian legislative provisions requiring lawyers to certify reasonable prospects of success of cases. It examines the application of the NSW legislation by the courts highlighting the difficulties of interpretation of what constitute 'reasonable prospects of success' and the application of the legislation in the context of the dynamic litigation process. It is argued that these legislated obligations on lawyers will have a detrimental effect on access to justice by denying parties, in particular plaintiffs, the opportunity to have their cases properly and fully determined in the courts. This article examines common law mechanisms for dissuading cases without prospects and argues that the general law is an effective system for ensuring that cases without prospects of success are not maintained. The Australian experience is instructive for consideration of optimal reform packages for the administration of justice and to evaluate the role of any litigation lawyer within the judicial and court process.
This case note examines the decision of the High Court of Australia in Roads and Traffic Authority of New South Wales v Dederer, which marks the common law's continued departure from shared liability, for tragic accidents into the realm of personal liability The decision has particular significance for children and young people who may be held accountable for their reckless actions, notwithstanding the 'exuberance of youth. In particular the case note analyses the High Court's emphasis on obvious risks and personal responsibility and the Court's attempt to limit liability through a consideration of the plaintiffs conduct on questions of the scope of the duty of care and at the breach of duty enquiry rather than confining it to the issue of the plaintiff's contributory negligence.
Stewart, PE & Monahan, GI 2008, 'Roads and Traffic Authority of NSW v Dederer: Negligence and the Exuberance of Youth', Melbourne University Law Review, vol. 32, no. 2, pp. 739-761.View/Download from: UTS OPUS
This case note examines the decision of the High Court of Australia in Roads and Traffic Authority of New South Wales v Dederer, which marks the common laws continued departure from shared liability for tragic accidents into the realm of personal liability. The decision has particular significance for children and young people who may be held accountable for their reckless actions, notwithstanding the `exuberance of youth. In particular, the case note analyses the High Courts emphasis on obvious risks and personal responsibility and the Courts attempt to limit liability through a consideration of the plaintiffs conduct on questions of the scope of the duty of care and at the breach of duty enquiry, rather than confining it to the issue of the plaintiffs contributory negligence.
Stewart, PE & Stuhmcke, AG 2007, 'Legal Pragmatism and the Pre-Birth Continuum: an absence of unifying principle', Journal of Law and Medicine, vol. 15, no. 2, pp. 272-295.View/Download from: UTS OPUS
The common law has historically been clear - the rights of the unborn do not exist prior to birth. A child becomes a legal person and able to enforce legal rights upon being born alive and having a separate existence from her or his mother. This article assesses whether new developments in biomedical technologies have left this legal principle inviolate and explores what the state of law is in relation to pre-birth. It argues that there is a pre-birth continuum where the law punctuates points in a lineal timeline fashion as to when a pre-birth "non-entity" becomes a legal entity. The article concludes that there is no singular rule of law with respect to being or becoming a human but rather a collection of discrete and increasingly divergent legal categories. This recognition of a pre-birth continuum or timeline as to the legal recognition of this "non-entity" has significant ramifications for the future development of law and impacts on legal thinking about what it means to be human.
Leahy, CJ & Stewart, PE 2006, 'Dangerous Recreational Activity in NSW', Tort Law Review, vol. 14, no. 2, pp. 58-63.
Stewart, P & Leahy, C 2006, 'Dangerous Recreational Activity in New South Wales'.
Stewart, PE 2006, 'More on Obvious Risk and Dangerous Receational Activity', Australian Civil Liability, vol. 3, no. 7, pp. 67-70.
Thorpe, DE & Stewart, PE 2006, 'Not to be too pedantic ... but what exactly is a dangerous recreational activity?', Australian and New Zealand Sports Law Journal, vol. 1, no. 1, pp. 121-158.View/Download from: UTS OPUS
This article examines the defence to a claim in negligence which is provided by Section 5L of the Civil Liability Act 2002 (NSW). The section was enacted as part of the extensive reform of tort law in New South Wales following the Review of the Law of Negligence Final Report, in late 2002 (the Ipp Report). The section provides a complete defence where a plaintiff is injured by an obvious risk of a dangerous recreational activity. Similar provisions exist in other states tort law reform legislation. This article examines in detail the decision of the New South Wales Court of Appeal in Fallas v Mourlas, the leading case so far in New South Wales, on the interpretation and application of section 5L and, in particular, the manner in which the Court of Appeal interpreted the key words used in the section. The definition of a dangerous recreational activity as one which involves a significant risk of physical harm is crucial to the application of the defence and the authors conclude that the interpretation of those words by Ipp JA in the New South Wales Court of Appeal is problematic. The authors consider some relevant rules of statutory interpretation as well as relevant parts of the IPP Report and other decisions in the Supreme Court of New South Wales and Court of Appeal concerning the `dangerous recreational activity defence. The authors conclude that the circumstances in which the defence will be available are far from certain and that further appellate consideration of section 5L or legislative amendment is needed.
Stewart, PE & Edmundson, P 1998, 'Liability of a Holding Company for Negligent Injuries to an Employee of a Subsidiary: CSR v Wren', Torts Law Journal, vol. 6, no. 2, pp. 123-134.
Stewart, PE & Stuhmcke, A 2017, 'The Child in utero and ex utero' in Young, L, Kenny, MA & Monahan, G (eds), Children and the law in Australia, LexisNexis, Chatswood, pp. 55-82.View/Download from: UTS OPUS
Stewart, PE & Silink, A 2017, 'Compensation for survivors of Institutional Child Sexual Abuse in Australia: Tortious rights and challenges for reform' in Young, L, Kenny, MA & Monahan, G (eds), Children and the Law in Australia, LexisNexis Butterworths, Chatswood Australia, pp. 337-375.View/Download from: UTS OPUS
The risk and incidence of sexual abuse of children in an institutional context has been brought to increasingly greater public attention since the 1990’s, both in Australia and around the world. In Australia, several state inquiries since the mid-1990’s addressed sexual abuse of children in state care and religious institutions in Australia, and there have been numerous other state and federal inquiries in that time which have considered in some way the issue of child sexual abuse in the context of a broader or different remit. However, on 11 January 2013 a national Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) was established to focus specifically on how to better prevent, report and respond to child sexual abuse in an institutional context. It is expected to deliver its final report by the end of 2017.
The Royal Commission’s work is revealing the nature and extent of child abuse in a wide range of different institutional contexts in Australia. As at 10 September 2015, the Royal Commission had received allegations relating to 3,566 different institutions. In its Consultation Paper on Redress and Civil Litigation (“Consultation Paper”), the Royal Commission analysed the data obtained from private sessions held between 7 May 2013 and 31 August 2014 in relation to reported incidents of child sexual abuse and categorised it by institution type, or activity. The incidence per category was as follows: 34.6% in out-of-home residential care; 28.1% in educational day and boarding schools; 16.6% in religious activities; 7.6% in out-of-home foster or kinship care; 4.2% in recreational, sporting and hobby groups or institutions; 2.1% in health and allied fields or by medical practitioners; 1.1% in juvenile justice; 0.9% in childcare centres, and smaller representation of incidents in other institutional categories. A significant proportion of this reported abuse related to faith-based institutions. For example, ...