Stepping Stones — from Corporate Fault to Directors' Personal Civil Liability

2012 ◽  
Vol 40 (2) ◽  
pp. 181-205 ◽  
Author(s):  
Abe Herzberg ◽  
Helen Anderson
Keyword(s):  
Civil Liability ◽  
Duty Of Care ◽  
Criminal Prosecution ◽  
Stepping Stones ◽  
Stepping Stone ◽  
Step Stone ◽  
Statutory Duty ◽  
A Company ◽  
Civil Penalty

Several recent cases have seen the courts approving ASIC's employment of a ‘stepping stone’ approach that applies directors‘ statutory duty of care as well as their other statutory duties in a novel context. The first ‘stepping stone‘ involves an action against a company for contravention of the Corporations Act 2001 (Cth). The establishment of corporate fault may then step stone to a finding that by exposing their company to the risk of criminal prosecution, civil liability or significant reputational damage, directors contravened one or more of their statutory duties in ss 180-2 of the Corporations Act, particularly their statutory duty of care, with the attendant civil penalty consequences. The effect of the ‘stepping stone’ approach is that directors may face a type of derivative civil liability for corporate fault. In this paper we analyse the stepping stone approach and assess the justification for imposing civil liability on directors for their company's misbehaviour. This paper also examines whether an extension of the stepping stone approach could make directors liable for their company's contraventions of non-Corporations Act laws as well as open the floodgates to make directors personally liable to shareholders, creditors, employees, or others affected by corporate fault.

Still Awaiting Clarity: Why Victoria’s New Civil Liability Laws for Organisational Child Abuse Are Less Helpful than They Appear

2020 ◽  
Vol 43 (2) ◽  
Author(s):  
Laura Griffin ◽  
Gemma Briffa
Keyword(s):  
Child Abuse ◽  
Common Law ◽  
Strict Liability ◽  
Civil Liability ◽  
Royal Commission ◽  
Duty Of Care ◽  
High Court ◽  
Vicarious Liability ◽  
Statutory Duty ◽  
Institutional Responses

In 2017 Victoria became the first Australian jurisdiction to initiate substantive reforms to its civil liability laws, to address barriers faced by plaintiffs seeking to hold institutions liable for child abuse. The new law, based on recommendations arising from a Victorian inquiry, establishes a statutory duty of care owed by organisations to take reasonable precautions against abuse of children under their care or supervision. On its face, the Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic) looks like a helpful clarification of this complex area of law. However, when viewed within the context of the work of the Royal Commission on Institutional Responses to Child Sexual Abuse, as well as common law principles – particularly strict liability in the areas of non- delegable duty and vicarious liability, and the High Court decision of Prince Alfred College Inc v ADC – we see that barriers and uncertainties remain.

scholarly journals Getting it right: directors’ assessment of information

2015 ◽  
Vol 30 (2) ◽  
pp. 117-131
Author(s):  
Kerri O’Donnell ◽  
Barry Hicks ◽  
John Streeter ◽  
Paul Shantapriyan
Keyword(s):  
Case Law ◽  
Duty Of Care ◽  
Executive Directors ◽  
Due Diligence ◽  
Content Type ◽  
Regulatory Guidance ◽  
Statutory Duty ◽  
Conceptual Paper ◽  
Practical Implications ◽  
Individual Interpretation

Purpose – The purpose of this paper is to explore the increasing expectation against two concepts, information and process scepticism. In light of the Centro case judgement, directors’ decisions are held to increasing standards of due care and diligence. Design/methodology/approach – This is a conceptual paper, drawing upon archival material, including statute law, case law, regulatory guidance material and media releases in Australasia. The authors review the statutory duty of care, skill and diligence expected of non-executive directors. Findings – Whether a director has exercised an appropriate level of reasonable care and skill and/or due diligence has been a matter for the courts to decide. Such retrospective analysis leaves directors vulnerable to the uncertainty of whether their individual interpretation of diligence matches up to that of the presiding judge. The authors provide directors with a framework to apply scepticism to information and processes provided by those on whom the directors may rely. Research limitations/implications – Two concepts are identified: reasonable reliance on others and the business judgement rule. The authors present arguments that challenge us to understand reasonable reliance, judgement and actions of directors in light of processing and information scepticism. Practical implications – Directors do have a different role to that of auditors; incorporating scepticism can enable directors to fulfil their responsibility towards shareholders. By applying information and process scepticism, directors of companies can reduce the likelihood and magnitude of litigation costs and out-of-court settlements. Originality/value – This paper provides a framework to apply scepticism to information and processes provided by people on whom the directors may rely.

12. Breach of statutory duty

2019 ◽  
pp. 307-316
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Civil Liability ◽  
Statutory Duty ◽  
Regulatory Statute ◽  
The Law ◽  
And Function ◽  
Role And Function

This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.

2. Incorporation

2018 ◽  
Author(s):  
Lee Roach
Keyword(s):  
Civil Liability ◽  
Asset Ownership ◽  
Essential Information ◽  
Legal Proceedings ◽  
Advantages And Disadvantages ◽  
Royal Charter ◽  
A Company

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the process of incorporation and the advantages and disadvantages of conducting business through a company. The three principal methods by which a company can be incorporated are: incorporation by Act of Parliament, incorporation by Royal Charter, and incorporation by registration. The advantages of incorporation include perpetual succession, asset ownership, and the ability to commence legal proceedings. The disadvantages of incorporation include increased formality, regulation, publicity, and civil liability.

Tort Law

2017 ◽  
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Economic Loss ◽  
Tort Law ◽  
Third Parties ◽  
Duty Of Care ◽  
Vicarious Liability ◽  
Invasion Of Privacy ◽  
Statutory Duty

Tort Law encourages the reader to understand, engage with, and critically reflect upon tort law. The book contains five parts. Part I, which is about the tort of negligence, looks at duty of care, omissions, acts of third parties, psychiatric harm, economic loss, breach, causation and remoteness, and defences to negligence. Part II considers occupiers’, product and employers’ liability and breach of statutory duty. Part III looks at personal torts and explains trespass to the person, defamation and the invasion of privacy. Part IV concerns land torts and Part V looks at liability (including vicarious liability), damages and limitations.

An Examination of the Relevance of the Codification and Application of the American Business Judgment Rule to Nigerian Corporate Law

2020 ◽  
Vol 64 (3) ◽  
pp. 373-397
Author(s):  
Wiseman Ubochioma
Keyword(s):  
Comparative Analysis ◽  
Corporate Law ◽  
Duty Of Care ◽  
American Business ◽  
Legal Regime ◽  
Business Decisions ◽  
Business Judgment Rule ◽  
Statutory Duty ◽  
The Us

AbstractThe business judgment rule is an ancient doctrine that was developed in the US. It seeks to prevent courts from reviewing directors’ decisions, on the basis that directors have the capacity and expertise to make business decisions. This article examines the desirability of applying the US business judgment rule in Nigeria. Through a comparative analysis, it argues that the peculiarities of Nigeria's corporate law and environment do not justify the application of the rule. More specifically, it contends that differences in the legal regime for derivative suits, standards of duty of care and skill, corporate law culture, and the distinct epoch in which the business judgment rule and the duty of care and skill were recognized in the US, make its application unnecessary in Nigeria. It concludes that the current statutory duty of care and skill should be retained to hold directors accountable for reckless business decisions.

Stepping Stones — from Corporate Fault to Directors' Personal Civil Liability

2012 ◽  
Vol 40 (2) ◽  
pp. 181-205 ◽  
Author(s):  
Abe Herzberg ◽  
Helen Anderson
Keyword(s):  
Civil Liability ◽  
Stepping Stones

scholarly journals CIVIL LIABILITY FOR NEGLIGENCE: AN ANALYSIS OF CYBERBULLYING POLICIES IN SOUTH AUSTRALIAN SCHOOLS

2015 ◽  
Vol 1 ◽  
Author(s):  
Peta Spyrou
Keyword(s):  
Young People ◽  
Empirical Evidence ◽  
Civil Liability ◽  
School Community ◽  
Legal Liability ◽  
Duty Of Care ◽  
Australian School ◽  
Multifaceted Approach ◽  
Whole School ◽  
Legal Duty

Cyberbullying is a form of covert bullying that affects the lives of young people and adults alike. Empirical evidence suggesting that the effects of cyberbullying may lead to protracted mental harm highlights the need for schools to take a proactive stance against this form of bullying. This article looks specifically at the effectiveness of the anti-bullying policies implemented by South Australian school authorities in order to comply with their legal duty of care in negligence. Part I introduces the topic of cyberbullying, while Part II explains a school’s legal liability for instances of cyberbullying and identifies the requisite need for anti-bullying polices. In addition, Part III highlights the need for a multifaceted approach to reduce the occurrence of cyberbullying that recognises the important roles played by parents and student bystanders. This section concludes by providing specific recommendations on how anti-bullying policies should be implemented. The article argues that while school authorities may bear legal liability for instances of cyberbullying, schools cannot effectively implement anti-bullying policies without forming a partnership with the whole school community.

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