Recent Developments in the Statutory Illegality Defences

The civil liability legislation was a reaction to perceived inadequacies in the common law. Perhaps the most significant of these supposed shortcomings was its willingness to award compensation to plaintiffs injured while in breach of the criminal law. At the height of the 2001-2002 insurance crisis, media stories decrying the deficiencies of the common law in this respect were commonplace. This barrage of criticism led to the inclusion in the civil liability legislation in all jurisdictions except for Western Australia and Victoria of generally applicable illegality defences. The aim of this short article is to discuss the interpretation of these defences by the courts.4 In order to set the scene for the analysis that follows, some observations about the defences will first be made.