LWB145 Week Eleven Lecture Notes
Legal Personality and Capacity
Objectives and Weekly Readings
Purpose of lecture is to introduce you to some basic concepts of legal personality and capacity, and the
problems that lay at the edges of these neat categories.
In the tutorial we will be given a topic and some readings and will need to write an essay plan.
As for readings, there is no one ‘good’ chapter or article that covers the whole topic.
For the tutorial question regarding animals, indigenous people and the elderly, see pages 167 – 168 of the
Where the tutorial question says ‘should be granted legal personality’ it should be read as ‘should be
granted full legal capacity’.
What is Legal Personality and Capacity?
“Personality” = the quality, character or fact of being a person as distinct from being a thing” (Oxford English
Legal persons – those recognised by the legal system as capable of having rights and duties and taking part in
Includes all natural persons, and groups such as corporations and ‘bodies politic’ – governments of nations
But not all legal persons have full legal capacity – that is, they may be recognised for some legal purposes
but not others.
Even those who have capacity may lack ‘standing’ to sue in some cases – need a special interest to sue for
breach of duty to the public in public nuisance, admin law.
Are legal persons in domestic systems of law.
Human individuals can enter contracts, own property, sue or be sued, give evidence in court etc.
But we will consider below the limits the law has placed on the legal capacity of some human persons.
Is gender a factor in legal personality and to what extent is this now only of historical significance?
Women and entry to university
Have women always had equal access to university education?
Jex-Blake v Senatus of University of Edinburgh (1873)
Sophia’s enrolment at medical school accepted with condition that women taught in separate
Some professors refused to teach her.
Court held regulations admitting women to study at university were illegal.
Differences in mental and physical conformation.
“Ornamental parts of education”.
Women and professional practice entitlements
Women as “non-persons”.
Re Edith Haynes (1904) 6 WALR 209
Edith sought to be admitted to practice law in WA in 1896.
Legal Practitioners Act said “any person”.
Court held – “civilized world” not suggest right of women to be admitted – women not “any
Re Kitson ( SASR 230
Mary wished to become a notary public in SA in 1920.
Public Notaries Act said “any person”.
Court held – woman not “any person”. Minors
Can human beings of any age exercise the same rights and obligations under a legal system?
Age of Majority
S17 Law Reform Act 1995 (Qld) - age of majority changed to 18 from 21.
What are the consequences of attaining majority?
Minors and Contracts
Contracts generally not enforceable against a minor.
Beneficial contracts of service e.g. employment.
Contracts for necessaries e.g. Mercantile Credit v Spinks – car necessary for minor who was a
Is an unborn child a person?
Watt v Rama  VR 353 – unborn child is not a legal person but once born there is a relation back
S292 Criminal Code – when a child becomes a human being.
S313 Criminal Code – killing unborn child.
Civil Liability of a Child
Can a child be sued in tort law?
No minimum age for tortious capacity.
Standard of care takes account of age, experience and intelligence.
McHale v Watson – 12 year old not liable for throwing metal rod injuring plaintiff’s eye.
Griffiths v Woods – 6 year old not contributory negligent for riding bike in front of semi-trailer.
Can a child be liable in criminal law?
Presumptions about formation of criminal intent (s29 Criminal Code (Qld))
Under 10 – irrefutable presumption that can’t commit a crime.
10 – 14 – rebuttable presumption that can commit a crime.
Over 14 – age of full criminal responsibility.
S17 Juvenile Justice Act 1992 (Qld): child under 17 dealt with separately by police, courts.