Tort law in Australia

Tort law in Australia is the body of precedents and, to a lesser extent, legislation, that together define the operation of tort law in Australia. A tort is a civil wrong, other than a breach of contract. Tort law is a way in which the law can interfere with relationships between private individuals to correct a form of conduct or wrong. A large number of torts exist, and they generally derive their legal status from the common law. Since a court can define an existing tort or even recognise new ones through the common law, tort law is sometimes regarded as limitless and adaptable to modern circumstances.

Australian perspective

Generally, torts are not defined within specific statute or legislation and have evolved through judge-made law, or common law. However, each state has also created statutes to override the common law, especially in the areas of negligence, personal injuries and defamation.

Australian tort law is heavily influenced by the common law in other countries, principally the United Kingdom, by virtue of Australia's colonial heritage. However, this has since been modified by statutes such as the various State's Civil Liabilities Acts. In addition, there is also a strong and recent trend for the Australian High Court to cite with approval many principles from the United States. However, as the High Court noted:

The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of...other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.

Tort Law Distinctions between the UK and Australia

• In Australia, trespass to the person is dependent on the directness of the act interfering with the plaintiff's autonomy. Australian law does not require the wrongdoer to have intent to trespass (see Williams v Milotin). In the United Kingdom, intent is a crucial element (see Letang v Cooper).
• If an act is direct but unintentional, a plaintiff in Australia may pursue an action based on either negligent trespass or negligence. Because intent is a requirement for trespass under UK law, negligent trespass is not available in the UK.
• The onus of proof for trespass 'on the highway' is on the plaintiff at all times (see Venning v Chin). Consequently, in a public place the plaintiff must prove how there was a 'direct' and 'substantial' interference with their personal autonomy.
• A breach of non-delegable duty is not automatic on founding a cause of action against the primary tortfeasor. Fault on the part of the contracting party must be shown.
• In cases of negligence, the Australian common law has, since 2002, used a criterion of 'salient features' to determine whether a duty of care should be imposed on the defendant. In contrast, the UK common law currently uses a three-stage test.

Limitation of actions

Another example of statutory modification of torts is the various Limitation of Actions Acts, which prescribe time limits within which litigation must be commenced, and extinguishing the cause of action (the legal basis for the claim) after the period lapses. The rationale of limitation periods was elucidated by McHugh J:

• As time goes by, relevant evidence may be lost.
• It is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.
• Limitation periods give certainty to people (especially businesses and insurers) in arranging their affairs and provisioning for their liabilities within a definite period.
• The public interest requires that disputes be settled as quickly as possible.

As a general rule, the limitation period on:

• property damage cases is six years in all jurisdictions;
• personal injuries is three years in New South Wales, Queensland, South Australia and Tasmania, and six years in all other jurisdictions; and
• there are other limits on actions arising from e.g. contracts and building and construction cases.

Some common torts in Australian law

• Trespasses
  • against the person (assault, battery and false imprisonment)
  • against chattels (personal property)
  • to land
• Occupation or possession of land
  • Private nuisance
  • Cattle/Livestock trespass
  • Liability for animals (Scienter)
• Negligence
• Breach of public and statutory duties
  • Public nuisance
  • Breach of statutory duties
  • Interferences with the judicial process
• Misrepresentation
  • Deceit
  • Innocent misrepresentation/negligent advice
  • Defamation
  • Injurious falsehood
  • Passing off
• Intentional damage to economic interests
  • Interference with contractual relations
  • Conspiracy
  • Intimidation
• Interference with employment and family relations
  • Actions per quod servitium amisit (injuring an employee rendering them unable to perform services for their employer)
  • Loss of consortium of a spouse (abolished in New South Wales, Tasmania, Western Australia, and the Australian Capital Territory, by the Law Reform (Marital Consortium) Act 1984 (NSW) s 3, the Common law (Miscellaneous Actions) Act 1986 (Tas) s 3, the Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3, and the Civil Law (Wrongs) Act 2002 (ACT) s 218 respectively).

Invasion of privacy

In the case ABC v Lenah Games Meats in 2001, the High Court of Australia left open the possibility for development of a tort of invasion of privacy. The Court stated that it did not want to decide the matter at that time and only one member, Justice Callinan, gave any indication that such a tort may be acceptable [2]. It held that Victoria Park Racing v Taylor did not inhibit the development of privacy law in Australia.Victoria Park Racing v Taylor

Since ABC v Lenah Game Meats, the question of whether the breach of privacy was a valid cause of action has been entertained in at least two states. The most adventurous decision is arguably that of the District Court of Queensland in Grosse v Purvis [2003] QDC 151, in which Judge Skoien awarded damages for invasion of privacy. Conversely, the existence of the tort was questioned by Justice Gillard of the Supreme Court of Victoria in Giller v Procopets [2004] VSC 113, in which the Court doubted that the law had 'developed to the point where the law in Australia recognises an action for breach of privacy' (Giller v Procopets at para 181).

Both of these cases were settled out of court and, as a result, will not proceed to appeal. Until this tort receives the attention of an Australian appellate court, the precedential value of Grosse and Giller is limited.

The ALRC has recommended that the Commonwealth should create a private right to sue for a serious invasion of privacy. The ALRC considers that by describing the action as a tort, courts will be encouraged to draw upon established principles of tort law (which it hopes would promote a measure of certainty and consistency to the law). It also considers that the enactment of such a cause of action would bring Australia into line with recent common law developments concerning serious invasions of privacy in common law jurisdictions.

Defamation

Since 2005, all Australian states have adopted uniform defamation laws.

New South Wales: Defamation Act 2005 (NSW)

• Visscher v Maritime Union of Australia [2014] NSWSC 350

Victoria: Defamation Act 2005 (VIC)

South Australia: Defamation Act 2005 (SA)

Northern Territory: Defamation Act 2006 (NT)

Western Australia: Defamation Act 2005 (WA)

Tasmania: Defamation Act 2005 (TAS)

Queensland: Defamation Act 2005 (QLD)

• Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175

Australian Capital Territory: Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT)

One of the major and most discussed changes concerned defences to publication of defamatory statements. After the reforms, defendants can defend a defamation case on the basis of truth alone (i.e. their comments were true). Prior to the legislative changes, a number of states (including New South Wales and Tasmania) required that comments be both true, and in the public interest or public benefit, to be protected.

Other changes created by the new uniform defamation laws include limits on the maximum payout available, limitation periods for defamation, and formal recognition to any apologies made by the wrongful party.

Wrongful life

A Wrongful life claim is one in which a child plaintiff brings an action against a doctor who negligently diagnosed the plaintiff's mother. Usually, the doctor failed to diagnose rubella during the first trimester, for which there is no cure and which will inevitably cause profound disabilities in the unborn child. Had the mother been correctly diagnosed, she would have exercised her legal right to abortion.

In May 2006, the majority of the High Court of Australia rejected wrongful life, refusing to accept that life can be considered a compensable harm. This means that children who are born disabled as a result of a doctor's (admitted) negligence cannot claim damages. Parents are able to pursue 'wrongful birth' claims if the child (disabled or not) is the outcome of a negligently performed sterilisation procedure (see Cattanach v Melchior). However, post Civil Liability Act, they cannot recover the costs of raising the child in New South Wales.

Litigation

Tort law occupies much of the time of the various Magistrates', Local, District and County Courts and a substantial proportion of the time of the Supreme Courts of each of the states and territories. In addition, there are numerous specialist tribunals dealing with workers' compensation and other cases. Road accident victims are far more likely to make claims and receive tort compensation than any other group. This predominance is due not so much to the law of torts, but the fact that liability insurance is compulsory by statute in all Australian states.Motor Accidents Compensation Act NSW (1999), s8

Historical Context of Legislative reform

1900s

Since the common law evolves slowly, legislative intervention has been necessary to keep torts in pace with social needs. The Workmen's Compensation legislation from 1897 is the most potent example of the necessity of tort reform. The combination of (a) increased risks for workers during industrialisation, and; (b) the refusal by common law courts to place the costs of workplace accidents on employers; forced parliaments to redress the defects and shift the costs of industrial accidents back to employers. Legislation such as the Trade Practices Act 1974 and the state Fair Trading Acts also impinged upon the traditional tort rules in commercial and property areas.

From the early 1980s legislative intervention attempted to reduce the high volume of litigation involving motor vehicle and industrial accidents. Parallel to the rise of Thatcherism in the United Kingdom, in all Australian states common law torts were significantly modified. Speedy "no fault" compensation was made available to workers and victims of motor vehicle accidents.

The decline of HIH Insurance, the Ipp Review and beyond

Since 2002 there has been an acceleration of legislative change, driven by a perceived crisis in the price and availability of insurance, which was largely blamed on the law of negligence. The issue became charged politically, reinforced by the direct liability of government and its role as a re-insurer of last resort. New South Wales, the most litigious state, had commenced legislative change prior to 2002. Following the collapse of HIH Insurance and the related escalation in insurance premiums in public liability and medical negligence, the NSW proposals were adopted more widely throughout Australia. More on the Ipp panel, its report, the "Insurance Crisis" and Civil Liability laws above.

References

'Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning' Lucinda M. Finley (1989) Notre Dame Law Review