Australian tort law

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Tort law in Australia includes the body of precedents and, to a lesser extent, legislation, which 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.

Contents 1 The Australian perspective 1.1 Limitation of actions 1.2 Some Common Torts in Australian law 2 Recent Developments 2.1 Invasion of Privacy 2.2 Negligence and the Ipp Review/Report 2.2.1 The Ipp Report 2.2.2 Effect of the Reforms 2.3 Defamation 2.4 Wrongful life 3 Litigation 4 Legislative reform 4.1 1900s 4.2 The decline of HIH Insurance, the Ipp Review and beyond 5 Notes

[edit] The 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. 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:^[1]

"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."

There are some sharp distinctions in torts 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 trespass is direct but unintentional, a plaintiff in Australia may pursue an action based on negligence. Because intent is a requirement under UK law, this type of action 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.

[edit] 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:^[2]

• 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; and
• 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;^[3];
• personal injuries is three years in New South Wales, Queensland, South Australia and Tasmania,^[4] and six years in all other jurisdictions; and
• there are other limits on actions arising from eg contracts and building and construction cases.^[5]

[edit] 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 trespass
  • Liability for animals
• 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

[edit] Recent Developments

[edit] Invasion of Privacy

In the recent 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 [1]. It overruled a case in which the Court had previously held that Australian law offered no right to privacy: 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 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.

[edit] Negligence and the Ipp Review/Report

Negligence is a cause of action generally broken down into three component parts:

• a duty of care;
• a breach of the duty of care through an action or omission; and
• damage caused from the breach.

[edit] The Ipp Report

The Commonwealth, State and Territory governments appointed panel of experts to review the law of negligence. The panel was chaired by Justice David Ipp, a judge of the New South Wales Court of Appeal. The Review's primary purpose was to address the public view of escalating, unsustainable public liability insurance premiums and damages awards for those injured through another's fault.

In a report[2] released in October of 2002, the panel proposed wide-ranging reforms to limit:

• the circumstances in which damages can be recovered negligence;
• the types and quantum of damage that can be recovered; and
• further increases in public liability insurance premiums.

The recommendations were largely adopted by Australian governments.^[6] The Federal Government also responded by closing loopholes which allowed plaintiffs to turn to federal consumer protection legislation to recover compensation where that was barred, or made less attractive, by the states' reforms.^[7]

[edit] Effect of the Reforms

The reforms, brought about following a concerted public relations and political lobbying campaign by insurance interests who claimed that there was a generalised 'litigation explosion' or 'litigation crisis' involving civil damages claims have created notable controversy. Since this time, however, the Law Council of Australia has shown that there was no significant increase in the amount of personal injury court action in the years leading up to the Ipp Report. [3]

In particular, there is anecdotal evidence that the Civil Liability Act 2002 (NSW) led as much as 10% of NSW barristers to allow their practising certificate to lapse. This is said to have occurred because, without negligence claims to litigate, barristers actively sought out other briefs in areas such as criminal law. Subsequently, there was a saturation of barristers in the most profitable areas of the law. Moreover, some barristers lacked sufficient experience in other areas to be effective counsel, and therefore sought to use their skills in other areas.{cite}

Whilst there has unquestionably been a substantial decrease in tort claims since 2002 (and numbers will continue to dwindle as pre-2002 causes of action pass their limitation periods), insurance premiums have continued to rise. This has led to renewed calls for reversal of recent reform in the area, particularly from plaintiff's lawyers and others outside the insurance lobby, who perceive that valid claims are unable to succeed.{cite}

Since reform by the Civil Liability Acts (caused by the Ipp Report), all three of the component parts above have been substantially modified, although much of the legislation is yet to be properly tested in appellate courts. The primary changes made by the Civil Liability Acts (resulting from the Ipp Report) apply to professional liability, and serve to reinforce the decision of the High Court in 'Rogers v Whitaker', in regard to negligent failure to advise, while reinstating the 'Bolam Test' in cases of negligent professional treatment.

[edit] Defamation

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

[edit] Wrongful life

In May 2006, the majority of the High Court of Australia held that medical practitioners owe no duty of care towards a child which was not yet born. ^[8] This means that children are unable to sue medical practitioners for ‘wrongful life’. However, parents of such children are able to pursue 'wrongful birth' claims if the children are the outcome of medical negligence (see Cattanach v Melchior).

[edit] 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.{cite} 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.

[edit] Legislative reform

[edit] 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:

• increased risks for workers during industrialisation; and
• 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.^[9] 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.^[10]

[edit] 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,^[11] 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.^[12]

[edit] Notes

1. ^ Cook v Cook (1986) 162 CLR 376 at 390 (Mason, Wilson, Deane and Dawson JJ).
2. ^ Brisbane Authority v Taylor (1996) 70 ALJR 866 at 871-2
3. ^ Limitation Act 1969 (NSW), s 14(1)(b); Limitation of Actions Act 1974 (Qld), s 10(1)(a); Limitation of Actions Act 1936 (SA), s 35; Limitation Act 1974 (Tas), s 4(1)(a); Limitation of Actions Act 1958 (Vic), s 5(1)(a); Limitation Act 1935 (WA), s 38(1)(c)(vi); and Limitation Act 1985 (ACT), s 11(1).
4. ^ Limitation Act 1969 (NSW), s 18A; Limitation of Actions Act 1974 (Qld), s 11; Limitation of Actions Act 1936 (SA), s 36; and Limitation Act 1974 (Tas), s 5(1).
5. ^ See eg Limitation Act 1985 (ACT), s 40.
6. ^ Civil Law Wrongs Act 2002 (ACT); Civil Liability Act 2002 (NSW); Civil Liability Act 2002 (WA); Civil Liability Act 2002 (Tas); Civil Liability Act 2003 (Qld); Personal Injuries (Liability and Damages) Act 2003 (NT); and by amendments to the Wrongs Act 1958 (Vic) and the Wrongs Act 1936 (SA).
7. ^ Trade Practices Amendment (Personal Injury and Death) Act (No. 2) 2004 (Cth).
8. ^ Harriton v Stephens (2006) HCA 15
9. ^ David Gardiner and Frances McGlone, Outline of Torts (2nd ed, 1998), Butterworths, at 33, citing McGuire v Union Steamship Co of New Zealand Ltd (1920) 27 CLR 570 at 578-83.
10. ^ This passage needs a source.
11. ^ This assertion needs a source
12. ^ The statutory source of these modifications should be cited.