The system of tort law in Australia is broadly similar to that in other common law countries. However, some divergences in approach have occurred as its independent legal system has developed.

Some of these differences include Australia-specific nuances involving: (1) what torts are recognised, (2) the steps to establish liability, and (3) calculations for awards of damages.

These differences have emerged due to both legislative reform, as well as common law developments.

Overview

Throughout Australia's early history, its tort jurisprudence largely complied with UK precedent. In more recent years, its jurisprudence has diverged from the UK and other common law countries.

Developments in Australian Tort law are most powerfully driven by the High Court of Australia. In doing so, the High court frequently refers to other apex courts around the world for comparative law purposes. It has said that it is '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'.[1]

Over the years, differences of application have emerged in Australia's tests for causation, duty of care, calculation of damages, amongst other areas. These have been documented by academics.[2] Specific differences include the 'salient features' framework used to determine a duty of care for negligence,[3] and the lack of an intent element for the tort of trespass.[4]

To the extent tort law is defined by Australia's nationally uniform common law, its tort regime is also nationally unified.[note 1][5][6] However, due to the fact that Australian State parliaments are able to modify law within their own jurisdictions through statute; in practice each State has its own quirks. There have been attempts on occasion to unify tort law between the States to some extent.[7]

Statutory reform

Parliaments have occasionally decided it necessary to modify the law of torts to address public concerns. A prominent historical example of this is the 1897 Workmen's Compensation legislation, which was enacted in response a perceived failure of the common law to address risks of harm to workers during industrialisation.[8]

Other major reforms affecting tortious liability has included the Trade Practices Act 1974 and the state Fair Trading Acts.

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 in Tasmania, Victoria and the Northern Territory.[9]

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.[10] 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][12] 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.[7][13]

Elements of various torts

Tort of Invasion of privacy

There is currently no freestanding tort for the invasion of privacy in Australian law. In ABC v Lenah Games Meats in 2001, the High Court left open the possibility of the tort being recognised in future.[14][15] The court has also held that Victoria Park Racing v Taylor[16] did not inhibit the development of privacy law in Australia.[14]

Puisne decisions entertaining the possibility of the tort have occurred in at least two states.[14] One noteworthy decision was a District Court of Queensland award of damages for the invasion of privacy by Judge Skoien.[17] Another was a decision of Justice Gillard of the Supreme Court of Victoria in Giller v Procopets, in which the Court held the law had 'not developed to the point where the law in Australia recognises an action for breach of privacy'[18] Both cases were settled out of court and, as a result, did not proceed to appeal; and so have no value as legal precedent.

The Australian Law Reform Commission has recommended the Commonwealth create a private right to sue for a serious invasion of privacy.[19] The body has argued 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).[19] It also considers 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.[19]

Defamation

Australia's defamation law emerged from English common law, but has since evolved in application though statute and judicial decisions. To the extent Australia's system retains commonalities with English law, UK jurisprudence retains value as providing guidance to Australian courts.

One key tension in Australia is a need for defamation law to strike an appropriate balance between the protection of an individual's reputation and values relating to free speech; as well as constitutional protections of political communication. Many of the complexities that arise from defamation proceedings are said to derive from judicial attempts to maintain that balance. The decision of Lange v ABC is an example of a case where Australia's constitutional free speech protections were assessed in the context of a defamation proceeding.

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.[20]

In May 2006, the majority of the High Court 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.[3][20][21] Parents are able to pursue 'wrongful birth' claims if the child (disabled or not) is the outcome of a negligently performed sterilisation procedure.[22] However, since the Civil Liability Act, they cannot recover the costs of raising the child in New South Wales.[23]

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[24] 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.[25]

List of torts available in Australia

The below is a list of distinct torts relevant to Australian law

Well-established torts

  • Breach of public and statutory duties
    • Public nuisance[26]
    • Breach of statutory duties[27][28]
    • Interferences with the judicial process
  • Defamation
  • 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[29] (abolished in New South Wales,[30] Tasmania,[31] Western Australia,[32] and the Australian Capital Territory.[33]
  • Intentional damage to economic interests
    • Interference with contractual relations
    • Conspiracy
    • Intimidation
  • Negligence
  • Misrepresentation
    • Deceit
    • Innocent misrepresentation/negligent advice
    • [[Defamation|Defamation]]
    • Injurious falsehood
    • Passing off
  • Trespass
  • Occupation or possession of land

Torts where the availability is not certain

  • [[Invasion of privacy (Australian tort law)|Invasion of privacy]]

Defunct torts

  • [[Loss of consortium|Loss of consortium]]

Notes

    1. ↑ Lipohar v The Queen (‘Lipohar’) (1999) 200 CLR 485

    References

    1. ↑ Cook v Cook [1986] HCA 73, (1986) 162 CLR 376 per Mason. Wilson, Deane and Dawson JJ.
    2. ↑ Vout, Paul T (2016). Torts The Laws of Australia. Thomson Reuters (Professional) Australia Limited. ISBN 9780455238487.
    3. 1 2 Tabet v Gett [2010] HCA 12, (2010) 240 CLR 537, High Court.
    4. ↑ Williams v Milotin [1957] HCA 83, (1957) 97 CLR 465, High Court.
    5. ↑ Boyle, Liam (2015). "An Australian August Corpus: Why There is Only One Common Law in Australia". Bond Law Review. Vol. 27. Archived from the original on 31 July 2017.
    6. ↑ Lange v ABC [1997] HCA 25 at 562–6, 189 CLR 520 (8 July 1997)
    7. 1 2 See, e.g., Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld); Civil Liability Act 2002 (Tas); Civil Liability Act 2002 (WA).
    8. ↑ Gardiner, D & McGlone, F (1998). Outline of Torts (2nd ed.). Butterworths. p. 33. citing McGuire v Union Steamship Co of New Zealand Ltd [1920] HCA 37, (1920) 27 CLR 570 at 578-83.
    9. ↑ Drabsch, T (2005). "No Fault Compensation" (PDF). Briefing Paper No 6. Parliamentary Library, NSW. Retrieved 25 May 2017..
    10. ↑ "Final report: no justification for tort reforms". Lawyers Weekly. Lawyers Weekly. 2 March 2012. Retrieved 30 July 2016.
    11. ↑ "NSW slowest in catching murderers on the loose". The Sydney Morning Herald. 28 January 2005.
    12. ↑ Spigelman J (2004). "Tort Law Reform in Australia". Archived from the original on 8 August 2008.
    13. ↑ McDonald, Barbara (2005). "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia". Sydney Law Review. (2005) 27(3) Sydney Law Review 443. Retrieved 5 August 2014.
    14. 1 2 3 Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63, (2001) 208 CLR 199; 185 ALR 1, High Court.
    15. ↑ ABC v Lenah Game Meats Pty Ltd [2001] HCA 63 at [313-[336] per Callinan J.
    16. ↑ Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45, (1937) 58 CLR 479, High Court.
    17. ↑ Grosse v Purvis [2003] QDC 151, District Court (Qld).
    18. ↑ Giller v Procopets [2004] VSC 113 at [188], Supreme Court (Vic).
    19. 1 2 3 Australian Law Reform Commission. "Summary" (PDF). Serious Invasions of Privacy in the Digital Era – Final Report (PDF). [2014] Australian Law Reform Commission 123.
    20. 1 2 Harriton v Stephens [2006] HCA 15, (2006) 226 CLR 52, High Court.
    21. ↑ Waller v James [2006] HCA 16, (2006) 226 CLR 136, High Court.
    22. ↑ Cattanach v Melchior [2003] HCA 38, (2003) 215 CLR 1, High Court.
    23. ↑ Civil Liability Act 2002 (NSW) s 71.
    24. ↑ Graycar, Reg (2002). "Public Liability: A Plea for Facts". University of New South Wales Law Journal. (2002) 25(3) University of New South Wales Law Journal 810.
    25. ↑ Motor Accidents Compensation Act 1999 (NSW) s 8 Offence of using uninsured motor vehicle on road.
    26. ↑ Walsh v Ervin [1952] VicLawRp 47, [1952] VLR 361.
    27. ↑ Mummery v Irvings Pty Ltd [1956] HCA 45, (1956) 96 CLR 99, High Court.
    28. ↑ Groves v Wimborne [1898] 2 QB 402.
    29. ↑ Best v Samuel Fox & Co Ltd [1952] AC 716.
    30. ↑ Law Reform (Marital Consortium) Act 1984 (NSW) s3.
    31. ↑ Common law (Miscellaneous Actions) Act 1986 (Tas) s3.
    32. ↑ Law Reform (Miscellaneous Provisions) Act 1941 (WA) s3.
    33. ↑ Civil Law (Wrongs) Act 2002 (ACT) s 218.
    34. ↑ Barton v Armstrong [1973] UKPC 27, [1976] AC 104, Privy Council (on appeal from NSW).
    35. ↑ Rixon v Star City Pty Ltd [2001] NSWCA 265, NSW Court of Appeal.
    36. ↑ Balmain Ferry v Robertson [1906] HCA 83, (1906) 4 CLR 379, High Court.
    37. ↑ Bird v Jones [1845] EWHC J64, (1845) 7 QB 742; 115 ER 668.
    38. ↑ Waldrip v Ciaccia (Civil Dispute) [2015] ACAT 9, Civil & Administrative Tribunal (ACT).
    39. ↑ Collins v Wilcock (1984) 1 WLR 1172.
    40. ↑ Munro v Southern Dairies Ltd [1955] VicLawRp 60, [1995] VLR 332, Supreme Court (Vic).
    41. ↑ Stockwell v State of Victoria [2001] VSC 497, Supreme Court (Vic).
    42. ↑ Challen v The McLeod Country Golf Club [2004] QCA 358, Court of Appeal (Qld).
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