Tort law in Australia


Tort law in Australia consists of both common law and, to a lesser extent, legislation. A tort is a civil wrong, other than a breach of contract. Torts may be sued upon by private individuals against other 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 statutes 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, where that has proven necessary.
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 states' Civil Liabilities Acts. 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.

Differences to UK tort law

An example of statutory modification of torts is the various Limitation of Actions Acts, which prescribe time limits within which litigation must be commenced, and extinguish the cause of action after the period lapses. The rationale of limitation periods was elucidated by McHugh J:
As a general rule, the limitation period on property damage cases is six years in all jurisdictions; the limitation period on 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.

Elements of various torts

Invasion of privacy">Privacy in Australian law">Invasion of privacy

In the case ABC v Lenah Games Meats in 2001, the High Court left open the possibility for development of a tort of invasion of privacy. The Court stated it did not want to decide the matter at that time and only one member, Justice Callinan, gave any indication such a tort may be acceptable. The Court held that Victoria Park Racing v Taylor did not inhibit the development of privacy law in Australia.
Since ABC v Lenah Game Meats, the question of whether invasion of privacy is 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, 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, 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'
Both cases were settled out of court and, as a result, did 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 the Commonwealth 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. 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.

Defamation

Since 2005, all Australian states have adopted uniform defamation laws.
There are three elements that must be satisfied in order to establish a claim for defamation.
Firstly, the matter complained must contain a defamatory meaning. This is capable of entailing more than one meaning and can include; an article, advertisement or report communicated via an electronic or hard-written document, a gesture or oral utterance. The matter in question may bear a direct or innuendo meaning. The latter ought to be satisfied by virtue of an objective test. Simply put, what a witness perceived to be true is irrelevant. Instead, liability only extends to defamatory imputations which a reasonable person might draw. Liability will not extend where a defamatory imputation was drawn unreasonably.
A matter will only be actionable on the condition that the defamatory imputation can be established as referring to a particular individual. In the event the plaintiff's name is omitted, reference to the plaintiff's characteristics, address and occupation can be used to bring an action against the defendant. It is a question of fact to determine whether identification has been established. Therefore, it is a question of law 'to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff'.
Finally, the plaintiff must prove that the matter was published by the defendant or in circumstances in which the defendant was responsible for the publication.
New South Wales: Defamation Act 2005.
Victoria: Defamation Act 2005.
South Australia: Defamation Act 2005.
Northern Territory: Defamation Act 2006.
Western Australia: Defamation Act 2005.
Tasmania: Defamation Act 2005.
Queensland: Defamation Act 2005.
Australian Capital Territory: Civil Law Act 2002''.
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. Prior to the legislative changes, a number of states 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 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 negligence cannot claim damages. Parents are able to pursue 'wrongful birth' claims if the child is the outcome of a negligently performed sterilisation procedure. However, since the 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.

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 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. 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 in Tasmania, Victoria and the Northern Territory.

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.