Tort law in Australia

{{Further|Australian legal system}}

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'.{{cite AustLII|HCA|73|1986|litigants=Cook v Cook|parallelcite=(1986) 162 CLR 376}} per Mason. Wilson, Deane and Dawson JJ.

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.{{Cite book |last=Vout |first=Paul T |title=Torts The Laws of Australia |publisher=Thomson Reuters (Professional) Australia Limited |year=2016 |isbn=9780455238487}} Specific differences include the 'salient features' framework used to determine a duty of care for negligence,{{cite AustLII|HCA|12|2010|litigants=Tabet v Gett|parallelcite=(2010) 240 CLR 537|courtname=High Court}}. and the lack of an intent element for the tort of trespass.{{cite AustLII|HCA|83|1957|litigants=Williams v Milotin|parallelcite=(1957) 97 CLR 465|courtname=High Court}}.

To the extent tort law is defined by Australia's nationally uniform common law, its tort regime is also nationally unified.{{NoteTag|Lipohar v The Queen (‘Lipohar’) (1999) 200 CLR 485}}{{cite book |last1=Boyle |first1=Liam |title=Bond Law Review |year=2015 |volume=27 |chapter=An Australian August Corpus: Why There is Only One Common Law in Australia |chapter-url=http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1473&context=blr |archive-url=https://web.archive.org/web/20170731080002/http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1473&context=blr |archive-date=31 July 2017}}{{Cite AustLII|source=HCA|num=25|year=1997|pinpoint=562–6|parallelcite=189 CLR 520|date=8 July 1997|litigants=Lange v ABC}} 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.See, e.g., {{cite Legislation AU|NSW|act|cla2002161|Civil Liability Act 2002}}; {{cite Legislation AU|Qld|act|cla2003161|Civil Liability Act 2003}}; {{cite Legislation AU|Tas|act|cla2002161|Civil Liability Act 2002}}; {{cite Legislation AU|WA|act|cla2002161|Civil Liability Act 2002}}.

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.{{cite book |author1=Gardiner, D |title=Outline of Torts |author2=McGlone, F |publisher=Butterworths |year=1998 |edition=2nd |page=33 |name-list-style=amp}} citing {{cite AustLII|HCA|37|1920|litigants=McGuire v Union Steamship Co of New Zealand Ltd|parallelcite=[http://www6.austlii.edu.au/au/cases/cth/HCA/1920/37.pdf (1920) 27 {{abbr|CLR|Commonwealth Law Reports}} 570] at 578-83}}.

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.{{cite web |author=Drabsch, T |year=2005 |title=No Fault Compensation |url=https://www.parliament.nsw.gov.au/researchpapers/Documents/no-fault-compensation/No%20Fault%20Comp%20and%20Index.pdf |access-date=25 May 2017 |work=Briefing Paper No 6 |publisher=Parliamentary Library, NSW}}.

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.{{cite news |date=2 March 2012 |title=Final report: no justification for tort reforms |publisher=Lawyers Weekly |agency=Lawyers Weekly |url=https://www.lawyersweekly.com.au/news/1554-final-report-no-justification-for-tort-reforms |access-date=30 July 2016}} 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,{{cite news |date=28 January 2005 |title=NSW slowest in catching murderers on the loose |work=The Sydney Morning Herald |url=https://www.smh.com.au/news/National/NSW-slowest-in-catching-murderers-on-the-loose/2005/01/27/1106415736064.html}}{{cite web |author=Spigelman J |author-link1=James Spigelman |year=2004 |title=Tort Law Reform in Australia |url=http://www.courtwise.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman_160704 |url-status=dead |archive-url=https://web.archive.org/web/20080808012316/http://www.courtwise.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman_160704 |archive-date=8 August 2008}} 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.{{cite journal |last1=McDonald |first1=Barbara |year=2005 |title=Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia |url=http://www.austlii.edu.au/au/journals/SydLRev/2005/22.html |journal=Sydney Law Review}} (2005) 27(3) Sydney Law Review 443. Retrieved 5 August 2014.

{{See also|Privacy in Australian law}}

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.{{cite AustLII|HCA|63|2001|litigants=Australian Broadcasting Corporation v Lenah Game Meats Pty Limited |parallelcite= (2001) 208 CLR 199; 185 ALR 1 |courtname=High Court}}.{{cite AustLII|HCA|63|2001|litigants=ABC v Lenah Game Meats Pty Ltd |pinpoint=[313-[336]}} per Callinan J. The court has also held that Victoria Park Racing v Taylor{{cite AustLII|HCA|45|1937|litigants=Victoria Park Racing & Recreation Grounds Co Ltd v Taylor |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1937/45.pdf (1937) 58 {{abbr|CLR|Commonwealth Law Reports}} 479] |courtname=High Court}}. did not inhibit the development of privacy law in Australia.

Puisne decisions entertaining the possibility of the tort have occurred in at least two states. One noteworthy decision was a District Court of Queensland award of damages for the invasion of privacy by Judge Skoien.{{cite AustLII|QDC|151|2003|litigants=Grosse v Purvis|courtname=District Court (Qld)}}. 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'{{cite AustLII|VSC|113|2004|litigants=Giller v Procopets|pinpoint=[188]|courtname=Supreme Court (Vic)}}. 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.{{cite book|author=Australian Law Reform Commission |chapter-url=http://www.alrc.gov.au/sites/default/files/pdfs/publications/summary_report_whole_pdf_.pdf |title=Serious Invasions of Privacy in the Digital Era – Final Report |url=http://www.austlii.edu.au/au/other/lawreform/ALRC/2014/123.pdf |chapter=Summary}} [2014] Australian Law Reform Commission 123. 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). 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.

{{See also|Defamation in Australia}}

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.

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.{{cite AustLII|HCA|15|2006|litigants=Harriton v Stephens |parallelcite=(2006) 226 CLR 52 |courtname=High Court}}.

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.{{cite AustLII|HCA|16|2006|litigants=Waller v James |parallelcite=(2006) 226 CLR 136 |courtname=High Court}}. Parents are able to pursue 'wrongful birth' claims if the child (disabled or not) is the outcome of a negligently performed sterilisation procedure.{{cite AustLII|HCA|38|2003|litigants=Cattanach v Melchior |parallelcite=(2003) 215 CLR 1 |courtname=High Court}}. However, since the Civil Liability Act, they cannot recover the costs of raising the child in New South Wales.{{cite Legislation AU|NSW|act|cla2002161|Civil Liability Act 2002|71}}.

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 journal|last=Graycar |first=Reg |url=http://www.austlii.edu.au/au/journals/UNSWLJ/2002/45.html |title=Public Liability: A Plea for Facts|journal=University of New South Wales Law Journal |year=2002 }} (2002) 25(3) University of New South Wales Law Journal 810. 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.{{cite Legislation AU|NSW|act|maca1999298|Motor Accidents Compensation Act 1999|8}} Offence of using uninsured motor vehicle on road.

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

Well-established torts

• Breach of public and statutory duties
• Public nuisance{{cite AustLII|VicLawRp|47|1952|litigants=Walsh v Ervin|parallelcite=[1952] VLR 361}}.
• Breach of statutory duties{{cite AustLII|HCA|45|1956|litigants=Mummery v Irvings Pty Ltd|parallelcite=(1956) 96 CLR 99|courtname=High Court}}.Groves v Wimborne [1898] 2 QB 402.
• Interferences with the judicial process{{Citation needed|date=May 2023}}
• Defamation
• Interference with employment and family relations
• Actions per quod servitium amisit (injuring an employee rendering them unable to perform services for their employer){{Citation needed|date=May 2023}}
• Loss of consortium of a spouseBest v Samuel Fox & Co Ltd [1952] AC 716. (abolished in New South Wales,{{cite Legislation AU|NSW|num_act|lrca1984n38354|Law Reform (Marital Consortium) Act 1984}} s3. Tasmania,{{cite Legislation AU|Tas|num_act|claa1986114o1986376|Common law (Miscellaneous Actions) Act 1986}} s3. Western Australia,{{cite Legislation AU|WA|num_act|lrpa29o1941450|Law Reform (Miscellaneous Provisions) Act 1941}} s3. and the Australian Capital Territory.{{cite Legislation AU|ACT|act|cla2002194|Civil Law (Wrongs) Act 2002|218}}.
• Intentional damage to economic interests
• Interference with contractual relations{{Citation needed|date=May 2023}}
• Conspiracy {{Citation needed|date=May 2023}}
• Intimidation{{Citation needed|date=May 2023}}
• Negligence
• Misrepresentation
• Deceit{{Citation needed|date=May 2023}}
• Innocent misrepresentation/negligent advice{{Citation needed|date=May 2023}}
• Defamation {{Citation needed|date=May 2023}}
• Injurious falsehood {{Citation needed|date=May 2023}}
• Passing off {{Citation needed|date=May 2023}}
• Trespass
• against the person – assault,{{cite BAILII|litigants=Barton v Armstrong|year=1973|court=UKPC|format=1|num=27|courtname=auto|juris=NSW|parallelcite=[1976] AC 104}}. battery,{{cite AustLII|NSWCA|265|2001|litigants=Rixon v Star City Pty Ltd|courtname=NSW Court of Appeal}}. and false imprisonment.{{cite AustLII|HCA|83|1906|litigants=Balmain Ferry v Robertson|parallelcite=[http://www6.austlii.edu.au/au/cases/cth/HCA/1906/83.pdf (1906) 4 {{abbr|CLR|Commonwealth Law Reports}} 379]|courtname=High Court}}.{{cite BAILII|court=EWHC|div=QB|year=1845|num=J64|litigants=Bird v Jones|parallelcite=(1845) 7 QB 742; 115 ER 668}}.
• against chattels,{{cite AustLII|ACAT|9|2015|litigants=Waldrip v Ciaccia (Civil Dispute)|courtname=Civil & Administrative Tribunal (ACT)}}. (personal property)
• to landCollins v Wilcock (1984) 1 WLR 1172.
• Occupation or possession of land
• Private nuisance;{{cite AustLII|VicLawRp|60|1955|litigants=Munro v Southern Dairies Ltd|parallelcite=[1995] VLR 332|courtname=Supreme Court (Vic)}}.{{cite AustLII|VSC|497|2001|litigants=Stockwell v State of Victoria|courtname=Supreme Court (Vic)}}.{{cite AustLII|QCA|358|2004|litigants=Challen v The McLeod Country Golf Club|courtname=Court of Appeal (Qld)}}.
• Cattle/livestock trespass {{Citation needed|date=May 2023}}
• Liability for animals (scienter){{Citation needed|date=May 2023}}

Torts where the availability is not certain

• Invasion of privacy {{Citation needed|date=May 2023}}

Defunct torts

• Loss of consortium {{Citation needed|date=May 2023}}

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{{Oceania topic|Tort law in|state=collapsed}}

{{DEFAULTSORT:Tort Law in Australia}}

Category:Law of Australia

Category:Tort law