Law of torts [Fifth edition.] 9780409332049, 0409332046, 9780409332056, 0409332054

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Law of Torts Fifth Edition

R P BALKIN BA, LLB, PhD (WITS) Advocate of the Supreme Court of South Africa Assistant Secretary-General/Director, Legal Affairs and External Relations Division, International Maritime Organization

J L R DAVIS BA, LLB (NZ), LLM (Cantab) Barrister and Solicitor of the High Court of New Zealand Professor Emeritus of the Australian National University

LexisNexis Butterworths Australia 2013

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Other Authors/Contributors: Dewey Number:

Balkin, R P (Rosalie P). Law of Torts. 5th ed. 9780409332049 (pbk). 9780409332056 (hbk). 9780409332063 (ebk). Includes index. Torts — Australia. Torts — New Zealand. Davis, J L R. 346.9403.

© 2013 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 1991; Second edition, 1996; Third edition, 2004 (Reprinted 2005, 2006 and 2007); Fourth edition 2009 (Reprinted 2011). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Plantin and GillSans. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface to the Fifth Edition Our aim in preparing this edition remains as it has been in previous editions — to present a comprehensive statement of the law of torts in Australia and New Zealand. In putting forward that statement, we have sought not only to describe the law as it currently stands but also to indicate, where appropriate, those aspects of the law which we consider to be in need of reform, and to suggest possible paths of reform. The only major change to the law since the previous edition has been the introduction of the Australian Consumer Law. This has brought some welcome uniformity to the law relating to the proscription on misleading or deceptive conduct in trade or commerce. No longer need we refer to both the Trade Practices Act 1974 (Cth) s 52 and the equivalent provision in the Fair Trading legislation of the Australian states and territories and in the Fair Trading Act 1986 (NZ) s 9. For reasons that are explained in Chapter 22, the sources of that statutory proscription are now confined to the Australian Consumer Law s 18 and s 9 of the above New Zealand statute. Despite the relative paucity of changes to the law that have taken effect since the previous edition, there are at least two areas in which change has been proposed for the near future. We noted in Chapter 17 of the fourth edition that the Australian Law Reform Commission had proposed the introduction of a statutory cause of action for a serious invasion of privacy. It is to be regretted that this remains no more than a proposal, but we can hope that the recommendation will have borne fruit before the next edition is prepared. The second proposed change is the introduction by the Commonwealth Government of a National Injury Insurance Scheme. On 29 November 2012, the Minister for Disability Reform, the Hon Jenny Macklin MP, introduced into the federal parliament the National Disability Insurance Scheme Bill 2012, which establishes the framework for that scheme. That scheme seeks to

benefit those with disabilities, whatever their cause, and does not, therefore, seek to replace any aspect of the law of torts. However, the same cannot be said for the National Injury Insurance Scheme, which the federal government has promised to introduce into the current parliament. It is designed to cover people’s lifetime care and support needs if they have acquired a catastrophic injury from any accident. Although such accidents may occur without fault being attributed to any person, it is clear that this latter scheme will, to at least some extent, provide compensation for those who currently must rely on the law of torts. We hope that this scheme will have reduced reliance on the law of torts to some extent by the time we come to prepare the next edition. As with all previous editions, we are indebted to many people in the preparation of this edition. We wish particularly to thank Mr Kevin Touhey in London and Mr Stephen Argument in Canberra for working marvels in providing us with information on any relevant changes to the law, and Mrs Dany Broderick-Bunn for invaluable assistance in preparing the manuscript. We are also deeply indebted to Ms Jocelyn Holmes, of LexisNexis Butterworths in Sydney, for providing a wealth of support throughout the months that it has taken to prepare this edition and to Ms Felicia Gardner, the editor for this edition, with whom it has been a pleasure for both of us to see the whole project to conclusion. We completed the bulk of the preparation of the manuscript for this edition by early October 2012, and we have sought to state the law as at that date. We have been able to add occasional footnote references to judicial and statutory developments occurring thereafter. Rosalie Balkin London Jim Davis Canberra December 2012

Preface to the First Edition Our purpose in writing this book has been to present the principles of the law of torts as they are currently applied by the courts in Australia and New Zealand. In so far as we have consciously had in mind a particular audience, we have tried to provide sufficient detail and analysis to make the work suitable both for university students and legal practitioners. Since we have sought to state the law in New Zealand as well as in Australia, we have dealt first with the torts derived from trespass, which continue to be relevant on both sides of the Tasman, before turning to a consideration of the tort of negligence. In our discussion of the latter tort, we have devoted a separate Chapter to the circumstances in which one may recover the purely economic loss suffered by reason of another’s negligence. This is a topic which, like the torts derived from trespass, is of importance in both countries. We have included a Chapter on the protection of trading and financial interests given by s 52 of the Trade Practices Act (and the equivalents of that section in the legislation of the Australian states and of New Zealand) together with the remedial provisions of that legislation. It is obvious that s 52 does not create a new tort, but the statutory proscriptions of misleading or deceptive conduct have effectively replaced the torts of passing off and injurious falsehood, and have rendered the tort of deceit, as well as liability for negligent misrepresentation, of much less importance than either were before the enactment of these provisions. The genesis of this book was a suggestion from the publishers to prepare an Australian edition of Street on Torts. Developments, both legislative and judicial, in the two countries have resulted in such a divergence between the law in England and in Australia that the task no longer seemed feasible. As a consequence we have used Harry Street’s work primarily as a guide, although we have retained several segments where the law is still similar. In addition,

we are grateful to Margaret Brazier, who was responsible for the eighth edition of Street, for letting us have the page proofs of her work before publication. We were therefore able to make use of one or two passages she had prepared covering relevant English authorities. The attention we have given to New Zealand law is partly a consequence of growing awareness of the need for cooperation on both sides of the Tasman. However, we have not confined ourselves to Australian and New Zealand law, but turned, as occasion required, to Canada and the United States as well as to England for illustrations, or to suggest a path for the future development of the law. The persons who assisted in the production of this book, particularly in providing secretarial and research assistance, are too numerous to mention, though our special thanks are due to Peter Hohnen, a partner in the Canberra firm of Macphillamy, Cummins and Gibson, for reading and advising on the first draft of the chapters on defamation. The text was completed by the end of 1989, and we have sought to state the law as at that time. However, we incorporated references to a number of developments which came to our notice by the time the book was at galley proof stage. It is unfortunate that the recent decision of the House of Lords in Murphy v Brentwood District Council [1990] 3 WLR 414; [1990] 2 All ER 908 appeared too late to be considered in the text. R P Balkin J L R Davis Canberra August 1990

Table of Cases References are to paragraphs A A v B HC Palmerston North, CP 9/98 .… 8.24 — v Bottrill [2003] 1 AC 449; [2003] 2 NZLR 721 .… 2.5, 27.11 — v Hoare [2008] 1 AC 844; 2 All ER 1 .… 28.14 — v M [1991] 3 NZLR 228 .… 3.14, 27.11 — v New South Wales (2007) 230 CLR 500; 233 ALR 584 .… 25.8, 25.12, 25.13, 25.14 — v Roman Catholic Archdiocese of Wellington [2007] 1 NZLR 536 .… 7.23 — v — [2008] 3 NZLR 289 .… 7.23, 26.54 A (a minor) and B (a minor) by C (their mother) v A Health and Social Services Trust [2010] NIQB 108 .… 7.60 A (children) (conjoined twins: surgical separation), Re [2001] Fam 147; [2000] 4 All ER 961 .… 6.9, 6.21 A Abrahams and Sons Pty Ltd v Commr for Railways [1958] SR (NSW) 134 .… 4.59 A Local Authority v Ma, Sa, Na [2005] EWHC 2942 .… 6.9 A R Griffiths & Sons Pty Ltd v Richards [2000] 1 Qd R 116 .… 29.40 A/S Bannockburn v Williams (1912) 12 SR (NSW) 665 .… 26.59 A’Court v Cross (1825) 3 Bing 329; 130 ER 540 .… 28.2 AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591 .… 11.52 Aas v Superior Court 12 P 3d 1125 (2000) .… 13.66 AB v Leeds Teaching Hospital NHS Trust [2003] EWHC 1034 .… 4.16 Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354 .… 8.36 Abbott v Arcus (1948) 50 WALR 41 .… 14.11 — v NSW Monte de Piete Co (1904) 4 SR (NSW) 336 .… 6.24 — v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80–138 .… 18.14 ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 .… 5.22 Abela v Giew (1965) 65 SR (NSW) 485 .… 16.12, 16.20 Abrams (J & JC) Ltd v Ancliffe [1978] 2 NZLR 420 .… 13.34, 23.19 Abrath v NE Railway Co (1883) 11 QBD 440 .… 25.10, 25.11, 25.14 — v — (1886) 11 App Cas 247 .… 25.10

Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 59 ALR 211 .… 22.19, 22.24, 22.25 AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181 .… 6.9 Accident Compensation Corporation v D [2008] NZCA 576 .… 12.45 Acker v Kerr (1973) 42 DLR (3d) 514 .… 15.5, 15.10 Ackland v Commonwealth (2007) Aust Torts Reports 81–916 .… 10.7 ACOA v Commonwealth (1979) 26 ALR 497 .… 27.51 Acrecrest Ltd v WS Hattrell (1979) 252 Estates Gazette 1107 .… 7.33 Acrecrest Ltd v WS Hattrell [1983] QB 260; 1 All ER 17 .… 7.33 ACT v Crowley [2012] ACTCA 52 .… 7.30 Acton Corporation v Morris [1953] 2 All ER 932 .… 5.1 Adam v Ward [1917] AC 309 .… 19.38, 19.44, 19.51, 19.56 Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 .… 28.19 — v Kennedy (2000) 49 NSWLR 78 .… 1.9, 6.42 — v Mayor of Brunswick (1894) 20 VLR 455 .… 5.15 Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 .… 8.17, 29.16 Adastra Aviation Ltd v Airparts (NZ) Ltd [1964] NZLR 393 .… 29.32 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 .… 7.30, 8.31, 9.6 Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 .… 9.15 Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1941] ALR 212 .… 8.40 Adler v Dickson [1955] 1 QB 158; [1954] 3 All ER 397 .… 10.23 Administration of Papua and New Guinea v Leahy (1961) 105 CLR 6 .… 7.35 Admiralty Commissioners v SS Amerika [1917] AC 38 .… 11.33, 20.12, 24.4 — v SS Volute [1922] 1 AC 129 .… 9.6, 10.6 Adour Holdings Pty Ltd v Commonwealth Bank (1991) ATPR 41–147 .… 22.26 Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 77 ALR 615 .… 17.16 Advanced Technology Structures Ltd v Cray Valley Products Ltd [1993] BCLC 723 .… 25.41 Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 .… 19.4, 19.9 Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37 .… 22.19 AFA Airconditioning Pty Ltd v Mendrecki (2008) 101 SASR 381 .… 16.6, 26.34 Affutu-Nartoy v Clarke (1984) The Times, 9 February .… 6.6 A-G v Body Corporate 200200 [2007] 1 NZLR 95 .… 7.14 — v Carter [2003] 3 NZLR 160 .… 13.26 — v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 .… 26.25, 26.32 — v Lane Cove MC [1976] 2 NSWLR 1 .… 14.46

— v Leason [2011] NZHC 1053 .… 6.21 — v Niania [1994] 3 NZLR 106 .… 3.28, 3.29, 3.37 — v Prince [1998] 1 NZLR 262 .… 7.14 — v PYA Quarries Ltd [1957] 2 QB 169; 1 All ER 894 .… 14.54 — v Tomline (1880) 14 Ch D 58 .… 5.18 — v Valle-Jones [1935] 2 KB 209 .… 20.19 — v Whangarei City Council [1987] 2 NZLR 150 .… 14.18, 14.36 — v Wright [2003] NZCA 48 .… 7.14 A-G (BC) v Couillard (1984) 11 DLR (4th) 567 .… 14.11 A-G (NSW) v Holy Apostolic & Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293 .… 23.8 A-G (NSW) v Holy Apostolic & Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 18 NSWLR 295 .… 23.8 — v Perpetual Trustee Co Ltd (1952) 85 CLR 237 .… 20.12, 20.13, 20.16, 20.17, 20.19, 21.22, 26.58, 29.6 — v — [1955] AC 457; 1 All ER 846 .… 20.12, 20.13, 20.16, 24.11 A-G (NZ) v Birkenhead Borough Council [1968] NZLR 383 .… 16.15 — v Niania [1994] 3 NZLR 106 .… 27.7 — v Wilson & Horton Ltd [1973] 2 NZLR 238 .… 20.13, 20.16, 20.19 A-G (Vic) v City of Brighton [1964] VR 59 .… 29.13 AG of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 637; [1979] 3 All ER 129 .… 3.37 A-G’s Reference (No 2 of 1983) [1984] QB 456; 1 All ER 988 .… 6.17, 6.18 Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 .… 7.15, 7.21, 10.26 Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; 218 ALR 677 .… 12.41 Ahrens Engineering Pty Ltd v Leroy Palmer & Assocs (2010) 106 SASR 160 .… 29.33 Aiger v Coffs Harbour CC [2005] NSWCA 424 .… 8.10 Aiken v Kingborough Corporation (1939) 62 CLR 179 .… 7.39 Ainsworth v Burden (2003) 56 NSWLR 620 .… 18.20, 19.56 — v — [2006] NSWCA 199 .… 19.72 Air Link Pty Ltd v Paterson (2005) 223 CLR 283; 218 ALR 700 .… 12.41, 12.41 — v — (2009) 75 NSWLR 354 .… 12.42 Airedale NHS Trust v Bland [1993] AC 789; 1 All ER 821 .… 6.8, 6.22 Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 .… 26.10 Aitken v Bedwell (1827) Mood & M 68 .… 3.34 — v Gardiner (1956) 4 DLR (2d) 119 .… 4.40 Aitken Agencies Ltd v Richardson [1967] NZLR 65 .… 4.22

Akenzua v Secretary of State for the Home Department [2003] 1 All ER 35 .… 25.31 Akers v P (1986) 42 SASR 30 .… 10.30 Aktas v Westpac Banking Corp Ltd (2010) 241 CLR 79; 268 ALR 409 .… 19.48 Al Jedda v Secretary of State for Defence [2009] EWHC 397 .… 6.55 Al Saudi Banque v Clarke Pixley [1990] Ch 313; [1989] 3 All ER 361 .… 13.28 Alabaster v Harness [1895] 1 QB 339 .… 25.34, 25.40 Albert v Lavin [1982] AC 546; 3 All ER 878 .… 6.37 Albrecht v Patterson (1886) 12 VLR 597 .… 27.6 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 .… 26.7, 26.29 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; [1991] 4 All ER 904 .… 7.43, 7.47, 7.48, 7.51 Aldred’s case (1610) 9 Co Rep 57b; 77 ER 816 .… 14.13 Aldridge v Van Patter [1952] 4 DLR 93 .… 14.17 Aldworth v Stewart (1866) 4 F & F 957 .… 6.34 Aleksoski v State Rail Authority (NSW) (2000) 30 MVR 403 .… 15.20 Aleksovski v R [1979] WAR 1 .… 6.41 Alex Kay Pty Ltd v Fife (1966) 9 FLR 246 .… 29.34 Alexander v Clegg [2004] 3 NZLR 586 .… 19.44 — v Jenkins [1892] 1 QB 797 .… 18.4 — v North Eastern Rly Co (1865) 6 B & s 340; 122 ER 1221 .… 19.3 — v Southey (1821) 5 B & Ald 247 .… 4.1, 4.31 Alexandrou v Oxford [1993] 4 All ER 328 .… 7.25, 7.30 Alford v Magee (1952) 85 CLR 437 .… 10.5, 10.6 — v National Coal Board [1952] 1 All ER 754 .… 16.33 Ali v City of Bradford Metropolitan District Council [2011] 3 All ER 348 .… 16.22 Allan v Commonwealth (1980) 24 SASR 581 .… 11.46 — v Dunn (1857) 1 H & N 572 .… 4.60 — v New Mount Sinai Hospital (1980) 109 DLR (3d) 634 .… 2.23, 3.7, 3.14 Allbutt v General Council of Medical Education (1889) 23 QBD 400 .… 19.41 Allen v Flood [1898] AC 1 .… 20.5, 21.5, 21.24, 21.44, 21.49 — v Gulf Oil Refining Ltd [1981] AC 1001; 1 All ER 353 .… 14.25, 14.46 — v Western Metals Resources Ltd [2001] TASSC 19 .… 16.6 — v Wright (1838) 8 C & P 522 .… 6.39 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 .… 9.6 Allied Finance & Investment Ltd v Haddow & Co [1983] NZLR 22 .… 13.22

Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907 .… 13.38 Allison v KPMG Peat Marwick [2000] 1 NZLR 560 .… 13.27, 29.28 Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 58 FCR 26; 130 ALR 469 .… 21.6 Almeida v Universal Dye Works Pty Ltd (2000) 103 IR 433 .… 16.18 Almeroth v Chivers & Sons Ltd [1948] 1 All ER 53 .… 14.45 Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85 .… 7.57 Alsop v Lidgerwood (1916) 22 Arg LR (CN) 13 .… 15.6 Altimarloch Joint Venture Ltd v Moorhouse BLE Civ-2005–406–000091, 3 July 2008 .… 7.14 Altman v Denning [1995] 2 VR 1 .… 11.16 Amaca Pty Ltd v Booth (2011) 283 ALR 461 .… 9.4 — v Ellis (2010) 240 CLR 111; 263 ALR 576 .… 9.4 — v Hannell [2007] WASCA 158 .… 9.4 — v New South Wales (2003) 199 ALR 596 .… 29.34 — v — [2004] NSWCA 124 .… 7.36 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 .… 19.44 Amaltal Corp Ltd v Maruha Corp [2007] 3 NZLR 192 .… 23.32 Ambergate Ry Co v Midland Ry Co (1853) 2 E & B 793; 118 ER 964 .… 6.28 Ambros v Accident Compensation Corp [2010] NZHC 485 .… 8.35 Ambulance Service of NSW v Worley [2006] NSWCA 102 .… 8.27 American Bank & Trust Co v Federal Reserve Bank 256 US 350 (1921) .… 21.58 American Cyanamid Co v Ethicon Ltd [1975] AC 396; 1 All ER 504 .… 21.23 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2009) 74 NSWLR 612 .… 19.32 Amoretty v City of Melbourne Bank (1887) 13 VLR 431 .… 4.39, 4.40 Amphi-Theatres Inc v Portland Meadows 198 P 2d 847 (1948) .… 14.12 Ancell v McDermott [1993] 4 All ER 355 .… 7.30 Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 38 Build LR 82 .… 5.9, 5.20 Anchor Products Ltd v Hedges (1966) 115 CLR 493 .… 8.41, 8.42 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 .… 16.34, 29.34 Andary v Burford (1994) Aust Torts Reports 81–246 .… 27.12 Anderson v Blazeley [1966] Tas SR 281 .… 24.4 — v Ginn (No 2) [1933] NZLR 1073 .… 19.48 — v Gorrie [1895] 1 QB 668 .… 6.51, 19.33 — v Liddell (1968) 117 CLR 36 .… 6.48 — v MacKellar County Council (1968) 69 SR (NSW) 444 .… 16.13, 16.22, 16.25

— v Mirror Newspapers Ltd (1986) 6 NSWLR 99 .… 18.8 — v — (No 2) (1986) 5 NSWLR 735 .… 19.80 — v Smith (1990) 101 FLR 34 .… 11.42, 24.16, 27.8 Anderson (W B) & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850 .… 23.36 Anderson Group Pty Ltd v Tynan Motors Pty Ltd (The) (2006) 65 NSWLR 400 .… 4.7 Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 .… 14.11, 14.14 — v — [1938] Ch 1; [1937] 3 All ER 255 .… 14.9, 14.26, 14.28, 14.49 Andrewartha v Andrewartha (1987) 44 SASR 1 .… 24.5 Andrews v Grand & Toy Alberta Ltd (1978) 83 DLR (3d) 452 .… 11.31 — v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 .… 18.7, 19.81 — v Marris (1841) 1 QB 3 .… 6.47 — v The Nominal Defendant (1968) 70 SR (NSW) 419 .… 4.7 — v Williams [1967] VR 831 .… 7.48 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 .… 19.48 Andriolo v G & G Construction Pty Ltd (1989) Aust Torts Reports 80–235 .… 29.41 Anglo-Newfoundland Development Co Ltd v Pacific Steam Navigation Co [1924] AC 406 .… 8.35 Anglo-Scottish Beet Sugar Corp v Spalding UDC [1937] 2 KB 607; 3 All ER 335 .… 23.35 Anheuser-Busch Inc v Budweiser Budvar National Corp [2003] 1 NZLR 472 .… 22.18 — v Castlebrae Pty Ltd (1991) 32 FCR 63; 23 IPR 54 .… 22.21 Anikin v Sierra (2004) 211 ALR 621; 79 ALJR 452 .… 10.16, 10.17 Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 .… 14.33 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 25 .… 7.45, 7.48 — v — (2002) 211 CLR 317; 191 ALR 449 .… 7.44, 7.45 Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 .… 7.8, 7.9, 7.11, 7.14, 7.31, 7.33, 7.34, 7.35, 8.34 Anon (1703) 6 Mod 45; 87 ER 808 .… 16.2 Ansell v Thomas [1974] Crim LR 31 .… 3.34 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 .… 21.8, 21.18, 21.25, 21.33, 21.35, 21.51, 21.60 — v — (No 2) [1991] 2 VR 636 .… 21.21, 21.41, 21.49 Ansin v R & D Evans Ltd [1982] 1 NZLR 184 .… 26.17 Ansley v Penn (HC(NZ), 28 August 1998, Fraser and Pankhurst JJ, unreported) .… 18.3 Anthony v Haney (1832) 8 Bing 186 .… 6.23, 6.24 Antonovich v WA Newspapers Ltd [1960] WAR 176 .… 19.48 Antonow v Leane (1989) 53 SASR 60 .… 10.13 ANZ Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 .… 4.16, 4.38

Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 .… 23.11, 22.23 Apley Estates Co v De Bernales [1946] 2 All ER 338 .… 28.45 — v — [1947] Ch 217; 1 All ER .… 28.45 APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315 .… 19.12, 19.23 Appleby v Percy (1874) LR 9 CP 647 .… 15.15 Application for Criminal Injuries Compensation, Re (1991) 103 FLR 297 .… 3.14 Application of Justice Health; re a Patient [2011] NSWSC 432 .… 6.10 APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 .… 7.48 Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81–364 .… 18.7, 18.10 Arcadi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR 40–473 .… 22.51 Archer v Brown [1985] QB 401; [1984] 2 All ER 267 .… 27.7, 27.11 Arcrie Investments Pty Ltd v Ductline Pty Ltd (1992) ATPR 41–180 .… 22.24 Arenson v Arenson [1977] AC 405; [1975] 3 All ER 901 .… 6.51 Argent Pty Ltd v Huxley [1971] Qd R 331 .… 20.13 Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112; 94 ALR 719 .… 22.8, 22.26, 23.39 Armagas Ltd v Mundogas SA [1986] AC 717; 2 All ER 385 .… 26.15 Armellin v Ljubic [2009] ACTCA 22 .… 2.16 Armory v Delamirie (1722) 1 Stra 505 .… 4.4, 4.12, 4.14 Armstrong and State Rivers and Water Supply Commn, Re [1952] VLR 187 .… 9.13 Armstrong v Strain [1952] 1 KB 232; 1 All ER 139 .… 23.35 Armytage v Commr for Government Transport [1972] 1 NSWLR 331 .… 27.36 Arneil v Paterson [1931] AC 560 .… 29.29 Arnett v Roper (SC(WA), Steytler J, 26 March 1999, unreported) .… 18.21 Arpad (The) [1934] P 189 .… 4.30, 4.40 Arthur J s Hall & Co v Simons [2002] 1 AC 615; [2000] 3 All ER 673 .… 7.57 Artistic Upholstery Ltd v Art Forma (Furniture) Ltd [1999] 4 All ER 277 .… 29.12 Asamera Oil Corp Ltd v Sea Oil & General Corp (1978) 89 DLR (3d) 1 (SCC) .… 4.63 Ash v Dickie [1936] Ch 655; 2 All ER 71 .… 4.38 — v Lady Ash (1695) Comb 357 .… 6.31 Ashby v Tolhurst [1937] 2 KB 242; 2 All ER 837 .… 4.18 — v White (1703) 2 Ld Raym 938; 92 ER 126 .… 16.2, 16.11, 27.3, 27.5 Ashdown v Samuel Williams & Sons Ltd [1957] 1 QB 409; 1 All ER 35 .… 10.24 Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975; 3 All ER 573 .… 6.15 Ashrafi Persian Trading Co Pty Ltd v Ashrafina (2001) Aust Torts Reports 81–636 .… 7.19, 7.30

ASIC v Healey [2010] FCA 717 .… 8.24 Asman v MacLurcan (1985) 3 BPR 9592 .… 14.15 Aspro Travel Ltd v Owners Abroad Group plc [1995] 4 All ER 728 .… 18.7 Assaf v Kostrevski (CA(NSW), 30 September 1998, BC9805010, unreported) .… 7.40 Assheton v Merrett [1928] SASR 11 .… 25.11, 25.13, 25.15 Associated Alloys Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588; 171 ALR 568 .… 4.10 Associated Midland Corporation Ltd v The Bank of New South Wales (1984) 51 ALR 641 .… 4.16 Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737 .… 19.77 Association of Quality Child Care Centres of NSW v Manefield [2012] NSWCA 123 .… 19.48, 19.50, 19.81 Astaire v Camping [1965] 3 All ER 666 .… 18.15 Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155 .… 10.10, 10.15, 10.16, 10.18, 13.42, 27.39 Atkinson v Newcastle & Gateshead Waterworks Co (1871) LR 6 Ex 404 .… 16.11 — v — (1877) 2 Ex D 441 .… 16.3, 16.11, 16.13, 16.25 Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129 .… 11.8 Attard v James Legal Pty Ltd [2010] NSWCA 311 .… 7.57 Attersoll v Stevens (1808) 1 Taunt 183 .… 4.48, 5.11 Attia v British Gas plc [1988] QB 304; [1987] 3 All ER 455 .… 7.55 Attwood v Chapman [1914] 3 KB 275 .… 19.33 Atwell v Michael Perry & Co [1998] 4 All ER 65 .… 7.57 Atwood v Ernest (1853) 13 CB 881 .… 4.34 Au v Keelty [2007] FCA 77 .… 4.58 Aubrey v Carter [1962] WAR 51 .… 8.15 Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 .… 19.83 Auckland Bus Co Ltd v New Lynn Borough [1965] NZLR 542 .… 28.46 Auckland Electric Power Board v Electricity Corporation of NZ Ltd [1993] 3 NZLR 53 .… 16.15 Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 .… 6.47 Auckland Workingmen’s Club and Mechanics Institute v Rennie [1976] 1 NZLR 278 .… 26.43 Austin v Dowling (1870) LR 5 CP 534 .… 3.34, 3.36 — v Mirror Newspapers Ltd [1986] AC 299 .… 19.59 — v Saxby [2007] EWCA Civ 989 .… 6.37 — v Southwark London Borough Council [2011] AC 355; [2010] 4 All ER 16 .… 5.6 Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136; 173 ALR 619 .… 29.34 Australia and New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662; 78 ALR 157 .… 1.4 Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 .… 4.55

Australian and Overseas Telecommunications Corp Ltd v McAuslan (1993) 47 FCR 492 .… 8.48 Australian Beauty Trade Suppliers Ltd v Conference & Exhibition Organisers Pty Ltd (1991) 29 FCR 68; 99 ALR 474 .… 22.5 Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 .… 13.25, 29.32 Australian Broadcasting Corp v Comalco Ltd (1986) 12 FCR 510 .… 18.10, 18.19, 19.39, 19.45 — v Hanson (CA(Qld), 28 September 1998, BC 9805224, unreported) .… 18.4, 19.83 — v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 .… 17.4 — v McBride (2001) 53 NSWLR 430 .… 19.77 — v O’Neill (2006) 227 CLR 57; 229 ALR 457 .… 19.83, 27.51 — v Obeid (2006) 66 NSWLR 605 .… 18.10 Australian Capital Territory v Badcock (1999) 169 ALR 585 .… 10.16 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 .… 21.23 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512 .… 6.49 Australian Consolidated Press Ltd v Bond (1984) 56 ACTR 14 .… 18.20 — v Uren (1966) 117 CLR 185 .… 19.82, 27.10 — v — [1969] 1 AC 590; [1967] 3 All ER 523 .… 19.82, 27.10 Australian Development Corp v Allco Steel Corp [1999] NSWSC 736 .… 4.38 Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623 .… 29.8 Australian Guarantee Corp Ltd v Commissioners of the State Bank of Victoria (1989) Aust Torts Reports 80–229 .… 4.16 Australian Knitting Mills Ltd v Grant [1936] AC 85 .… 7.16 Australian Liquor, Hospitality & Miscellaneous Workers Union v Mulligan (1996) 15 WAR 385 .… 18.13 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 .… 26.4 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 .… 4.26 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615 .… 7.37, 7.38, 7.39, 7.40, 26.34, 26.38 Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375 .… 10.9 Australian Telecommunications Commn v Parsons (1985) 59 ALR 535 .… 11.42, 11.43, 24.4 Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 .… 7.35, 27.7 Avram v Gusakoski (2006) 31 WAR 400 .… 10.17, 10.28 AVX Ltd v EGM Solders Ltd, The Times, 7 July 1982 .… 4.32 AWA Ltd v Daniels (1992) 7 ACSR 759 .… 10.14, 10.16, 13.42, 22.36, 23.33, 27.40, 29.32 — v — (1995) 37 NSWLR 438 .… 10.14, 10.16, 22.36, 23.33, 29.32

Awa v Independent News Auckland Ltd [1997] 3 NZLR 590 .… 18.4, 19.26 Awaroa Holdings Ltd v Commercial Securities & Finance Ltd [1976] 1 NZLR 19 .… 23.18, 23.35, 23.38 Axiak v Ingram (2012) 62 MVR 59; [2012] NSWCA 311 .… 10.17 Axiak v Pezzano (2002) 35 MVR 424 .… 11.46 Azzopardi v Bois [1968] VR 183 .… 10.8 — v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 .… 8.38 B B v Attorney-General [2004] NZLR 145 .… 7.33 — v Islington Health Authority [1991] 1 QB 638; 1 All ER 825 .… 7.16 B (a minor), Re [1988] AC 199; [1987] 2 All ER 206 .… 6.9 B (adult: refusal of medical treatment), Re [2002] 2 All ER 449 .… 6.8, 6.13 B(KL) v British Columbia (2003) 230 DLR (4th) 513 .… 26.55 B(M) v British Columbia (2003) 230 DLR (4th) 567 .… 26.55 B R Gamer (Investments) Pty Ltd v Gamer (1993) ATPR 41–200 .… 22.19 B, Re [1981] 1 WLR 1421 .… 6.9 Baar v Snowy Mountains Hydro-Electric Authority (1970) 92 WN (NSW) 472 .… 7.5 Babcock v Carr (1981) 127 DLR (3d) 77 .… 21.19 Bacardi-Martini Beverages Ltd v Thomas Hardy Packaging Ltd [2002] 1 Lloyd’s Rep 62 .… 13.5 Backwell v AAA [1997] 1 VR 182 .… 27.11 Baddeley v Earl Granville (1887) 10 QBD 423 .… 16.33 Badkin v Powell (1776) 2 Cowp 476 .… 4.48 Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21 .… 19.40, 27.30 Baggermaatschappij Boz & Kalis BV (t/as Westham Dredging Co) v Australian Shipping Commn (1980) 30 ALR 387 .… 8.8, 8.32 Bahner v Marwest Hotel Co Ltd (1970) 6 DLR (3d) 322 .… 3.31, 3.35, 3.37 Bailey v Bank of Australasia (1906) 6 SR (NSW) 686 .… 1.3 Bain v Altoft [1967] Qd R 32 .… 6.4, 6.11 Baird v Police (SC(SA), King AJ, 11 August 1997, BC9704130, unreported) .… 6.6 Baker v Barclays Bank Ltd [1955] 2 All ER 571 .… 4.34 — v Bolton (1808) 1 Camp 493; 170 ER 1033 .… 11.33, 13.49, 24.4 — v Carrick [1894] 1 QB 838 .… 19.57 — v E Longhurst & Sons Ltd [1933] 2 KB 461 .… 8.12 — v Market Harborough Industrial Co-operative Soc Ltd [1953] 1 WLR 1472 .… 8.47 — v Pleasant (1989) 89 NSR (2d) 301 .… 24.3 — v Quantum Clothing Group Ltd [2011] 4 All ER 223 .… 8.6, 8.34

— v Snell [1908] 2 KB 825 .… 15.15 — v T E Hopkins & Son Ltd [1958] 3 All ER 147 .… 7.25 — v — [1959] 3 All ER 225 .… 9.14, 10.30 — v Willoughby [1970] AC 467 .… 9.21, 9.23 Baker’s Creek Consolidated Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207 .… 5.14 Baker-Morrison v New South Wales (2009) 74 NSWLR 454 .… 28.13 Bakker v Joppich (1980) 25 SASR 468 .… 29.33 Baldi & Fletcher Pty Ltd v Rabmar Pty Ltd (1988) 25 IR 101 .… 20.13 Baldwin v Casella (1872) LR 7 Ex 323 .… 15.14 Baldwin v Cole (1704) 6 Mod Rep 212 .… 4.31 Bale v Seltsam Pty Ltd (SC(Qld), BC9604013, 23 August 1996, unreported) .… 8.23 Bales v Parmeter (1935) 35 SR (NSW) 182 .… 6.38, 6.44 Balfour v A-G [1991] 1 NZLR 519 .… 7.14, 16.29, 17.3 Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 .… 13.50, 13.62, 14.57 — v Ray LR 8 Ch App 467 .… 14.25 Ball et Uxor v Axten (1866) 4 F & F 1019 .… 3.2, 3.4 Ballard v North British Ry Co 1923 SC 43 .… 8.42, 8.43, 8.48, 8.50 Ballett v Mingay [1943] KB 281; 1 All ER 143 .… 4.59 Ball-Guymer v Livantes (1990) 102 FLR 327 .… 4.38 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 .… 18.13, 25.23 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 .… 3.28, 3.31, 6.5, 6.13 Balme v Hutton (1833) 9 Bing 471 .… 4.49 Balnaves v Smith [2008] QSC 76 .… 10.15 Baltic Shipping Co v Dillon (1993) 176 CLR 344; 111 ALR 289 .… 27.45 — v Merchant ‘Mikhail Lermontov’ (1994) 36 NSWLR 361 .… 27.36 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 .… 18.22 Bamford v Turnley (1862) 3 B & s 66; 122 ER 27 .… 14.19, 14.26 Banbury v Bank of Montreal [1918] AC 626 .… 23.38 Bandwill Pty Ltd v Spencer-Laitt (2000) 23 WAR 390 .… 25.34 Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No 2) [1998] PNLR 564 .… 7.13 Bank of New Zealand v Deloitte Touche Tohmatsu [2007] 1 NZLR 663 .… 7.14 — v Greenwood [1984] 1 NZLR 525 .… 14.11 — v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 .… 13.39 Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248; 2 All ER 956 .… 26.8

— v — [1954] AC 584; 1 All ER 969 .… 26.8 Banks v Ferrari [2000] NSWSC 874 .… 4.57 Bankstown City Council v Alambo Holdings Pty Ltd (2005) 223 CLR 660; 221 ALR 1 .… 14.41 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; 65 ALR 1 .… 8.23, 8.33 Banovic v Perkovic (1982) 30 SASR 34 .… 10.12, 10.30 Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191; [1996] 3 All ER 365 .… 13.39 Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1990] 1 QB 665; [1989] 2 All ER 952 . … 13.35 — v — [1991] 2 AC 249; [1990] 2 All ER 947 .… 13.35, 13.38 Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 .… 14.6 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 .… 18.18, 19.59 — v — (1989) 20 NSWLR 493 .… 19.59 Barber v Penley [1893] 2 Ch 447 .… 14.56 Barclay v British Airways plc [2010] QB 187; [2009] 1 All ER 871 .… 12.42 — v Fealy (1910) 10 SR (NSW) 627 .… 25.11 — v Penberthy (2012) 291 ALR 608 .… 11.33, 13.49, 20.11, 20.17, 20.22 Bardwell v Galvin (1866) 6 SCR (NSW) 91 .… 25.12 Barfoot v Reynolds (1734) 2 Stra 953 .… 6.17 Baric v Doherty (1987) Aust Torts Reports 80–135 .… 18.7 Barisic v Devenport [1978] 2 NSWLR 111 .… 29.41 Barker v Adelaide City Corporation [1900] SALR 29 .… 5.7, 5.9 — v Braham (1773) 3 Wils KB 368; 95 ER 1104 .… 26.21 — v Corus UK Ltd [2006] 2 AC 572; 3 All ER 785 .… 1.14, 9.3 — v Furlong [1891] 2 Ch 172 .… 4.27, 4.50 — v Permanent Seamless Floors Pty Ltd [1983] 2 Qd R 561 .… 9.17 — v R (1983) 153 CLR 338; 47 ALR 1 .… 5.6 — v R (1994) 54 FCR 451; 127 ALR 280 .… 5.6 — v Sands (1890) 16 VLR 719 .… 25.17 — v South Australia (1978) 19 SASR 83 .… 7.29 Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 .… 8.42, 8.48 Barnard v Evans [1925] 2 KB 794 .… 6.18 — v Sully (1931) 47 TLR 557 .… 26.17 — v Towill (1998) 72 SASR 24 .… 10.8 Barnardiston v Chapman and Smith (1715) 4 East 121n; 102 ER 776n .… 4.34 Barnes v Hampshire County v Council [1969] 3 All ER 746 .… 7.7

— v Hay (1988) 12 NSWLR 337 .… 9.5, 13.38, 13.40, 23.29 — v Nayer (1986) The Times, 19 December .… 6.11, 6.14 — v Pooley (1935) 51 TLR 391 .… 24.12 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1968] 1 All ER 1068 .… 9.5, 26.29 — v Cohen [1921] 2 KB 461 .… 11.41 — v Guildford (Earl) (1855) 11 Exch 19 .… 5.14 Barr v Biffa Waste Services Ltd [2012] 3 WLR 795; 3 All ER 380 .… 14.22, 14.25 Barrett v Enfield London Borough Council [2001] 2 AC 633; [1999] 3 All ER 193 .… 7.23, 7.33 Barrett v London Borough of Enfield [2001] 2 AC 550; [1999] 3 All ER 193 .… 7.32 Barrett v Ministry of Defence [1995] 3 All ER 87 .… 10.6 Barrow v Arnaud (1846) 8 QB 595 .… 4.41 — v Bank of New South Wales [1931] VLR 323 .… 26.53 Barry v Tully (1888) 9 LR (NSW) (L) 476 .… 25.11, 25.12 Barrymores Pty Ltd v Harris Scarfe Ltd (2001) 25 WAR 187 .… 4.10 Bartley v Myers (2002) 83 SASR 183 .… 22.50 Barton v Armstrong [1969] 2 NSWR 451 .… 3.18, 3.19, 3.20 — v Chhibber (1988) Aust Torts Reports 80–185 .… 14.39 Bartonshill Coal Co v McGuire (1858) 3 Macq 300 .… 26.1 Barwick v English Joint Stock Bank (1867) LR 2 Ex 259 .… 26.53 Basébé v Matthews (1867) LR 2 CP 684 .… 25.5, 25.6 Basely v Clarkson (1681) 3 Lev 37 .… 5.10 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 .… 19.46 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399 .… 22.6 Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 .… 19.57 Bassanese v Martin (1982) 31 SASR 461 .… 11.40 Bassani v Mudge and Bassani [1964] SASR 56 .… 8.15 Bastions v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 .… 18.15 Bateman v Shepherd (1997) Aust Torts Reports 81–417 .… 18.14 Bateman v Slatyer (1987) 71 ALR 553 .… 22.30, 22.31, 22.50 Baten’s case (1610) 9 Co Rep 53b; 77 ER 810 .… 14.53 Bates v Parker [1953] 2 QB 231 .… 7.40 Bathurst City Council v Saban (1985) 2 NSWLR 704 .… 5.1 — v — (No 2) (1986) 58 LGRA 201 .… 14.13, 14.24, 14.25 Batiste v State of Queensland [2002] 2 Qd R 119 .… 9.4

Batt v Wilkinson 2 Qd R 619 .… 20.26 Battiato v Lagana [1992] 2 Qd R 234 .… 3.11, 3.14 Batts Combe Quarry Ltd v Ford [1943] Ch 51; [1942] 2 All ER 639 .… 21.16 Baud Corporation NV v Brook (1970) 40 DLR (3d) 418 .… 4.55 Baume v Commonwealth (1906) 4 CLR 97 .… 26.59, 26.60, 27.3 Bavins, Junior and Sims v London and South Western Bank [1900] 1 QB 270 .… 4.17 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616 .… 29.28 Baxter v Taylor (1832) 4 B & Ad 72 .… 5.23 Baylis v Waugh [1962] NZLR 44 .… 29.33 Bayliss v Lea [1961] SR (NSW) 247 .… 14.28 — v — [1962] SR (NSW) 521 .… 14.26, 14.28, 14.29 Bazley v Curry (1999) 174 DLR (4th) 45 .… 7.21, 26.1, 26.54 — v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207 .… 4.16 BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1991] 2 All ER 129 .… 4.17, 4.35, 4.39 Beach Petroleum NL v Johnson (1993) 43 FCR 1; 115 ALR 411 .… 21.53 Beach v Freeson [1972] 1 QB 14; [1971] 2 All ER 854 .… 19.43 Beale v Meehan [2000] NSWSC 282 .… 9.5 Beals v Hayward [1960] NZLR 131 .… 2.14, 4.47, 29.16 Beard v London General Omnibus Co [1900] 2 QB 530 .… 26.44 Beasley v Marshall (1977) 17 SASR 456 .… 10.11 — v — (1985) 40 SASR 544 .… 11.13, 11.15 Beatty v Brashs Pty Ltd [1998] 2 VR 201 .… 25.41, 27.41, 29.22 Beaudesert Shire Council v Smith (1966) 120 CLR 145 .… 14.36, 20.7 Beavis v Apthorpe (1962) 80 WN (NSW) 852 .… 9.7, 9.11, 9.13, 9.15 Beck v Mercantile Mutual Insurance Co Ltd [1961] SASR 311 .… 10.29 Becker v Smith’s Newspapers Ltd [1929] SASR 469 .… 19.10 Beckett v New South Wales [2012] HCA Trans 252 .… 25.5 — v — [2012] NSWCA 114 .… 25.5 Beckford v Hood (1798) 7 TR 620; 101 ER 1164 .… 16.2 Beckingham v Port Jackson & Manly Steamship Co [1957] SR (NSW) 403 .… 6.23 Beckwith v Philby (1827) 6 B & C 635 .… 6.37 — v Shordike (1767) 4 Burr 2092 .… 5.3 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 .… 27.51 Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2011] QB 357 .… 4.40 Beer v Australand Corp (Qld) Pty Ltd [2010] QSC 369 .… 10.15

Beetham v James [1937] 1 KB 527; 1 All ER 580 .… 24.10 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; 1 All ER 583 .… 15.13, 15.15, 15.16, 27.8 — v Richards [1905] 2 Ch 614 Behrooz v Secretary, DIMIA (2004) 219 CLR 486; 208 ALR 271 .… 6.43, 6.49 Beitzel v Crabb [1992] 2 VR 121 .… 6.53, 19.32 Bell v Peter Browne & Co [1990] 2 QB 495; 3 All ER 124 .… 28.16 — v SPC Ltd [1989] VR 170 .… 28.25 — v Thompson (1934) 34 SR (NSW) 431 .… 8.38 — v Western Australia (2004) 28 WAR 555 .… 26.40 Bell-Booth Group Ltd v A-G [1989] 3 NZLR 148 .… 13.23, 17.3, 18.7 Bellefield Computer Services Ltd v E Turner & Sons [2000] BLR 97 .… 13.66 Bellinger v Autoland Pty Ltd [1962] VR 514 .… 4.60 Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250; 1 All ER 118 .… 21.47 Belsize Motor Supply Co v Cox [1914] 1 KB 244 .… 4.35 Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210; [1970] 3 All ER 664 .… 4.37, 6.58 Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 .… 5.9, 5.20 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 .… 9.2 Benham v Gambling [1941] AC 157; 1 All ER 7 .… 11.30 Benjamin v Currie [1958] VR 259 .… 11.50 Benjamin v Storr (1874) LR 9 CP 400 .… 14.54, 14.56 Bennett v Chemical Construction (Great Britain) Ltd [1971] 3 All ER 822 .… 8.41 — v Dopke [1973] VR 239 .… 6.15, 6.16 — v Goodwin [2005] NSWSC 390 .… 4.39 — v Jones [1977] 2 NSWLR 355 .… 27.30 — v Metropolitan Police Commissioner [1995] 2 All ER 1 .… 25.31 — v — [1995] 1 WLR 488 .… 7.33 — v Minister for Community Welfare (1988) Aust Torts Reports 80–210 .… 26.59 — v — (1990) Aust Torts Reports 81–048 .… 26.59 — v — (1992) 176 CLR 408; 107 ALR 617 .… 7.20, 9.3, 9.5, 9.6, 9.13, 9.17, 26.59 — v Tugwell [1971] 2 QB 267; 2 All ER 248 .… 10.24 Bennette v Cohen (2005) 64 NSWLR 81 .… 18.4 Benning v Wong (1969) 122 CLR 249 .… 1.16, 7.31, 14.34 Benson v Kwong Chong (1932) NZPCC 456 .… 9.6 Benson v Lee [1972] VR 879 .… 7.48 Bent’s Brewery Co Ltd v Hogan [1945] 2 All ER 570 .… 21.12, 21.17

Bentley v Wright [1997] 2 VR 175 .… 13.35 Berezovsky v Abramovich [2011] 1 WLR 2290 .… 21.34, 21.35 Berkhoff v Burchill [1996] 4 All ER 1008 .… 18.3 Berno Bros Pty Ltd v Green’s Steel Constructions Pty Ltd (1992) 84 NTR 1 .… 28.23 Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902 .… 1.12, 5.9 Berrigan SC v Ballerini [2005] VSCA 159 .… 8.10 Berriman v Cricket Australia (2007) 17 VR 528 .… 28.41 Berry v British Transport Commn [1961] 1 QB 149; [1960] 3 All ER 322 .… 25.16, 25.17, 25.19 — v — [1962] 1 QB 306; [1961] 3 All ER 65 .… 25.16, 25.20, 25.21 Bertram v Armstrong & De Mamiel Constructions Pty Ltd (1978) 23 ACTR 15 .… 26.5 Berzins v Lulic (1986) 41 SASR 306 .… 10.11 Besozzi v Harris (1858) 1 F & F 92; 175 ER 640 .… 15.13 Best v Samuel Fox & Co Ltd [1952] AC 716; 2 All ER 394 .… 24.3 Betts v Receiver for the Metropolitan Police District [1932] 2 KB 595 .… 4.62 Betts v Whittingslowe (1945) 71 CLR 637 .… 9.4 Bevan Ashford v Geoff Yeandle (Contractors) Ltd [1999] Ch 239; [1998] 3 All ER 238 .… 25.34 Bevan Investments Ltd v Blackhall & Struthers (No 2) [1973] 2 NZLR 45 .… 27.23 — v — [1978] 2 NZLR 97 .… 27.23 Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334 .… 22.8 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 .… 26.34 Bhattacharya v NSW [2003] NSWSC 261 .… 3.37 Bialkower v Acohs Pty Ltd (1998) 83 FCR 1; 154 ALR 534 .… 29.32 Bici v Ministry of Defence [2004] EWHC 786 .… 3.2, 3.4, 6.15 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 .… 19.80, 19.81 Bidwell v Briant (1956) The Times, 9 May .… 9.11 Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2009] QB 725; [2008] EWCA Civ 1257 .… 26.9 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n .… 18.10 Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 .… 5.18 Bill Acceptance Corp Ltd v GWA Ltd (1983) 50 ALR 242 .… 22.33 Billerwell v Nominal Defendant [1996] ACT SC 100 .… 10.6 Billy Higgs & Sons Ltd v Baddeley [1950] NZLR 605 .… 8.19 Binks v North Sydney Council [2006] NSWSC 463 .… 8.33 Birch v Central West County District Council (1969) 119 CLR 652 .… 7.35 — v Thomas [1972] 1 All ER 905 .… 10.24

Birchmeier v Rockdale Municipal Council (1935) 51 WN (NSW) 201 .… 25.12 Bird v Holbrook (1828) 4 Bing 628 .… 3.23, 6.18 — v Jones (1845) 7 QB 742 .… 3.26, 3.27 — v O’Neill [1960] AC 907; 3 All ER 254 .… 14.43, 21.36 Bis Cleanaway t/a Chep v Tatale [2007] NSWSC 378 .… 4.17 Bishopgate Motor Finance Co Ltd v Transport Brakes Ltd [1949] 1 KB 322; 1 All ER 37 .… 4.25 Bitumen & Oil Refineries (Australia) Ltd v Commr for Government Transport (1955) 92 CLR 200 .… 29.33 Bjelke-Petersen v Burns [1988] 2 Qd R 129 .… 19.21 — v Warburton [1987] 2 Qd R 465 .… 18.16 Black v Christchurch Finance Co Ltd [1894] AC 48 .… 14.38 Black Range Tin v Shoobert [1973] WAR 131 .… 26.50 Blacker v Waters (1928) 28 SR (NSW) 406 .… 2.4, 2.14 Blackham v Pugh (1846) 2 CB 611; 135 ER 1086 .… 19.44 Blackshaw v Lord [1984] QB 1; [1983] 2 All ER 311 .… 19.39 Blacktown City Council v Sharp [2000] NSWCR 339 .… 5.20 Blackwell v Barroile Pty Ltd (1994) 123 ALR 81 .… 7.20 Blades v Higgs (1861) 10 CB NS 713 .… 6.24 — v — (1865) 11 HL Cas 621 .… 6.24 Blake v Barnard (1840) 9 C & P 626 .… 3.18, 3.19 Blake v Galloway [2004] EWCA Civ 814 .… 6.6 — v JR Perry Nominees Pty Ltd [2012] VSCA 122 .… 26.52 — v Lanyon (1795) 6 TR 221; 101 ER 521 .… 21.9 — v Midland Rly Co (1852) 18 QB 93; 118 ER 35 .… 11.40 Blamires v Lancs and Yorks Ry (1873) LR 8 Exch 283 .… 8.35 Blankley v Godley [1952] 1 All ER 436 .… 5.9 Bleathman v Peterson’s Industrial Paint Services [2001] TASSC 128 .… 10.17 Bliss v Hall (1838) 4 Bing NC 183; 132 ER 758 .… 14.45 Blobel v Ryan [2010] SADC 107 .… 7.57 Blomme v Sutton (1989) 52 SASR 576 .… 28.39, 28.42 Bloodworth v Cormack [1949] NZLR 1058 .… 14.15, 14.22 Bloomstein v Railway Executive [1952] 2 All ER 418 .… 26.34 Blotnicky v Oliver (1988) 84 NSR (2d) 14 .… 24.3 Bloxam v Sanders (1825) 4 B & C 941 .… 4.10 Blundell v Attorney-General [1968] NZLR 341 .… 6.42, 6.44

Blyth v Birmingham Water-works Co (1856) 11 Exch 781 .… 8.14 BM Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 12 ALR 363 .… 23.9 Boaler v Holder (1887) 51 JP 277 .… 25.5 Boardman v Sanderson [1964] 1 WLR 1317 .… 7.48 Bodley v Reynolds (1846) 8 QB 779 .… 4.40 Body Corporate 16113 v Auckland City Council [2008] 1 NZLR 838 .… 25.41, 27.41 Body Corporate No 207624 v North Shore City Council (Spencer on Byron) [2012] NZSC 83 .… 13.69, 13.73 Bohdal v Streets [1984] Tas R 82 .… 7.28 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582 .… 8.27, 8.34 Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] 4 All ER 771 .… 8.34 Bollen v Hickson [1981] Qd R 249 .… 27.36 Bolton v Pangallo (1987) 5 MVR 29 .… 10.12, 10.16 — v — [1950] 1 KB 201; [1949] 2 All ER 851 .… 14.17 — v — [1951] AC 850; 1 All ER 1078 .… 8.1, 8.31, 13.11 Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97 .… 4.9, 4.31, 4.58, 6.13 Bond v Barry (2008) 173 FCR 106; 249 ALR 110 .… 17.15 Bond Corp Holdings Ltd v Australian Broadcasting Commn (CA(NSW), 28 June 1989, unreported) .… 18.10 Bondarenko v Summers (1968) 69 SR (NSW) 269 .… 6.59 Bonnard v Perryman [1891] 2 Ch 269 .… 19.83 Bonnington Castings Ltd v Wardlaw [1956] AC 613; 1 All ER 615 .… 16.31 Booksan Pty Ltd v Wehbe (2006) Aust Torts Reports 81–830 .… 16.37 Boral Bricks NSW Pty Ltd v Frost (1987) Aust Torts Reports 80–097 .… 21.3, 21.10, 21.12 Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233 .… 22.28 Boscaini Investments Pty Ltd v Petrides (1982) 103 LSJS 250 .… 23.32 Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 .… 7.13 Bott v Carter [2012] NSWCA 89 .… 7.57 Bottomley v Bannister [1932] 1 KB 458 .… 7.15 — v F W Woolworth & Co Ltd (1932) 48 TLR 521 .… 18.23, 18.26 — v Todmorden Cricket Club [2003] EWCA Civ 1575 .… 7.38 Boughy v R (1986) 161 CLR 10; 65 ALR 609 .… 3.5, 3.10 Bourchier v Mitchell (1891) 17 VLR 27 .… 15.4 Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 All ER 585 .… 25.29, 25.32

Bourhill v Young [1943] AC 92; [1942] 2 All ER 396 .… 7.4, 7.15, 7.45, 8.28, 9.11 — v — 1941 SC 395 .… 7.51 Bourke v Bourke HC Christchurch AP 191/96, 16 May 1997 .… 5.5 Bourke v Butterfield & Lewis Ltd (1926) 38 CLR 354 .… 16.36 Bouronicus v Nylex Corp Ltd [1975] VR 120 .… 16.30 Bouvy v Count de Courte (1901) 20 NZLR 312 .… 25.5, 25.6 Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd (1997) 153 DLR (4th) 385 .… 7.12, 13.47, 13.55 Bowater v Rowley Regis Corporation [1944] KB 476; 1 All ER 465 .… 10.25, 10.30 Bowditch v McEwan (2002) 36 MVR 235 .… 6.31, 7.16, 7.23 Bowen v Anderson [1894] 1 QB 164 .… 14.42 — v Blair [1933] VLR 398 .… 27.3 — v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 .… 1.19, 13.10, 13.14, 13.68, 13.72, 28.20 Bowen-Rowlands v Argus Press Ltd (1926), The Times, 26 March .… 19.44 Bower v Peate (1876) 1 QBD 321 .… 14.38 Bowler v Hilda Pty Ltd (1998) 80 FCR 191; 153 ALR 95 .… 22.34 Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65; [1944] 2 All ER 579 .… 6.58 Boxsius v Goblet Freres [1894] 1 QB 842 .… 18.18, 19.56 Boy Andrew (Owners) v St Rognvald (Owners) [1948] AC 140 .… 8.32, 10.6 Boyd v Great Northern Rly Co [1895] 2 IR 555 .… 14.54 — v Mirror Newspapers Ltd [1980] 2 NSWLR 449 .… 18.2, 18.7 Boyd Knight v Purdue [1999] 2 NZLR 278 .… 13.27 Boyle v Kodak Ltd [1969] 2 All ER 439 .… 16.34 BP Oil New Zealand Ltd v Ports of Auckland Ltd [2004] 2 NZLR 208 .… 14.43 Brabazon v Western Mail Ltd (1985) 8 FCR 122 .… 17.14, 17.15, 23.3 Bracewell v Appleby [1975] Ch 408; 1 All ER 993 .… 5.20 Bradburn v Great Western Rly Co (1874) LR 10 Ex 1 .… 11.22 Bradbury v Henshall (1987) 5 MVR 248 .… 10.10 Bradford v Robinson Rentals Ltd [1967]1 All ER 267 .… 9.8 Bradford Corporation v Pickles [1895] AC 587 .… 14.24, 14.58 — v Webster [1920] 2 KB 135 .… 20.19 Bradken Consolidated Ltd v Broken Hill Pty Ltd (1979) 145 CLR 107; 24 ALR 9 .… 22.6 Bradlaugh v Gossett (1884) 12 QBD 271 .… 6.53 — v Newdegate (1883) 11 QBD 1 .… 25.34, 25.40 Bradley v Copley (1845) 1 CB 685 .… 4.9

— v Wallaces Ltd [1913] 3 KB 629 .… 15.7 — v Wingnut Films Ltd [1993] 1 NZLR 415 .… 3.22, 3.23, 5.12, 5.20 Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 .… 29.13 Bradman v Allens Arthur Robinson (2010) 107 SASR 1 .… 28.23 Bradmill Industries Ltd v B & s Products Pty Ltd (1980) 53 FLR 385 .… 22.18 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 .… 8.39, 9.2 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 .… 1.16, 8.5, 8.45, 9.2 — v Schatzel [1911] St R Qd 206 .… 3.20 — v Warren [1900] 2 IR 632 .… 15.3 Braham v J Lyons & Co Ltd [1962] 3 All ER 281 .… 16.18 Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR (NSW) 36 .… 25.4, 25.9, 25.10 Brambles Australia Ltd t/as Chep Australia v Tatale Pty Ltd [2004] NSWCA 232 .… 4.21, 4.55 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 .… 28.34, 29.34 Brambles Security Services Ltd v Bi-Lo Pty Ltd (1992) Aust Torts Reports 81–161 .… 4.17 Brandeis Goldschmidt & Co Ltd v Western Transport Ltd [1981] QB 864; [1982] 1 All ER 28 .… 4.41 Brander v Ryan (2000) 76 SASR 212 .… 18.4, 18.7 — v — (2000) 78 SASR 234 .… 18.4, 19.63 Brandon v Osborne, Garrett & Co [1924] 1 KB 548 .… 10.13 Brankstone v Cooper (1941) 43 WALR 51 .… 24.10 Brannock v Jetstar Airways Pty Ltd (2010) 273 ALR 391 .… 12.42 Brasyer v Maclean (1875) LR 6 PC 398 .… 25.32 Bray v Palmer [1953] 2 All ER 1449 .… 8.47 Brear v James Hardie & Co Pty Ltd (2000) 50 NSWLR 388 .… 28.41 Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 .… 28.40 Breen v Williams (1996) 186 CLR 71; 138 ALR 259 .… 7.22, 8.35 Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33; 2 All ER 753 .… 19.23 Bresatz v Przibilla (1962) 108 CLR 541 .… 11.28 Breslin v McKevitt [2011] NICA 33 .… 2.8, 3.2 Brew Bros Ltd v Snax (Ross) Ltd [1970] 1 QB 612; 1 All ER 587 .… 14.42 Brew v Whitlock [1967] VR 449 .… 25.33, 25.34, 25.39 Brickhill v Cooke [1984] 3 NSWLR 396 .… 27.7 Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460 .… 22.19, 22.23, 22.25, 23.11 Bridges v Hawkesworth (1851) 21 LJQB 75 .… 4.13 Bridgman v Stockdale [1953] 1 All ER 1166 .… 19.48 Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436; 1 All ER 264 .… 14.12

Brierly v Kendall (1852) 17 QB 937 .… 4.52 Briess v Woolley [1954] AC 333; 1 All ER 909 .… 26.37 Bright v Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 .… 10.23 Briginshaw v Briginshaw (1938) 60 CLR 336 .… 8.38 Brimelow v Casson [1924] 1 Ch 302 .… 21.18 Brinsmead v Harrison (1872) LR 7 CP 547 .… 29.28 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 .… 28.2, 28.22, 28.25 Brisbane Units Development Corp Pty Ltd v Robertson [1983] 2 Qd R 105 .… 23.26 Bristol and West Building Society v Mothew [1998] Ch 1; [1996] 4 All ER 698 .… 13.39 Bristol and West of England Bank v Midland Ry Co [1891] 2 QB 653 .… 4.31, 4.59 Bristol Conservatories Ltd v Conservatories Custom Built Ltd [1989] RPC 455 .… 23.7 Bristow v Moffatt-Virtue (Qld) Pty Ltd [1962] Qd R 377 .… 23.18 British Cast Plate Manufacturers (Governor & Co) v Meredith (1792) 4 Term Rep 794 .… 6.22 British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 2 All ER 1252 .… 14.17, 14.29, 14.34 British Chiropractic Ass’n v Singh [2011] 1 WLR 133 .… 19.17 British Columbia Electric Ry Co Ltd v Loach [1916] 1 AC 719 .… 10.5 British Economical Lamp Co Ltd v Empire Mile End Ltd (1913) 29 TLR 386 .… 4.31, 6.24 British Fame (Owners) v MacGregor (Owners) [1943] AC 197; 1 All ER 33 .… 10.17 British Homophone Ltd v Kunz [1935] All ER Rep 627 .… 21.10 British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479 .… 21.7, 21.10, 21.16 British Motor Trade Association v Gray (1951) SC 586 .… 21.7 — v Salvadori [1949] Ch 556; 1 All ER 208 .… 21.6, 21.16, 21.21 British Mutual Banking Co Ltd v Charnwood Forest Ry Co (1887) 18 QBD 714 .… 26.52 British Road Services Ltd v Slater [1964] 1 All ER 816 .… 14.40 British Telecommunications plc v One in a Million Ltd [1998] 4 All ER 476 .… 23.7 Brittliffe v Brittliffe (1990) Aust Torts Reports 81–060 .… 11.15 Brkovic v J O Clough & Son Pty Ltd (1983) 49 ALR 256 .… 8.22 Broadcasting Corp of NZ v Crush [1988] 2 NZLR 234 .… 19.9, 19.11 — v Progeni International Ltd [1990] 1 NZLR 109 .… 28.17 Broadhurst v Millman [1976] VR 208 .… 8.15, 10.15, 10.17 Broadway Approvals Ltd v Odhams Press Ltd [1965] 2 All ER 523 .… 19.22 Brock v Terrace Times Pty Ltd (1982) 40 ALR 97 .… 22.18 Brockway v Pando (2000) 22 WAR 405 .… 23.35, 26.53 Broderick v Forbes (1912) 5 DLR 508 .… 15.6

Brodie v Singleton Shire Council (2001) 206 CLR 512; 180 ALR 145 .… 7.4, 7.11, 7.12, 7.34, 7.36, 8.33, 14.55 Brogan v Territory Insurance Office Board (2009) 24 NTLR 159 .… 12.34 Broken Hill City Council v Tiziani (1997) 93 LGERA 113 .… 27.7 Brook v Cook (1961) 105 Sol Jo 684, 1094 .… 15.16 Brooke v Bool [1928] 2 KB 578 .… 29.25 Brooks v Hodgkinson (1859) 4 H & N 712 .… 6.47 — v LNW Ry Co (1884) 33 WR 167 .… 8.22 — v Metropolitan Police Commissioner [2005] 2 All ER 489 .… 7.30 — v Muldoon [1973] 1 NZLR 1 .… 19.39 — v New Zealand Guardian Trust Co Ltd [1994] 2 NZLR 134 .… 29.28 — v — [1995] 1 WLR 96 .… 29.28 — v Wyatt (1994) 99 NTR 12 .… 14.6 Broom v Morgan [1953] 1 QB 597; 1 All ER 849 .… 26.40 Broome v Cassell & Co Ltd [1972] AC 1027; 1 All ER 801 .… 27.10 Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207 .… 6.49 — v — [2007] FCA 519 .… 5.13 Brophy v NIAA Corp Ltd (1995) ATPR 41–399 .… 22.40 Brough v Wallace (1863) 2 W & W 195 .… 6.28 Broughton v Williams (1932) 28 Tas LR 1 .… 6.39 Brouwers v Street [2011] 1 NZLR 645 .… 14.18 Brown v Baxter (1987) 87 FLR 449 .… 12.13 — v Brash and Ambrose [1948] 2 KB 247; 1 All ER 922 .… 5.11 — v Chapman (1762) 1 W B1 427; 96 ER 243 .… 25.17 — v — (1848) 6 CB 365 .… 3.36 — v Dunsmuir [1994] 3 NZLR 485 .… 6.58 — v Edgington (1841) 2 M & G 279; 133 ER 751 .… 23.14 — v Hall (1881) 6 QBD 333 .… 21.5 — v Hawkes [1891] 2 QB 718 .… 25.14 — v Heathcote County Council [1986] 1 NZLR 76 .… 7.14 — v — [1987] 1 NZLR 720 .… 13.34 — v Jam Factory Pty Ltd (1981) 35 ALR 79 .… 22.32, 22.33, 22.48, 23.3 — v KMR Services Ltd [1995] 4 All ER 598 .… 13.38 — v Rolls-Royce Ltd [1960] 1 All ER 577 .… 8.34 — v Sevrup Fisheries Pty Ltd [1970] Tas SR 1 .… 27.40

— v Southport Motors Pty Ltd (1982) 43 ALR 183 .… 23.39 — v Target Australia Pty Ltd (1984) 37 SASR 145 .… 8.45 — v Toohey (1994) 35 NSWLR 417 .… 7.62 — v Watson (1871) 23 LT 745 .… 6.47 Brown Falconer Group Pty Ltd v South Parklands Hockey & Tennis Centre Inc (2005) 91 SASR 152 . … 13.41 Browne v D C Thomson & Co Ltd 1912 SC 359 .… 18.16 — v Dawson (1840) 12 Ad & El 624 .… 5.14 — v Dunn (1893) 6 R 67 .… 19.36 Brownie Wills v Shrimpton [1998] 2 NZLR 320 .… 13.34 Browning v Hemmings London Borough of Haringey [1997] EWCA Civ 1972 .… 10.17 Brownlee v MacMillan [1940] AC 802; 3 All ER 384 .… 24.10 Bruce v Odhams Press Ltd [1936] 1 KB 697; 1 All ER 287 .… 18.16 Brumby v Peaton (1991) 10 BCL 291 .… 13.68 Brunner v Williams (1975) 73 LGR 266 .… 5.5 Brunsden v Humphrey (1884) 14 QBD 141 .… 27.36 Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 .… 1.3, 7.9, 13.6, 13.14, 13.15, 13.22, 13.64, 13.67, 13.68, 13.70, 13.71, 13.72, 25.40, 26.33, 28.15 Bryanston Finance Co Ltd v De Vries [1975] QB 703; 2 All ER 609 .… 19.56, 29.28 Bryanston Leasings Ltd v Principality Finance Ltd [1977] RTR 45 .… 4.31, 4.41 Bryant v Fawdon Pty Ltd (1993) Aust Tort Reports 81–204 .… 7.40 — v Wardell (1848) 2 Exch 479 .… 4.6 Bryce v Swan Hunter Group plc [1988] 1 All ER 659 .… 9.3 Bryden v Chief General Manager of the Health Department (1987) Aust Torts Reports 80–075 .… 8.6 BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221 .… 13.30, 13.36 Buchanan v Jennings [2005] 1 AC 115; 2 NZLR 577 .… 6.53, 19.32 Buckingham v Hughes Helicopters Inc [1982] 2 NZLR 738 .… 29.7 Buckland v Guildford Gas Light and Coke Co [1949] 1 KB 410; [1948] 2 All ER 1086 .… 7.7 Buckland v Johnson (1854) 15 CB 145; 139 ER 375 .… 28.44 Buckle v Holmes [1926] 2 KB 125 .… 15.3, 15.13 Buckley v Herald & Weekly Times Pty Ltd (2009) 24 VR 129 .… 19.76 — v Smith Transport Ltd [1946] 4 DLR 721 .… 29.16 Buckley and Hamilton LJJ [1913] 3 KB 771 .… 3.31 Buckpitt v Oates [1968] 1 All ER 1145 .… 10.24 Budden v BP Oil Ltd (1980) 124 Sol Jo 376 .… 8.3, 8.35 Buddhist Society of Western Australia v Bristile Ltd [2000] WASCA 210 .… 18.19

Budget Rent-a-Car Systems Pty Ltd v Van Der Kemp [1984] 3 NSWLR 303 .… 11.47 Bugge v Brown (1919) 26 CLR 110 .… 26.41, 26.50, 26.53 Building Workers’ Industrial Union v Odco Pty Ltd (1991) 29 FCR 104; 99 ALR 735 .… 21.18 Buksh v Minister for Immigration (1991) 102 ALR 647 .… 13.23 Bull v Batten (1987) 5 MVR 341 .… 10.7 — v — [1955] 1 QB 234; 1 All ER 253 .… 5.11, 5.12 Bulli Coal Co, Re (1899) 20 LR (NSW) Eq 91 .… 5.4, 5.8 Bulli Coal Mining Co v Osborne [1899] AC 351 .… 28.9, 28.33 Bulli Coal Mining Co, Re (1897) 18 LR (NSW) (Eq) 146 .… 25.40 —, Re [1899] AC 351 .… 25.40 Bullock v Goodluck (1983) 48 ALR 217 .… 29.21 — v Miller (1987) 5 MVR 55 .… 8.15, 10.11 Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 .… 4.18 Bunt v Tilley [2006] 3 All ER 336 .… 18.26 Bunyan v Jordan (1937) 57 CLR 1 .… 3.2, 3.4, 3.21, 3.22 Burchett v Kane (1976), [1980] 2 NSWLR 266n .… 19.40 Burford v Allen (1993) 60 SASR 428 .… 11.10, 11.13 Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349; 1 All ER 511 .… 11.41 Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212; 76 ALR 173 .… 22.6 Burk v Commonwealth [2008] VSCA 29 .… 8.36 Burke v Forbes Shire Council (1987) 63 LGRA 1 .… 13.36 — v LFOT Pty Ltd (2002) 209 CLR 282; 187 ALR 612 .… 29.32 Burmah Oil Co Ltd v Lord Advocate [1965] AC 75; [1964] 2 All ER 348 .… 6.22 Burn v Morris (1834) 2 Cr M 579 .… 4.17 Burnett v British Waterways Board [1973] 2 All ER 631 .… 10.24 — v Randwick City Council [2006] NSWCA 196 .… 4.5 Burnicle v Cutelli [1982] 2 NSWLR 26 .… 11.19 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 .… 7.9, 7.39, 8.4, 14.48, 26.27, 26.31, 26.32, 26.35 Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216 .… 29.23 Buron v Denman (1848) 2 Exch 167 .… 6.55 Burrowes v Lock (1805) 10 Ves Jun 470; 32 ER 927 .… 23.15 Burrows v March Gas and Coke Co (1872) LR 7 Exch 96 .… 9.17 Burswood Management Ltd v Burswood Casino Motel/Hotel Pty Ltd (1985) 7 FCR 186; (1987) ATPR 40–824 .… 22.19, 23.9

Burt v Moore (1793) 5 Term Rep 329 .… 6.28 Burton v Brooks [2011] NSWCA 175 .… 7.39 — v Davies [1953] St R Qd 26 .… 3.27, 3.28 — v Hughes (1824) 2 Bing 173 .… 4.20 — v Islington Health Authority [1993] QB 204; [1992] 3 All ER 833 .… 7.16 — v Spragg [2007] WASC 247 .… 5.4 Bus v Sydney County Council (1989) 167 CLR 78; 85 ALR 577 .… 7.15, 8.33 Bush v Smith (1953) 162 Estates Gazette 430 .… 5.1 Bushel v Miller (1718) 1 Stra 128 .… 4.1, 4.20 Bushell’s case (1670) 1 Freem KB 2; 89 ER 2 .… 25.1 Bushells Pty Ltd v Commonwealth [1948] St R Qd 79 .… 5.15 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357 .… 22.28, 22.42, 23.27 Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 .… 4.36 — v Hobson (1838) 4 Bing NC 290; 132 ER 800 .… 4.14, 4.51 — v Simmons Crowley & Galvin [2000] 2 Qd R 252 .… 25.23 — v Standard Telephones & Cables Ltd [1940] 1 KB 399; 1 All ER 121 .… 14.39 Butterfield v Forrester (1809) 11 East 60; 103 ER 926 .… 10.5 Bux v Slough Metals Ltd [1974] 1 All ER 262 .… 8.35 Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 .… 9.22 Byblos Building Co Pty Ltd v Darlane Pty Ltd [1999] WASC 248 .… 8.27 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 .… 6.58, 16.10, 16.21 — v Boadle (1863) 2 H & C 722 .… 8.43 — v Deane [1937] 1 KB 818; 2 All ER 204 .… 18.6, 18.21 — v Hebden; Ex parte Hebden [1913] St R Qd 233 .… 6.32 — v Hoare [1965] Qd R 135 .… 4.13 — v Judd (1908) 27 NZLR 1106 .… 14.18 Bywell Castle (The) (1879) 4 PD 219 .… 10.13 C C Czarnikow Ltd v Koufos [1969] 1 AC 350; [1967] 3 All ER 686 .… 9.8, 27.45 Cabassi v Vila (1940) 64 CLR 130 .… 19.33, 21.51, 25.1 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 229 ALR 136 .… 22.18 — v Pub Squash Co Pty Ltd (1980) 32 ALR 387 .… 23.6 Cadman v Saskatchewan (1988) 51 DLR (4th) 52 .… 15.3 Cakebread v Hopping Brothers (Whetstone) Ltd [1947] KB 641; 1 All ER 389 .… 6.58

CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606 .… 7.30 Calderwood v Nominal Defendant [1970] NZLR 296 .… 29.34 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 .… 7.31, 8.8, 8.31 Caledonian Rly Co v Walker’s Trustees (1882) 7 App Cas 259 .… 14.54 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; 100 ALR 746 .… 7.40 Callis v Gunn [1964] 1 QB 495; [1963] 3 All ER 677 .… 3.11 Callow (F E) (Engineers) Ltd v Johnson [1971] AC 335; [1970] 3 All ER 639 .… 16.27 Calma v Sesar (1992) 106 FLR 446 .… 4.16 Calsil Ltd v TVW Enterprises Ltd (1984) ATPR 40,451 .… 22.15 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227 .… 1.19, 7.12, 13.6, 13.10, 13.11, 13.17, 13.18, 13.45, 13.46, 13.47, 13.52, 13.54, 13.59, 13.61, 21.7, 24.13, 27.6 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 .… 7.13, 8.13 Calveley v Chief Constable of Merseyside [1989] AC 1228; 1 All ER 1025 .… 16.26, 25.29 Calvert v Stollznow [1982] 1 NSWLR 175 .… 7.40 — v — [2008] EWCA Civ 1427 .… 7.20 — v — [2009] Ch 330 .… 10.9 Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; 1 All ER 53 .… 14.40, 14.49, 14.57 Camden Nominees Ltd v Forcey [1940] Ch 352 .… 21.18 Cameron v Commr for Railways [1964] Qd R 480 .… 7.23 — v James [1945] VLR 113 .… 25.6 — v Nottingham Insurance Co Ltd [1958] SASR 174 .… 9.15 Caminer v Northern and London Investment Trust Ltd [1951] AC 88; [1950] 2 All ER 486 .… 8.13, 8.21 Camm v Salter [1992] 2 Qd R 342 .… 11.23 Cammellia Tanker Ltd v International Transport Workers Federation [1976] ICR 274 .… 21.12 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610 .… 22.31 — v Dominion Breweries Ltd [1994] 3 NZLR 559 .… 4.4, 4.9 — v MGN Ltd [2004] 2 AC 457; 2 All ER 995 .… 17.4 — v Nangle (1985) 40 SASR 161 .… 11.13, 11.20, 11.28, 11.29 — v Paddington Corporation [1911] 1 KB 869 .… 14.13, 14.56, 27.6 — v Samuels (1980) 23 SASR 389 .… 3.8, 3.10 — v Spottiswoode (1863) 32 LJ QB 185 .… 19.20 — v Thompson [1953] 1 QB 445; 1 All ER 831 .… 29.13 Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 384; 229 ALR 58 .… 25.33, 27.41

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 .… 27.7 Campomar Sociedad Ltda v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677 .… 22.20, 23.11 Camporese v Parton (1983) 150 DLR (3d) 208 .… 19.39 Canada Cement La Farge Ltd v B C Lightweight Aggregate Ltd (1983) 145 DLR (3d) 385 .… 21.45, 21.53, 21.57 Canadian National Railway Co v Norsk Pacific Steamship Co Ltd (1992) 91 DLR (4th) 289 .… 13.16, 13.17, 13.47, 13.52 Canadian Pacific Ry Co v Lockhart [1942] AC 591; 2 All ER 464 .… 26.51 Canadian Pacific Wine Co v Tuley [1921] 2 AC 417 .… 4.53 Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1 .… 29.34, 29.37, 29.40 Candler v Crane Christmas & Co [1951] 2 KB 164; 1 All ER 426 .… 7.6, 13.10 Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd [1986] AC 1; [1985] 2 All ER 935 .… 4.66, 13.16, 13.47, 13.55, 13.59, 13.61, 13.62 Candy v Thompson [2005] QCA 382 .… 4.12 Cannon v Tahche (2002) 5 VR 317 .… 25.27, 25.29 Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81–246 . … 6.6 Canterbury v Spence (1972) 464 F 2d 772 .… 6.8, 8.2 Caparo Industries plc v Dickman [1990] 2 AC 605; 1 All ER 568 .… 7.11, 7.12, 7.13, 13.28 Capelvenere v Omega Development Corporation Pty Ltd (1983) 1 IPR 456 .… 23.38 Capital & Counties plc v Hampshire County Council [1997] QB 1004; 2 All ER 865 .… 7.25, 7.36, 16.13, 16.23 Capital Finance Co Ltd v Bray [1964] 1 All ER 603 .… 4.55 Cardakliya v Mt Isa Mines Ltd [1995] 1 Qd R 500 .… 20.10, 24.3 Carey v Australian Broadcasting Corp (2010) 77 NSWLR 136 .… 28.6 — v — Lake Macquarie City Council (2007) Aust Torts Reports 81–874 .… 10.9, 10.20 — v — [2007] NSWCA 4 .… 8.10, 10.30 Carian v Elton [2006] NSWCA 168 .… 8.38 Carleton v Australian Broadcasting Corp (2002) 172 FLR 398 .… 19.15, 19.26, 19.48 Carll (RA & T J) Ltd v Berry [1981] 2 NZLR 76 .… 27.7 Carlsholm (Owners) v Calliope (Owners), The Calliope [1970] P 172; 1 All ER 624 .… 9.17 Carlton & United Breweries Ltd v Tooth & Co Ltd (1986) 7 IPR 581 .… 21.10 Carman Construction Ltd v Canadian Pacific Railway Co (1982) 136 DLR (3d) 193 .… 23.26 Carmarthenshire County Council v Lewis [1955] AC 549; 1 All ER 565 .… 7.7, 7.29, 24.14, 26.29 Carmen v Fox Film Corp 198 NYS 766 (1923) .… 21.21 Carnegie v Victoria (SC(Vic), 14 Sept 1989, Crockett J, unreported) .… 3.25 Carnes v Thompson (1932) 48 SW 2d 903 .… 3.4

Carob Industries Pty Ltd v Simto Pty Ltd (SC(WA), 11 December 1997, Anderson J, unreported) .… 25.34 Carpenter’s Investment Trading Co Ltd v Commonwealth (1952) 69 WN (NSW) 175 .… 26.53 Carratt v Morley (1841) 1 QB 18 .… 6.47 Carr-Glynn v Frearons [1999] Ch 326; [1998] 4 All ER 225 .… 13.79 Carrick v Commonwealth [1983] 2 Qd R 365 .… 11.15 Carrier v Bonham [2002] 1 Qd R 474 .… 3.22, 8.17, 10.11, 29.16 Carrington v A-G [1972] NZLR 1106 .… 27.7 Carroll v Purcell (1961) 107 CLR 73 .… 11.46, 11.52 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; 113 ALR 577 .… 11.28, 19.75, 19.81 Carter v Kenyon (1863) 2 SCR (NSW) 222 .… 14.33 — v Murray [1981] 2 NSWLR 77 .… 14.42 — v Walker [2010] VSCA 340 .… 3.2, 3.12, 3.21, 3.22 Carter, Re (1984) 4 SR (WA) 219 .… 12.13 Cartledge v E Jopling & Sons Ltd [1963] AC 758; 1 All ER 341 .… 28.11, 28.12, 28.20, 28.22, 28.27 Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; 24 ALR 97 .… 14.40, 14.42, 14.58 Case of the King’s Prerogative in Saltpetre (1606) 12 Co Rep 12 .… 6.22 Case of Thorns (1466) YB 6 Ed IV 7 pl 18 .… 5.10 Case of Wainwright v UK [2006] ECHR 807; (2007) 44 EHRR 809 .… 3.11 Casey v Automobiles Renault Canada Ltd (1965) 54 DLR (2d) 600 .… 25.4 Cashfield House Ltd v David & Heather Sinclair Ltd [1995] 1 NZLR 452 .… 26.25, 26.32 Casley-Smith v F s Evans & Son Pty Ltd (No 5) (1988) 67 LGRA 108 .… 7.36, 14.38 Casper v Murelli [2010] QDC 79 .… 4.55 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 .… 18.3, 18.8 — v Ministry of Health [1951] 2 KB 343; 1 All ER 574 .… 8.44, 8.46, 26.7, 26.29, 26.36 Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159 .… 9.8, 9.10 Castle v St Augustine’s Links Ltd (1922) 38 TLR 615 .… 14.16, 14.55 Castlereagh Motels Ltd v Davies-Roe (1966) 67 SR (NSW) 279 .… 16.15 Castrique v Behrens (1861) 3 E & E 709; 121 ER 608 .… 25.5, 25.6 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722 .… 10.5, 16.36 Catanzariti v Steadfast Insurance Co Ltd (1976) 14 SASR 15 .… 11.41 Caterson v Commissioner for Railways (1973) 128 CLR 99 .… 10.13 Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 .… 26.10, 26.11, 26.54 Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 .… 7.58, 12.45 — v — [2001] QCA 246 .… 7.58

Cattle v Stockton Waterworks Co (1875) LR 10 QB 453 .… 13.58, 13.59 Catto v Hampton Australia Ltd (No 3) (2004) 89 SASR 234 .… 25.25 Caudor (Lord) v Lewis (1835) 1 Y & C Ex 427 .… 5.18 Caulk, Re (1984) 480 A 2d 93 .… 6.22 Causer v Stafford-Bell [1997] ACT SC 90 .… 8.43 Cavalier v Pope [1906] AC 428 .… 7.40 Cavanagh v Commonwealth (1960) 103 CLR 547 .… 9.5 — v London Transport Executive (1956) The Times, 23 October .… 9.14 — v NT News Services Ltd (1989) 96 FLR 268 .… 19.48 — v Ulster Weaving Co Ltd [1960] AC 145; [1959] 2 All ER 745 .… 8.34 Cave v Robinson Jarvis & Rolf [2003] 1 AC 384; [2002] 2 All ER 641 .… 28.33 Caven v Women’s and Children’s Health (2007) 15 VR 447 .… 28.4 Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178; [1938] 4 All ER 389 .… 4.18, 4.33, 4.38, 4.40 Cayzer Irvine & Co v Carran Co (1884) 9 App Cas 873 .… 8.35 CBD Investments Pty Ltd v Ace Ceramics Pty Ltd (1992) 10 BCL 437 .… 13.76 Cekan v Haines (1990) 22 NSWLR 296 .… 1.20 Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 2 All ER 1252 .… 13.56 Central Goldfields Shire v Haley [2009] VSCA 101 .… 8.10 Central Trust Co v Rafuse (1986) 31 DLR (4th) 481 .… 1.3, 28.12 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 507; [1942] 1 All ER 491 .… 26.9, 26.42 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 .… 6.59 CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 .… 8.10 CGU Insurance Ltd v Lawless [2008] VSCA 38 .… 9.2 CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 .… 1.13 Chadwick v Allen [2012] SADC 105 .… 10.22 — v British Transport Commission [1967] 1 WLR 912; 2 All ER 945 .… 7.25, 7.48, 7.49 Chaina v The Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533 .… 20.17 Chakravarti v Advertiser Newspapers Ltd (1997) 193 CLR 519; 154 ALR 294 .… 19.41 — v — (1998) 72 SASR 361 .… 19.75 Challen v McLeod Country Golf Club (2004) Aust Torts Reports 81–650 .… 14.37 Challen v McLeod Country Golf Club (2004) Aust Torts Reports 81–760 .… 14.17 Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 .… 6.49 Challoner v McPhail (1877) Knox 157 .… 27.17 Chamberlaine v Chester & Birkenhead Ry Co (1848) 1 Ex 870; 154 ER 371 .… 16.2, 16.14

Chan v Fong (1973) 5 SASR 1 .… 10.11 — v Minister for Immigration (1991) 31 FCR 29; 103 ALR 499 .… 25.28, 25.29 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468 .… 19.17, 19.18, 19.27 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 .… 19.7, 19.77 — v Parras (2002) Aust Torts Reports 81–675 .… 18.14 Channell B in Burroughes v Bayne (1860) 5 H & N 296 .… 4.46 Chaplin v Dunstan Ltd [1938] SASR 245 .… 26.48 — v Hawes (1828) 3 Car & P 554; 172 ER 543 .… 10.14 — v Hicks [1911] 2 KB 786 .… 9.4 Chapman v Hearse (1961) 106 CLR 112; [1962] ALR 379 .… 7.26, 9.7, 9.8, 9.10, 9.13, 9.14, 9.16, 9.17, 11.37, 29.26 — v Lord Ellesmere [1932] 2 KB 431 .… 19.41, 19.56 — v McDonald [1969] IR 188 .… 24.11 — v Tangmere Airfield Nurseries Ltd [1998] EWCA Civ 1730 .… 9.5 Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 .… 9.2, 9.3, 9.4, 9.5, 9.6 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80–691 .… 19.72 — v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 .… 17.4, 19.83 Charles v Zadow (1981) 28 SASR 492 .… 10.11 Charleston v News Group Newspapers Ltd [1995] 2 AC 65; 2 All ER 313 .… 18.10 Charlwood v Greig (1851) 3 Car & Kir 46; 175 ER 457 .… 15.14 Charrington v Simons & Co Ltd [1971] 1 WLR 598 .… 5.21 Chase Manhattan v Chase Corporation (1986) 70 ALR 303 .… 22.19, 22.20, 22.23, 22.24 Chase v de Groot [1994] 1 NZLR 613 .… 13.68 Chase, Re [1989] 1 NZLR 325 .… 27.12 Chatterton v Gerson [1981] QB 432; 1 All ER 257 .… 6.5, 6.8 — v Secretary of State for India [1895] 2 QB 189 .… 19.35 Chaundry v Prabhakar [1988] 3 All ER 718 .… 13.22 Chaytor v London, New York and Paris Association of Fashion Ltd (1961) 30 DLR (2d) 527 .… 3.29 Cheetham v Bou (1989) 10 MVR 242 .… 8.33 Chenard and Co v Arissol [1949] AC 127 .… 6.53, 19.32 Cheney v Bardwell (1899) 20 LR (NSW) 401 .… 25.11 CHEP Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 .… 4.18 Cherneskey v Armadale Publishers Ltd (1978) 90 DLR (3d) 321 .… 18.19 Chester v Afshar [2004] UKHL 41 .… 9.3, 9.6 — v Afshar [2005] 1 AC 134; [2004] 4 All ER 587 .… 8.27, 9.5

— v Waverley Corporation (1939) 62 CLR 1 .… 7.4, 7.5, 7.25 Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982 .… 18.8, 19.44 Chesworth v Farrer [1967] 1 QB 407; [1966] 2 All ER 107 .… 27.47, 27.48 Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; 1 All ER 229 .… 4.53, 6.49 Chief Commr for Railways & Tramways (NSW) v Boylson (1915) 19 CLR 505 .… 11.41 Chief Constable of Cleveland Police v McGrogan [2002] EWCA Civ 86 .… 6.37 Childs v Hillock [1994] 2 NZLR 65 .… 12.43 — v Lewis (1924) 40 TLR 870 .… 3.37 Chin v Venning (1975) 49 ALJR 378 .… 2.4 Chinery v Viall (1860) 5 H & N 288 .… 4.10, 4.36 Chinese Herald Ltd v New Times Media Ltd [2004] 2 NZLR 749 .… 18.13 Chinn v Morris (1826) 2 C & P 361 .… 3.29 Chippett v Thompson (1868) 7 SCR (NSW) 349 .… 6.51 Chisholm v State Transport Authority (1987) 46 SASR 148 .… 8.38 Chittenden v Hale [1933] NZLR 836 .… 15.23 Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070 .… 8.5, 8.8, 9.16 Chomley v Watson [1907] VLR 502 .… 18.16 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 .… 7.39, 16.12 Chorlton v Walker (1983) 35 SASR 47 .… 20.15 Chotiputhsilpa v Waterhouse [2005] NSWCA 295 .… 10.11 Christchurch Press Co Ltd v McGaveston [1986] 1 NZLR 610 .… 18.16 Christian v Johannesson [1956] NZLR 664 .… 15.23 Christiani & Nielsen Pty Ltd v Goliath Portland Cement Ltd (1993) 2 Tas R 122 .… 13.76 Christie v Bridgestone Australia Pty Ltd (1983) 33 SASR 377 .… 10.15 — v Davey [1893] 1 Ch 316 .… 14.23 — v Leachinsky [1947] AC 573; 1 All ER 567 .… 6.42 Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141; 1 All ER 39 .… 7.40, 10.30 — v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 .… 26.16, 26.17 Christopher v Police (HC(NZ), Cooke J, 22 April 1974, unreported) .… 6.28 Christopherson v Bare (1848) 11 QB 473 .… 3.7 Christopoulos v Angelos (1996) 41 NSWLR 700 .… 28.17 Chubb Cash Ltd v John Crilley & Son [1983] 2 All ER 294 .… 4.18, 4.20, 4.35, 4.37, 4.40 Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80–101 .… 5.22 Chynoweth v Anzil (SA FC, 23 October 1981, unreported) .… 10.11

Cianciarulo v HP Products Pty Ltd [1959] VR 170 .… 10.25 Cirjak v Todd (1977) 17 SASR 316 .… 10.11 Citicorp Australia Ltd v BS Stillwell Ford Pty Ltd (1979) 21 SASR 142 .… 4.8, 4.27, 4.37 Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423 .… 19.57, 26.41 City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 .… 4.4, 4.35, 4.59 City of Gosnells v Roberts (1994) 85 LGERA 214 .… 29.13 City of Kamloops v Neilsen (1984) 10 DLR (4th) 641 .… 7.31 City of Lincoln (The) (1889) 15 PD 15 .… 9.14 City of Stirling v Tremeer [2006] WASCA 73 .… 9.4 Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52 .… 4.14 Clancy v Davis (1882) 3 LR (NSW) (L) 299 .… 16.11 Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170 .… 14.45 Clark & Co Ltd v Goodwill Motors Ltd [1939] NZLR 493 .… 26.53 Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367 .… 22.43, 23.27 Clark v Ainsworth (1996) 40 NSWLR 463 .… 19.81 — v Associated Newspapers Ltd [1998] 1 All ER 959 .… 23.7 — v Kramer [1986] WAR 54 .… 11.14, 11.28 — v Molyneux (1877) 3 QBD 237 .… 19.50 — v Sloane [1923] NZLR 1129 .… 14.15 — v Stingel [2005] VSCA 107 .… 28.14 — v University of Melbourne [1978] VR 457 .… 29.13 — v — [1979] VR 66 .… 29.13 — v Vare [1930] NZLR 430 .… 18.3, 18.14 Clarke v Bailey (1933) 33 SR (NSW) 303 .… 6.44 — v Bruce Lance & Co [1988] 1 All ER 364 .… 13.79 — v Cowper (1889) 10 LR (NSW) 106 .… 6.48 — v Dickson (1858) E B & E 148; 120 ER 463 .… 23.15 — v Gisborne Shire Council [1984] VR 971 .… 7.34, 27.7 — v Holmes (1862) 7 H & N 937 .… 8.21 — v Norton [1910] VLR 494 .… 19.17 Clay v Freda (1988) 144 LSJS 274 .… 11.22 Clayton v LeRoy [1911] 2 KB 1031 .… 4.57 Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729 .… 14.9, 14.43, 27.19, 29.40 Cleary v Booth [1893] 1 QB 465 .… 6.32

— v Hore-Lacy (No 2) (2009) 21 VR 692 .… 19.17 Clegg v Dearden (1848) 12 QB 576 .… 5.4 Clement v Milner (1800) 3 Esp 95 .… 6.28 Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487 .… 26.5 Clissold v Cratchley [1910] 2 KB 244 .… 4.47 CLM v Accident Compensation Corporation [2006] 3 NZLR 127 .… 12.45 Close v Steel Co of Wales [1962] AC 367; [1961] 2 All ER 953 .… 16.27 Clout Industrial Pty Ltd v Baiada Poultry Pty Ltd (2004) 61 NSWLR 111 .… 29.34 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 .… 7.26, 7.30 Clubb v Wimpey and Co Ltd [1936] 1 All ER 69 .… 3.34 — v — [1936] 3 All ER 148 .… 3.34 Clybucca Holdings Pty Ltd v Hill [1984] WAR 44 .… 27.30 Clyne v Deputy Commr of Taxation (NSW) (No 5) (1982) 13 ATR 677 .… 26.59 Clyne v NSW Bar Association (1960) 104 CLR 186 .… 25.33, 25.37 Coal Miners’ Union (WA) v True (1959) 33 ALJR 224 .… 21.45, 21.51 Coastal Recycled Cooking Oils Pty Ltd v Innovate Business Action and Strategies Pty Ltd [2007] NSWSC 831 .… 4.19 Coates v Government Insurance (NSW) (1995) 36 NSWLR 1 .… 7.42, 7.48 Cobbett v Grey (1850) 4 Exch 729 .… 3.27 Cockcroft v Smith (1705) 2 Salk 642 .… 6.15, 6.16 Coco v R (1994) 179 CLR 427; 120 ALR 415 .… 3.25, 5.2, 5.6, 6.49 Codrington v Lloyd (1838) 8 Ad & El 449 .… 6.47 Coffey v Geraldton Lumpers’ Union (1928) 31 WALR 33 .… 21.51 Coggs v Bernard (1703) 2 Ld Raym 909 .… 8.30 Cole v De Trafford (No 2) [1918] 2 KB 523 .… 8.48 Cole v Ellis (1992) 60 SASR 481 .… 20.15 — v Ellis (SA FC, 13 May 1993, unreported) .… 20.15 — v P & O Ports Ltd [2002] WASCA 157 .… 9.6 — v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52 .… 7.7, 7.30, 7.39, 10.30 — v Turner (1704) 6 Mod Rep 149 .… 3.9, 3.10 Coleman v Buckingham’s Ltd [1963] SR (NSW) 171 .… 25.4, 25.20 — v Harvey [1989] 1 NZLR 723 .… 4.34 — v Watson & Shaw [2007] QSC 343 .… 6.37 Coles-Smith v Smith [1965] Qd R 494 .… 5.2, 5.14, 5.19, 27.7 Colgate-Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 391 .… 22.14

— v Smithkline Beecham Holdings (Australia) Pty Ltd (1997) 39 IPR 147 .… 22.15 Collerton v MacLean [1962] NZLR 1045 .… 18.20, 19.50, 19.71 Collett v Hutchins [1964] Qd R 495 .… 7.23, 7.29 Collier v Electrum Acceptance Pty Ltd (1986) 66 ALR 613 .… 22.33, 22.54, 23.39 Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 43 NSWLR 131 .… 22.54 Collingwood Hotel Pty Ltd v O’Reilly [2007] NSWCA 155 .… 7.30 Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601 .… 23.27, 23.39, 22.43 — v — (1988) 79 ALR 83 .… 23.39 Collins v Hertfordshire County Council [1947] KB 598; 1 All ER 633 .… 26.7 — v Renison (1754) Say 138; 96 ER 830 .… 6.18, 6.28 — v Repatriation Commission (2009) 177 FCR 280; 258 ALR 204 .… 9.18 — v Wilcock [1984] 1 WLR 1172 .… 3.9, 3.10 Coloca v BP Australia Ltd [1992] 2 VR 429 .… 27.11 Colonial Mutual Life Assurance Soc Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 .… 26.2, 26.14, 23.35, 26.51 Colwill v Reeves (1811) 2 Camp 575; 170 ER 1257 .… 4.47, 4.48 Commercial & General Insurance Co Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374 .… 29.40 Commercial Bank of Australia Ltd v Insurance Brokers Assoc of Australia (1977) 16 ALR 161 .… 22.13 Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 .… 23.18, 23.22, 23.25 Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 .… 25.3, 25.4, 25.14 Commissioner of Main Roads v Jones (2005) 215 ALR 418 .… 7.17, 7.62 Commissioner of Police v Hastwell [1987] 1 NZLR 468 .… 6.49 Commissioner of Railways v Quinlan [1964] AC 1054 .… 7.38 — v Ruprecht (1979) 142 CLR 563 .… 10.9 Commonwealth Bank v Mehta (1991) 23 NSWLR 84 .… 13.34, 22.28 — v Smith (1991) 102 ALR 453 .… 13.32, 22.26 Commonwealth Banking Corp v Speck (1988) 144 LSJS 17 .… 13.34 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 .… 25.3, 25.9, 25.14, 25.16 — v Smith (1938) 59 CLR 527 .… 25.5 Commonwealth v Anderson and Nichols (1960) 105 CLR 303 .… 5.6 — v Butler (1958) 102 CLR 465 .… 9.7, 9.18 — v Chessell (1991) 30 FCR 154; 101 ALR 182 .… 27.27 — v Cocks (1966) 115 CLR 413 .… 26.46

— v Connell (1986) 5 NSWLR 218 .… 2.20, 26.39 — v Cornwell (2007) 229 CLR 519; 234 ALR 148 .… 28.17 — v Dinnison (1995) 56 FCR 389; 129 ALR 239 .… 28.25 — v Dixon (1988) 13 NSWLR 601 .… 28.2 — v Eland (1992) Aust Torts Reports 81–157 .… 7.34 — v Evans Deakin Industries Ltd (1986) 161 CLR 254; 66 ALR 412 .… 16.12, 29.5 — v Fernando (2012) 200 FCR 1; 287 ALR 267 .… 3.24 — v Griffith (2007) 70 NSWLR 268 .… 25.1 — v Introvigne (1982) 150 CLR 258; 41 ALR 577 .… 7.21, 7.29, 8.36, 26.8, 26.29 — v Jenner (1989) 9 MVR 387 .… 29.6 — v Ling (1993) 44 FCR 397; 118 ALR 309 .… 25.41 — v Martin (1985) 5 FCR 351 .… 11.37 — v — (1985) 59 ALR 439 .… 9.17 — v McLean (1996) 41 NSWLR 389 .… 10.6 — v Murray (1988) Aust Torts Reports 80–207 .… 14.49, 23.19, 23.21, 23.31, 27.10, 27.11, 27.32 — v Quince (1944) 68 CLR 227 .… 20.16, 20.19 — v Shaw (2006) 66 NSWLR 325 .… 28.24 — v Verwayen (1990) 170 CLR 394; 95 ALR 321 .… 28.2, 29.6 —of Australia v McLean (1996) 41 NSWLR 389 .… 9.8, 9.11 Commr for Railways (NSW) v Anderson (1961) 105 CLR 42 .… 7.37, 7.38 — v Cardy (1960) 104 CLR 274 .… 7.37, 7.38, 7.40 — v Hooper (1954) 89 CLR 486 .… 7.38 — v Scott (1959) 102 CLR 392 .… 20.13, 20.16, 20.17, 20.19 Commr for Railways v Ruprecht (1979) 142 CLR 563; 25 ALR 481 .… 10.10 Commr for Road Transport v Adamcik (1961) 78 WN (NSW) 483 .… 9.2 Commr of Main Roads v Hennessey (1996) 24 MVR 440 .… 29.41 Commr of Railways (Western Australia) v Stewart (1936) 56 CLR 520 .… 9.13 Commr of Taxation v Zimmerlie [1988] 2 Qd R 500 .… 28.16 Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101; [1964] 1 All ER 216 .… 29.22 Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 .… 16.6, 26.34 ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465 .… 22.24, 23.7, 23.8 — v — (1991) 101 ALR 461 .… 22.24 Concrete Constructions (NSW) Pty Ltd v Builders Labourers’ Federation (1988) 83 ALR 385 .… 5.13 — v Nelson (1990) 169 CLR 594; 92 ALR 193 .… 22.7, 22.8

Condon v Basi [1985] 1 WLR 866 .… 8.28 Conlon v Simms [2007] 3 All ER 802 .… 13.34, 23.18 Conn v David Spencer Ltd [1930] 1 DLR 805 .… 3.29 connect.com.au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348 .… 22.19 Connell v Odlum [1993] 2 NZLR 257 .… 7.14 Connolly v ‘Sunday Times’ Publishing Co Ltd (1908) 7 CLR 263 .… 27.4 Connor v Surrey County Council [2011] QB 429; [2010] 3 All ER 905 .… 7.33 Conroy v Lowndes [1958] Qd R 375 .… 14.6 Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 .… 19.63 Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81–815 .… 10.9 — v — [2005] NSWCA 380 .… 8.10 Consolidated Co v Curtis & Son [1892] 1 QB 495 .… 4.18, 4.27, 4.28 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 .… 18.2, 18.14 Consorzio del Prosciutto di Parma v Marks & Spencer plc [1991] RPC 351 .… 23.7 Constantine v Imperial Hotels Ltd [1944] KB 693; 2 All ER 171 .… 25.43 Contest v Croxton (1875) Sydney Morning Herald, 10 December .… 25.11 Contra Fleeming v Orr (1855) 2 Macq 14 .… 15.15 Cook v ACT Racing Club Inc [2001] ACTSC 106 .… 9.13 — v Alexander [1974] QB 279; [1973] 3 All ER 1037 .… 19.40 — v Beal (1697) Ld Raym 176 .… 6.16 — v Cavenagh (1981) 10 NTR 35 .… 11.42 — v Cook (1986) 162 CLR 376; 68 ALR 353 .… 1.16, 7.9, 8.24, 10.22 — v Fanning (1976) 10 Nfld & PEIR 212 .… 27.15 — v Lewis [1952] 1 DLR 1 .… 29.29 — v R & M Reurich Holding Pty Ltd [2004] NSWCA 268 .… 7.25 — v Ward (1830) 6 Bing 409; 130 ER 1338 .… 19.71 — v Wright [1967] NZLR 1034 .… 24.12, 24.13 Cook Strait Skyferry Ltd v Dennis Thompson International Ltd [1993] 2 NZLR 72 .… 21.14 Cooke v Forbes (1867) LR 5 Eq 166 .… 14.51 Coomera Resort Pty Ltd v Kolback Securities Ltd [2004] 1 Qd R 1 .… 21.54, 21.55 Cooper v Crabtree (1881) 19 Ch D 193 .… 5.23 — v — (1882) 20 Ch D 589 .… 5.11 — v Frost [1937] NZLR 1071; George v Bentley (1972) 3 SASR 170 .… 23.9 — v Railway Executive [1953] 1 All ER 477 .… 15.9, 16.30, 16.38 — v Willomatt (1845) 1 CB 672 .… 4.6

Cooper Henderson Finance Ltd v Colonial Mutual General Insurance Co Ltd [1990] 1 NZLR 1 .… 13.34 Co-operative Group (CWS) Ltd v Pritchard [2011] 3 WLR 1272; [2012] 1 All ER 205 .… 6.14 Cope v Sharpe (No 2) [1912] 1 KB 496 .… 6.21 Copeland v Buck [1938] SASR 214 .… 6.48 Coppin v Tobler Bros Canberra Marine Centre Pty Ltd [1980] 1 NSWLR 183 .… 29.32 Corbett v Pallas (1995) 86 LGERA 312 .… 14.26 Corea v Peiris [1909] AC 549 .… 25.11 Corgill v Mervyn (1876) 2 NZ Jur (NS) SC 50 .… 15.8 Cornes v Ten Group Pty Ltd [2012] SASCFC 99 .… 18.4 Cornman v Eastern Counties Ry Co (1859) 4 H & N 781 .… 8.31 Cornwall v Rowan (2004) 90 SASR 269 .… 19.32, 19.40, 19.49, 19.54, 19.57, 19.62, 25.29, 25.31, 25.32 Cornwell v Myskow [1987] 2 All ER 504 .… 18.4, 19.15 Corporacion Nacional del Cobre de Chile v Sogemin Metals Ltd [1997] 2 All ER 917 .… 21.56 Corr v IBC Vehicles Ltd [2008] 1 AC 884; 2 All ER 943 .… 9.8, 9.14, 9.15, 10.16, 10.30, 11.36 Corrections Corp of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448 .… 22.6 Cortis v Baker [1968] SASR 367 .… 10.13 Cory Lighterage Ltd v Transport & General Workers Union [1973] ICR 339; 2 All ER 558 .… 21.35 Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714 .… 22.40 Costello v Chief Constable of Derbyshire Constabulary [2001] 3 All ER 150 .… 4.5 — v Chief Constable of Northumbria Police [1999] 1 All ER 550 .… 7.25, 7.30 — v O’Donnell (1882) 1 NZLR (CA) 105 .… 29.26 Cother v John Fairfax & Sons Ltd (1947) 64 WN (NSW) 154 .… 18.13, 29.12 Cotic v Gray (1981) 17 CCLT 138 .… 9.7 Cotton v Commr for Road Transport and Tramways (1942) 43 SR (NSW) 66 .… 8.15, 8.18 Couch v Attorney-General [2008] 3 NZLR 725 .… 7.14, 7.15, 7.30, 7.34 — v — (No 2) [2010] 3 NZLR 149 .… 2.5, 12.44, 27.10, 27.11 — v Steel (1854) 3 El & Bl 402; 118 ER 1193 .… 16.2, 16.25 Coull v Nationwide News Pty Ltd (2008) 23 NTLR 147; 155 NTR 1 .… 18.19, 19.41 Country Road Clothing Pty Ltd v Najee Nominees Pty Ltd (1991) 20 IPR 419 .… 22.15 County Hotel & Wine Co v London & North Western Ry Co [1918] 2 KB 251 .… 27.41 — v — [1919] 2 KB 29; [1921] 1 AC 85 .… 27.41 County Personnel (Employment Agency) Ltd v Alan R Pulver & Co [1987] 1 WLR 916 .… 23.19 Coupey v Henley, Whole & Webster (1797) 2 Esp 540 .… 6.17 Coupland v Arabian Gulf Petroleum Co [1983] 3 All ER 226 .… 27.44

Cousins v Greaves (1920) 54 DLR 650 .… 15.8 — v Wilson [1994] 1 NZLR 463 .… 2.12, 5.11, 5.14, 5.23 Covacevich v Thomson (1988) Aust Torts Reports 80–153 .… 29.37 Covell v Laming (1808) 1 Camp 497 .… 5.2 Cowan v Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699 .… 7.30 Coward v Baddeley (1859) 4 H & N 478 .… 3.4, 3.10 Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 .… 3.32, 26.39, 26.59 — v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 .… 5.5, 6.12 Cowland v Telkesi (2000) 209 LSJS 70 .… 11.46 Cox v Bath (1893) 14 LR (NSW) 263 .… 6.24 — v Burbidge (1863) 13 CB (NS) 430; 143 ER 171 .… 15.3, 15.9 — v New South Wales (2007) 71 NSWLR 225 .… 7.29 — v — [2007] NSWSC 471 .… 9.5 Cox & Coxon Ltd v Leipst [1999] 2 NZLR 15 .… 22.47 Coxhead v Richards (1846) 2 CB 569; 135 ER 1069 .… 19.47 Coyne v Citizen Finance Ltd (1991) 172 CLR 211; 99 ALR 252 .… 18.7 Craddocks Transport Ltd v Stuart [1970] NZLR 499 .… 27.36 Craig v Frost (1936) 30 QJP 140 .… 6.32 — v Marsh (1935) 35 SR (NSW) 323 .… 4.22, 4.31, 4.41 — v Troy (1997) 16 WAR 96 .… 13.34 Cramer v The Queen (28 October 1998, BC9805729, unreported) .… 6.31 Crampton v Nugawela (1996) 41 NSWLR 176 .… 19.75 Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486; [1999] 1 All ER 929 .… 26.53 Cressy v Johnson (No 3) [2009] VSC 52 .… 4.47 Criminal Injuries Compensation Act 1983, Re (1984) 58 ACTR 17 .… 12.16 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 .… 7.10, 7.11, 7.12, 7.31, 7.34, 7.36, 16.17 Critchley v Hill (1963) 38 DLR (2d) 492 .… 25.3 Crockett v Roberts (2002) 11 Tas R 393 .… 11.20, 11.21 Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435; 1 All ER 142 .… 21.18, 21.44, 21.45, 21.47, 21.49, 21.57, 21.60 Croke v Wiseman [1981] 3 All ER 852 .… 11.11 Cronan v Hepburn [1958] ALR 405 .… 8.15 Crookes v Newton 2011 SCC 47 .… 18.24

Cross v Denly (1952) 52 SR (NSW) 112 .… 18.4, 18.14 — v The Commercial Agency Ltd (1900) 18 NZLR 153 .… 25.17 Crow v Wood [1971] 1 QB 77; [1970] 3 All ER 425 .… 15.10 Crowhurst v Amersham Burial Board (1878) LR 4 Ex D 5 .… 14.34 Crowley v Glissan (No 2) (1905) 2 CLR 744 .… 25.11 Crowther v Australian Guarantee Corp Ltd (1985) Aust Tort Reports 80–709 .… 4.55 Cruise v Terrell [1922] 1 KB 664 .… 5.11 Crump v Lambert (1867) LR 3 Eq 409 .… 14.11 Cruttendon v Brenock [1949] VLR 366 .… 15.14, 15.15 CSL Australia Pty Ltd v Formosa [2009] NSWCA 363 .… 7.40 CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1 .… 11.19, 24.5 — v Heys (1989) 1 WAR 294 .… 11.54 — v Page (2002) 37 MVR 376 .… 29.34 — v Thompson (2003) 59 NSWLR 77 .… 24.3 Cubillo v Commonwealth (2000) 103 FCR 1; 174 ALR 97 .… 26.59 — v — (2001) 112 FCR 455; 183 ALR 249 .… 16.23, 26.59, 28.23 — v — (No 2) (2000) 103 FCR 1; 174 ALR 97 .… 3.31, 16.23 Cue Design Pty Ltd v Playboy Enterprises Pty Ltd (1982) 45 ALR 535 .… 22.20 Cuff v Broadlands Finance Ltd [1987] 1 NZLR 343 .… 4.20 Culkin v McFie [1939] 3 All ER 613 .… 8.15 Cull v Judd [1980] WAR 161 .… 11.28 Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1 .… 11.7, 11.8, 27.29 Cumberland v Clark (1996) 39 NSWLR 514 .… 25.3 Cummings (or McWilliams) v Sir William Arrol & Co Ltd [1962] 1 All ER 623 .… 9.17 Cummings v Lewis (1993) 41 FCR 559; 113 ALR 285 .… 22.34 Cunard Steamship Co Ltd v Stacey [1955] 1 Lloyd’s Rep 247 .… 21.10 Cunard v Antifyre Ltd [1933] 1 KB 551 .… 14.34 Cunningham v Clarke (NZ HC, Gallen J, 23 March 1990, unreported) .… 25.23 — v Harrison [1973] QB 942; 3 All ER 463 .… 11.22 — v Nominal Defendant (1970) 17 FLR 61 .… 11.58 Curator of Deceased Estates v Fernandez (1977) 16 ALR 445 .… 11.54 Curistan v Times Newspapers Ltd [2009] QB 23; [2008] 3 All ER 923 .… 19.40 Curmi v McLennan [1994] 1 VR 513 .… 7.28, 9.6, 9.16 Curran v Young (1965) 112 CLR 99 .… 20.21, 24.4 Curwen v James [1963] 1 WLR 748 .… 9.22

— v Yan Yean Land Co Ltd (1891) 17 VLR 745 .… 23.18 Cusack v Stayt (2000) 31 MVR 517 .… 6.5 Cush v Dillon (2011) 243 CLR 298; 279 ALR 631 .… 19.47, 19.53 Cushing v Peter Walker & Son Ltd [1941] 2 All ER 693 .… 14.40 Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181; [2006] 4 All ER 256 .… 13.35 Customs (Comptroller of) v Martin Square Motors Ltd [1993] 3 NZLR 289 .… 13.23 Customs and Excise Commissioners v Barclay’s Bank plc [2007] 1 AC 181; [2006] 4 All ER 256 .… 7.11 Cutler v United Dairies (London) Ltd [1933] 2 KB 297 .… 7.25 — v Vauxhall Motors Ltd [1971] 1 QB 418; [1970] 2 All ER 56 .… 9.19 — v Wandsworth Stadium Ltd [1949] AC 398; 1 All ER 544 .… 16.8, 16.14, 16.19, 16.25 Cvetkovic v Princes Holdings Pty Ltd (1989) 51 SASR 365 .… 10.25 Cyril Smith & Associates Pty Ltd v The Owners Strata Plan No 64970 [2011] NSWCA 181 .… 28.15, 29.34 Czatyrko v Edith Cowan University (2005) 79 ALJR 839; 214 ALR 349 .… 7.20, 10.10 D D v East Berkshire Community NHS Trust [2004] QB 558; [2003] 4 All ER 796 .… 25.1 D & C Builders Ltd v Rees [1966] 2 QB 617; [1965] 3 All ER 837 .… 21.35 D & F Estates Ltd v Church Commrs for England [1989] AC 177; [1988] 2 All ER 992 .… 13.66, 13.76, 26.33 D C Thomson & Co Ltd v Deakin [1952] Ch 646; 2 All ER 361 .… 21.3, 21.7, 21.8, 21.10, 21.12, 21.15, 21.16, 21.24 D Joseph Ltd v Ralph Wood & Co Ltd [1951] WN 224 .… 4.40 D, Re [1976] Fam 185; 1 All ER 326 .… 6.9 D’Agruima v Seymour (1951) 69 WN (NSW) 15 .… 15.4 D’Amato v Badger (1996) 137 DLR (4th) 129 .… 20.10 D’Angelis v Levy (1987) 138 LSJS 292 .… 19.4 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 .… 7.30, 7.57, 8.35 D’Souza v Director of Public Prosecutions [1992] 4 All ER 545 .… 6.40 D’Urso v Sanson [1939] 4 All ER 26 .… 9.14, 10.30 Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 .… 8.7, 8.8 Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156 .… 21.10 Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291 .… 14.26, 27.51 Dainford Ltd v Sanrod Pty Ltd (1985) ATPR 40–513 .… 23.39 Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30 .… 10.14, 10.18, 13.42, 26.15, 26.53 Dairy Farmers Co-op Ltd v Azar (1990) 170 CLR 293; 95 ALR 1 .… 16.27

Dairy Industry Marketing Authority v Southern Farmers Co-op Ltd (1982) 39 ALR 613 .… 22.24 Dairy Vale Metro Co-Op Ltd v Brownes Dairy Ltd (1981) 35 ALR 494 .… 22.18, 22.24 Daishowa Inc v Friends of the Lubicon (1998) 158 DLR (4th) 699 .… 21.5 Dakhyl v Labouchere [1908] 2 KB 325n .… 19.17 Dale v Wood (1822) 7 Moore CP 33 .… 6.16 Dalehite v United States (1953) 346 US 15; 97 L Ed 1427 .… 7.32 Dallison v Caffery [1965] 1 QB 348; [1964] 2 All ER 610 .… 6.45 Dalton v Angus & Co (1881) 6 App Cas 740 .… 14.18, 14.38, 26.23 Daly v Liverpool Corporation [1939] 2 All ER 142 .… 8.17 Danby v Beardsley (1880) 43 LT 603 .… 25.3 Daniel Efrat Consulting Services Pty Ltd; Ex parte Hawke, Re (1999) 91 FCR 154; 162 ALR 429 .… 25.42 Daniels v Anderson (1995) 37 NSWLR 438 .… 13.42, 27.40 — v Telfer (1933) 34 SR (NSW) 99 .… 25.4 — v Thompson [1998] 3 NZLR 22 .… 1.6, 27.13 Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 .… 3.13 Dare v Dobson [1960] SR (NSW) 474 .… 29.37 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435; [2000] 4 All ER 193 .… 25.1 Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 .… 28.20 Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 .… 16.11, 16.18, 26.39, 27.36 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; 68 ALR 385 .… 10.23 Dartim Shipping Co Ltd v McGuinniss (1958) 2 FLR 216 .… 21.23 Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 .… 22.8 Davey v Harrow Corporation [1958] 1 QB 60; [1957] 2 All ER 305 .… 14.41 David Jones Ltd v Federated Storemen & Packers Union (1985) 14 IR 75 .… 21.12, 21.23, 21.47 David Kimber TV & Sound Ltd v Kaiapoi Borough Council [1988] 1 NZLR 376 .… 23.29 David Syme & Co Ltd v Canaan (1918) 25 CLR 234 .… 18.16 — v Hore-Lacy (2000) 1 VR 667 .… 19.4 — v Lloyd [1984] 3 NSWLR 346 .… 18.16 — v Mather [1977] VR 516 .… 19.81, 27.30 David v Abdishou [2012] NSWCA 109 .… 18.18 Davidson v Chief Constable of North Wales [1994] 2 All ER 597 .… 3.34 Davies v Adelaide Chemical & Fertilizer Co Ltd (1946) 74 CLR 541 .… 16.37 — v Bennison (1927) 22 Tas LR 52 .… 5.9, 7.55 — v Mann (1842) 10 M & W 546; 152 ER 588 .… 10.5, 10.6

— v Nyland (1975) 10 SASR 76 .… 21.18, 21.22, 21.23 — v Solomon (1871) LR 7 QB 112 .… 27.6 — v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291; 1 All ER 620 .… 10.6, 10.17 — v Taylor [1974] AC 207; [1972] 3 All ER 836 .… 11.41 Davis v Bunn (1936) 56 CLR 246 .… 2.20, 8.43, 8.48, 8.49, 8.50, 9.2, 9.6 — v Capper (1829) 10 B & C 28; 109 ER 362 .… 25.27 — v Gell (1924) 35 CLR 275 .… 25.3, 25.5, 25.7, 25.11, 25.16 — v Nationwide News Pty Ltd (2008) 71 NSWLR 606 .… 19.58, 19.76, 19.81 — v Nolras Pty Ltd [2005] NSWCA 379 .… 7.39 — v Oswell (1837) 7 C & P 804 .… 4.40 — v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 .… 10.23 — v Russell (1829) 5 Bing 354 .… 6.39 Davys Burton v Thom [2009] 1 NZLR 437 .… 28.16 Dawkins v Lord Rokeby (1873) LR 8 QB 255 .… 25.1 — v — (1875) LR 7 HL 744 .… 25.1 Dawson v Great Northern & City Railway Co [1905] 1 KB 260 .… 29.22 Day v Bank of New South Wales (1978) 18 SASR 163 .… 6.14 — v Bream (1837) 2 Mood & R 54; 174 ER 212 .… 18.26 — v Edwards (1794) 5 TR 648; 101 ER 361 .… 3.11 — v Rogers [2011] NSWCA 124 .… 7.57 De Bruyn v South Australia (1990) 54 SASR 231 .… 26.39, 26.57 De Francesco v Barnum (1890) 63 LT 514 .… 21.16 De Freville v Dill (1927) 96 LJKB 1056 .… 3.33 De Garis v Dalgety & Co Ltd [1915] SALR 102 .… 23.38 De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 .… 8.37 De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498 .… 14.37 De Jetley Marks v Lord Greenwood [1936] 1 All ER 863 .… 21.8 De Lambert v Ongley [1924] NZLR 430 .… 6.24 de Martell v Merton and Sutton Health Authority [1992] 3 All ER 820 .… 7.16 De Pasquale Bros Pty Ltd v Cavanagh Biggs & Partners Pty Ltd [2000] 2 Qd R 461 .… 14.18, 14.36 De Reus v Gray (2003) 9 VR 432 .… 3.14, 25.29, 25.32, 27.7, 27.10, 29.28 De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 .… 11.52 De Stempel v Dunkels [1938] 1 All ER 238 .… 18.4 Dean v Hogg (1834) 10 Bing 345 .… 6.18 — v J Thomas & Son [1981] Qd R 62 .… 4.40

— v Phung [2012] NSWCA 223 .… 27.11 Deane v Clayton (1817) 7 Taunt 489; 129 ER 196 .… 3.23, 6.18, 15.25 Deatons Pty Ltd v Flew (1949) 79 CLR 370 .… 26.42, 26.53 Dedousis v Water Board (1994) 181 CLR 171; 125 ALR 193 .… 28.25 Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173 .… 4.65 Deep Vein Thrombosis and Air Travel Group Litigation, Re [2006] 1 AC 495; 1 All ER 786 .… 12.42 Deepcliffe Pty Ltd v Gold Coast City Council (2001) 118 LGERA 117 .… 14.56, 21.30, 25.30 — v — [2012] FCAFC 10 .… 21.30 Dehn v Attorney-General [1988] 2 NZLR 564 .… 6.12, 6.22, 27.3 — v — [1989] 1 NZLR 320 .… 6.12 Delaney v T P Smith Ltd [1946] KB 393 .… 5.14 Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321; [2001] 4 All ER 737 .… 14.33, 14.49 Dellabarca v Northern Storemen & Packers Union [1989] 2 NZLR 734 .… 6.14, 21.18, 21.40, 21.45, 21.56 Deloitte Haskins & Sells v National Mutual Life Nominees Ltd [1993] AC 774; 2 All ER 1015 .… 13.34, 13.38 — v — [1993] 3 NZLR 1 .… 7.33 Deloitte Touche Tohmatsu v Cridlands Pty Ltd (2003) 204 ALR 281 .… 29.34 Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 454 .… 21.12 Delphin v Savolainen (1989) 10 MVR 37 .… 8.33 Delta Projects Ltd v North Shore City Council [1996] 3 NZLR 446 .… 14.33 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608 .… 23.3, 23.39 Demczuk v Polish Society Dom Mikolaja Inc (1987) 46 SASR 223 .… 7.39 Demer v Cook (1903) 88 LT 629 .… 6.47 Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561 .… 23.18, 23.32 Denaby & Cadeby Main Collieries Ltd v Yorkshire Miners Association [1906] AC 384 .… 21.9 Denham v Midlands Employers Mutual Assurance Ltd [1955] 2 QB 437; 2 All ER 561 .… 26.9 Denison v Fawcett (1958) 12 DLR (2d) 537 .… 21.52 Dennis v Ministry of Defence [2003] EWHC 793 .… 14.22, 14.51 Dent v Standard Life Association (1904) 4 SR (NSW) 560 .… 25.12, 25.13, 25.15 Department of Environment v Thomas Bates & Son Ltd [1991] 1 AC 499; 2 All ER 943 .… 13.66 Department of Housing and Works v Smith (No 2) [2010] WASCA 25 .… 7.38 Department of Immigration v Mok (SC(NSW), 30 Sept 1992, unreported) .… 6.22 Department of Transport v Williams, The Times, 7 December 1993 .… 21.5 Deposit & General Life Assurance Co v Ayscough (1856) 6 E & B 761; 119 ER 1048 .… 23.15

Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; 1 All ER 1011 .… 18.13 Derrick v Attorney-General [1994] 1 NZLR 112 .… 6.51, 6.52 Derrick v Cheung (2001) 181 ALR 301 .… 8.40 Derring Lane Pty Ltd v Fitzgibbon (2007) 16 VR 563 .… 13.36 Derry v Peek (1889) 14 App Cas 337 .… 23.16, 23.21 Des Forges v Wright [1996] 2 NZLR 758 .… 22.36 Design Services Ltd v Canada (2008) 293 DLR (4th) 437 .… 13.14, 13.76 Desmond v Chief Constable of Nottinghamshire Police [2009] EWHC 2362 .… 7.30, 7.33 Devenish Nutrition Ltd v Sanofi-Aventis SA [2009] Ch 390; 3 All ER 27 .… 4.40 Devereux v Barclay (1819) 2 B & Ald 702 .… 4.30 Devonshire v Jenkins (1979) 129 NLJ 849 .… 5.19 Devries v Australian National Railways Commission (1993) 177 CLR 472; 112 ALR 641 .… 8.36 Dewey v White (1827) Mood & M 56 .… 6.22 Dewhirst v Budget Rent-a-Car System Pty Ltd (1985) 8 FCR 1 .… 22.14 Di Napoli v New Beach Apartments Pty Ltd (2004) Aust Torts Reports 81–728 .… 5.8 — v — [2004] NSWSC 52 .… 5.20 Di Vincenzo v Krill [2005] WASCA 222 .… 7.39 Diamanti v Martelli [1923] NZLR 663 .… 23.38 Diamond v Simpson (No 1) (2003) Aust Torts Reports 81–695 .… 11.15 Dick v University of Queensland [2000] 2 Qd R 476 .… 28.27 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 .… 3.34 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171 .… 29.34 Dimond Manufacturing Co Ltd v Hamilton [1969] NZLR 609 .… 13.25 Dingle v Associated Newspapers Ltd [1961] 2 QB 162; 1 All ER 897 .… 29.27 — v — [1964] AC 371; [1962] 2 All ER 737 .… 29.27 Director of Liquor Licencing v Kordister Pty Ltd [2011] VSC 207 .… 8.38 Director-General, Dept of Community Services; Re Thomas [2009] NSWSC 217 .… 6.9 Dismore v Milton [1938] 3 All ER 762 .… 28.2 Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 .… 28.27 Dixon v Bell (1816) 1 Stark 287; 171 ER 475 .… 24.12 — v Davies (1982) 17 NTR 31 .… 11.29 — v Western Australia [1974] WAR 65 .… 24.14 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; 52 ALR 231 .… 28.27 Dobler v Halverson (2007) 70 NSWLR 151 .… 8.35 — v — [2007] NSWCA 335 .… 8.27

Dobson v Dobson (1999) 174 DLR (4th) 1 .… 1.17, 6.31, 7.16, 24.16 Dobsons v North Tyneside Health Authority [1997] 1 WLR 596 .… 4.16 Dodd v Monger (1704) 6 Mod Rep 215 .… 4.53 Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 All ER 928 .… 27.19 Dodge v Snell [2011] TASSC 19 .… 10.20 Dodwell v Burford (1669) 1 Mod Rep 24 .… 3.12 Doe v Bennett (2004) 236 DLR (4th) 577 .… 26.54 — v Doe 712 A 2d 132 (1998) .… 3.23 Dolbel v Dolbel (1962) 63 SR (NSW) 758 .… 24.15 Dolby v Newnes (1887) 3 TLR 393 .… 18.4 Dollar Sweets Pty Ltd v Federated Confectioners Assn [1986] VR 383 .… 14.43, 21.31, 21.42 Dominion Rent A Car Ltd v Budget Rent A Car Systems (1970) Ltd [1987] 2 NZLR 395 .… 21.25, 21.45, 21.60 Dominish v Astill [1979] 2 NSWLR 368 .… 11.46 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 .… 14.11, 14.15, 14.25 Donaghey v Boulton & Paul Ltd [1968] AC 1; [1967] 2 All ER 1014 .… 9.8, 16.28 Donaghy v Brennan (1901) 19 NZLR 289 .… 29.16 Donald v Suckling (1866) LR 1 QB 585 .… 4.9, 4.22 Donaldson v McNiven [1952] 1 All ER 1213 .… 8.2 — v — [1952] 2 All ER 691 .… 8.2, 8.32 — v Stockton Coal Co (1895) 16 LR (NSW) L 69 .… 16.33 Donellan v Watson (1990) 21 NSWLR 335 .… 7.57 Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 247 .… 9.11 Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 .… 5.22, 6.48 — v Graves (1880) 6 VLR 247 .… 4.37 — v Jackman [1970] 1 All ER 987 .… 3.10 Donoghue v Stevenson [1932] AC 562 .… 1.11, 1.14, 2.22, 7.5, 7.6, 7.7, 7.8, 7.11, 7.13, 7.16, 7.37, 7.38, 7.39, 13.9 Donovan v Union Cartage Co Ltd [1933] 2 KB 71 .… 8.29 Donselaar v Donselaar [1982] 1 NZLR 97 .… 27.11 Doodeward v Spence (1908) 6 CLR 406 .… 4.16 Doodeward’s case: Edwards; Re, Estate of Edwards [2011] NSWSC 478 .… 4.16 Doolan v Hill (1879) 5 VLR .… 5.10 — v Renkon Pty Ltd [2011] TASFC 4 .… 13.34, 27.27 Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 .… 29.38 Dorman v Horscroft (1980) 24 SASR 154 .… 15.15, 15.18

Dorotea Pty Ltd v Christos Doufas Nominees Pty Ltd [1986] 2 Qd R 91 .… 23.26 Dorset Yacht Co Ltd v Home Office [1970] AC 1004; 2 All ER 294 .… 7.30, 7.32, 7.33, 24.14 Dos Santos v C Morris Painting & Decorating [2006] NSWCA 54 .… 10.10 Doubleday v Kelly [2005] NSWCA 151 .… 7.39, 10.11 Dougal v McCarthy [1893] 1 QB 736 .… 5.6 Dougherty v Chandler (1946) 46 SR (NSW) 370 .… 29.25, 29.29 Doughty v Martino Developments Pty Ltd (2010) 27 VR 499 .… 24.3 — v Turner Manufacturing Co Ltd [1964] 1 QB 518; 1 All ER 98 .… 9.9 Douglas v Hello! Ltd .… 21.4 Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738; [1966] 3 All ER 214 .… 4.18 Douglass v Lewis (1982) 30 SASR 50 .… 19.33 Doundoulakis v Antony Sdrinis & Co [1989] VR 781 .… 28.21 Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 .… 8.38, 8.45, 16.30 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 .… 7.12, 8.35 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 .… 18.19, 19.73 Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 .… 25.22, 25.23, 25.25 Downham v Bellette (1986) Aust Tort Reports 80–038 .… 3.37 Downing v WIN Television (NSW) Pty Ltd [2010] NSWSC 1132 .… 5.5 — v — (No 2) [2011] NSWSC 563 .… 5.17 Downs v Williams (1971) 126 CLR 61 .… 16.11, 16.12, 29.5 Downsview Nominees Ltd v First City Corporation [1993] 1 NZLR 513 .… 2.12, 7.11 Dowthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72 .… 10.9 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; 2 All ER 119 .… 23.28 — v Pick [1965] WAR 95 .… 10.14 — v Vance (1880) 6 VLR (L) 87 .… 15.3 DPP v Wille [1999] NSWSC 661 .… 5.19 Dr Martens Australia Pty Ltd v Rivers (Australia) Pty Ltd (1999) 95 FCR 136 .… 22.18 Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431 .… 8.5, 8.38, 9.2 Drane v Evangelou [1978] 2 All ER 437 .… 5.1, 5.19, 27.45 Draper v Hodder [1972] 2 QB 556; 2 All ER 210 .… 9.10 Dredge v South Australia (1994) 62 SASR 374 .… 8.38 Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42–013 .… 21.54 Droga v Coluzzi [2000] NSWSC .… 3.14 Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 .… 18.7, 18.10

DS and RL v Gloucestershire County Council [2000] EWCA Civ 72 .… 7.33 Duane v Granrott [1982] VR 767 .… 19.48 Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; 1 All ER 97 .… 29.14 Dublin City Council v Gavin [2008] IEHC 444 .… 6.21 Dublin, Wicklow and Wexford Ry Co v Slattery (1873) 3 App Cas 1155 .… 8.37, 8.39 Duck v Mayeu [1892] 2 QB 511 .… 29.28 Duff Development Co v Kelantan Government [1924] AC 797 .… 29.7 Duffield v Police [1971] NZLR 381 .… 6.12 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; 22 ALR 439 .… 29.23 Duke Group Ltd v Pilmer (No 2) (2000) 78 SASR 216 .… 29.32 Dulieu v White & Sons [1901] 2 KB 669 .… 7.43, 7.49 Dumbell v Roberts [1944] 1 All ER 326 .… 3.11 Dumont v Miller (1873) 4 AJR 152 .… 27.3 Duncan v Bell [1967] Qd R 425 .… 10.12, 10.30 Dundas v Harbour Motors Pty Ltd (1988) Aust Torts Reports 80–161 .… 11.29 Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961 .… 19.39, 19.55 Dunlop v Woollahra Municipal Council [1982] AC 158; [1981] 1 All ER 1202 .… 25.28, 25.30 Dunlop Rubber Co v Dunlop [1921] 1 AC 367 .… 18.3 Dunn v Large (1783) 3 Doug KB 335 .… 5.16 — v Pain (1991) 57 SASR 133 .… 3.2 — v The Parole Board [2009] 1 WLR 728 .… 3.36 Dunshea v Ryan (1901) 1 SR (NSW) 163 .… 25.4 Dunstan v King [1948] VLR 269 .… 14.15, 14.25, 14.31 Dunton v Dover District Council (1978) 76 LGR 87 .… 27.51 Dunwich Corporation v Sterry (1831) 1 B & Ad 831 .… 4.50 Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40–918 .… 22.15 Durack v Gassior (13 April 1981, unreported) .… 6.51 Durant v Greiner (1990) 21 NSWLR 119 .… 22.9 Durham v BAI (Run Off) Ltd, Re Employers’ Liability Policy ‘Trigger’ Litigation [2012] 1 WLR 867; 3 All ER 1161 .… 9.3 DW Moore & Co Ltd v Ferrier [1988] 1 All ER 400 .… 28.16 Dwan v Farquhar [1988] 1 Qd R 234 .… 8.23, 8.27, 8.34, 8.43, 28.27 Dwight v Bouchier (2003) 37 MVR 550 .… 11.41 Dwyer v Rodrick (QB, 10 February 1982, unreported) .… 8.32 — v Southern [1961] SR (NSW) 896 .… 9.10

Dykstra v Head (1989) Aust Torts Reports 80–280 .… 11.8 Dymocks Book Arcade Ltd v McCarthy [1966] 2 NSWR 411 .… 4.40 E E v Australian Red Cross Society (1991) 105 ALR 53 .… — v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 602 .… 22.5, 22.10 — v Australian Red Cross Society (1991) 31 FCR 299; 105 ALR 53 .… 8.23, 8.35, 22.5, 22.10 — v Dorset County Council [1994] 3 WLR 853; 4 All ER 640 .… 16.23 — v K [1995] 2 NZLR 239 .… 25.29 Eadie v Groombridge (1992) 16 MVR 263 .… 15.21 Eardley v Granville (1876) 3 Ch D 826 .… 5.20 Earl v Wilhelm (2000) 183 DLR (4th) 45 .… 13.77 Earnshaw v Loy (No 1) [1959] VR 248 .… 25.5 — v — (No 2) [1959] VR 252 .… 27.4 Eason v Newman (1596) Cro Eliz 495 .… 4.31 Easson v L & NE Ry Co [1944] KB 421; 2 All ER 425 .… 8.12, 8.13, 8.45, 8.47, 8.49 East Suffolk Rivers Catchment Board v Kent [1940] 1 KB 319 .… 7.32 — v — [1941] AC 74 .… 7.32, 7.34, 7.35 Eastern & South African Telegraph Co Ltd v Cape Town Tramways Co Ltd [1902] AC 381 .… 14.12 Easts Van Villages Pty Ltd v The Minister [2001] NSWSC 559 .… 22.6 Eastwood v Holmes (1858) 1 F & F 347; 175 ER 758 .… 18.16 Eather v Jones (1975) 6 ALR 220 .… 15.14 Eaton v Pitman (1991) 55 SASR 386 .… 7.26, 9.11 Eaves v Huon Valley Council [1998] Tas SC 66 .… 10.7, 10.28 Ebbells v Rewell [1908] VLR 261 .… 5.14 Economy Shipping Pty Ltd v Fischer Construction Pty Ltd [1969] 2 NSWR 97 .… 27.51 Edgar v Farrow Mortgage Services Pty Ltd (Federal Court, 26 August 1992, unreported) .… 23.20 Edgington v Fitzmaurice (1885) 29 Ch D 459 .… 23.18, 23.32 Edmondson v Birch & Co Ltd [1907] 1 KB 371 .… 19.56 Edson v Roads & Traffic Authority (NSW) (2006) 65 NSWLR 453 .… 10.11 — v Roads & Traffic Authority [2006] NSWCA 68 .… 7.40, 8.10 Edwards v Amos (1945) 62 WN (NSW) 204 .… 4.14, 4.15, 4.57 — v Blue Mountains City Council (1961) 78 WN (NSW) 864 .… 14.46 — v Breeze [1964] NSWR 736 .… 11.41, 11.58 — v Rawlins [1924] NZLR 333 .… 15.7 — v Stocks (No 1) (2008) 17 Tas R 408 .… 28.17

Edwin Hill & Partners v First National Finance Corp plc [1988] 3 All ER 801 .… 21.19 Egan v State Transport Authority (1982) 31 SASR 481 .… 4.40, 4.55, 4.63, 4.64, 6.2, 27.11, 27.19 — v Willis (1998) 195 CLR 424; 158 ALR 527 .… 6.53 Egger v Gosford Shire Council (1989) 67 LGRA 304 .… 8.25 Egger v Lord Chelmsford [1965] 1 QB 248; [1964] 3 All ER 406 .… 19.57 Eggins v Canberra Enterprises Pty Ltd (1974) 2 ACTR 66 .… 8.38 Eijkman v Magann [2005] NSWCA 358 .… 28.25 Einhorn v Westminster Investments Ltd (1969) 6 DLR (3d) 71 .… 21.15 Elbourne v Gibbs [2006] NSWCA 127 .… 7.22, 9.4 Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER 205 .… 13.56 Electrolux Pty Ltd v Siniakis (CA(Vic), 10 April 1996, unreported) .… 11.29 Elguzouli-Daf v Commr of Police [1995] QB 335; 1 All ER 833 .… 7.33 Elias v Pasmore [1934] 2 KB 164; 1 All ER 380 .… 4.53 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 .… 2.23, 6.14 Elkin & Co Pty Ltd v Specialised Television Installation Pty Ltd (1960) 77 WN (NSW) 844 .… 4.15, 4.57 Ella (The) [1915] P 111 .… 6.26 Elliotson v Feetham (1835) 2 Bing NC 134; 132 ER 53 .… 14.45 Elliott v Bickerstaff (1999) 48 NSWLR 214 .… 8.46, 26.29 — v Boynton [1924] 1 Ch 236 .… 5.14 Elliott Steam Tug Co Ltd v Shipping Controller [1922] 1 KB 127 .… 13.59 Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 .… 7.30, 16.23 — v D’Angelo 253 P 2d 675 .… 29.18 — v Grant (1970) 91 WN (NSW) 920 .… 18.5 — v John Stenning & Son [1932] 2 Ch 81 .… 4.40 — v Joseph Ellis & Co [1905] 1 KB 324 .… 20.15 — v Loftus Iron Co (1874) LR 10 CP 10 .… 15.4, 15.5, 15.8 — v Sheffield Gas Consumers Co (1853) 2 E & B 767; 118 ER 955 .… 26.21 — v Wallsend District Hospital (1989) 17 NSWLR 553 .… 26.7, 26.29 Ellis (Richard) (WA) Pty Ltd v Mallins Investments Pty Ltd (1995) Aust Torts Reports 81–319 .… 13.34 Ellor v Selfridge & Co Ltd (1930) 46 TLR 236 .… 8.43 Ellul v Oakes (1972) 3 SASR 377 .… 13.41, 27.45 Elston v Dore (1982) 149 CLR 480; 43 ALR 577 .… 14.24 Elvin and Powell Ltd v Plummer Roddis Ltd (1933) 50 TLR 158 .… 4.29 Elwes v Brigg Gas Co (1886) 33 Ch D 562 .… 4.12

Emaco Ltd v Dyson Appliances Ltd [1999] ETMR 903 .… 23.10 Emanuele v Hedley (1997) 137 FLR 339 .… 25.3, 25.5 — v — (1998) 179 FCR 290 .… 25.25 — v — [1998] FCA 709 .… 6.59 Emap Elan Ltd v Pacific Publications Pty Ltd (1997) 37 IPR 1 .… 22.24 Emcorp Pty Ltd v ABC [1988] 2 Qd R 169 .… 5.1, 5.22 Emeh v Kensington, Chelsea & Westminster Area Health Authority [1985] QB 1012; [1984] 3 All ER 1044 .… 7.59, 9.15 Emerald Construction Co Ltd v Lowthian [1966] 1 All ER 1013 .… 21.6, 21.10 EMI (Australia) Ltd v BES [1970] 2 NSWR 238 .… 8.38, 8.40 Emmens v Pottle (1885) 16 QBD 354 .… 18.23, 18.26 Empresa Exportadora de Azucar v IANSA [1983] 2 Lloyd’s Rep 171 .… 4.10, 4.20 Encev v Encev (SC(Vic), BC 9706275, unreported) .… 9.15 Enever v R (1906) 3 CLR 969 .… 26.58, 26.59 England v Cowley (1873) LR 8 Exch 126 .… 4.31 English v Rogers [2005] NSWCA 327 .… 9.16 Entick v Carrington (1765) 2 Wils KB 275; 95 ER 807 .… 5.1, 6.49 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 .… 26.28, 29.34 Erven Warnink BV v J Townsend & Sons (Hull) Ltd [1979] AC 731; 2 All ER 927 .… 23.6, 23.9, 23.10, 23.11 Erwin v Iveco Trucks Australia Ltd (2010) 267 ALR 752 .… 29.32 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241; 142 ALR 750 .… 1.19, 13.29, 23.23 Esanda Finance Ltd v Gibbons [1999] NSWSC 1094 .… 4.15 Essendon Corporation v McSweeney (1914) 17 CLR 524 .… 7.34 Esso Australia Ltd v Victorian Workcover Authority (2000) 1 VR 246 .… 12.11 Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] AC 643; 1 All ER 37 .… 13.57 — v Kingswood Motors (Addlestone) Ltd [1974] QB 142; [1973] 3 All ER 1057 .… 21.15, 21.22 — v Mardon [1975] QB 819; 1 All ER 203 .… 13.21, 13.23 — v Southport Corporation [1953] 2 All ER 1204 .… 6.21, 6.22 — v — [1954] 2 QB 182; 2 All ER 561 .… 6.22 — v — [1956] AC 218; [1955] 3 All ER 864 .… 6.22 Esterhuizen v Allied Dunbar Assurance plc [1998] 2 FLR 668 .… 13.78 Etienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 .… 18.14 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 .… 17.4, 18.3 Eurymedon (The) [1938] P 41; 1 All ER 122 .… 10.5

Eutick v City of Canada Bay Council [2006] NSWCA 30 .… 8.10 Evans v Anderson [1992] 1 VR 411 .… 11.43, 11.46 — v Balog [1976] 1 NSWLR 36 .… 5.15, 14.49 — v Collins (1844) 5 QB 820; 114 ER 1459 .… 23.15 — v Finn (1904) 4 SR (NSW) 297 .… 14.34, 14.49 — v London Hospital Medical College [1981] 1 All ER 715 .… 25.1 — v Queanbeyan City Council[2011] NSWCA 230 .… 9.4 — v South Ribble Borough Council [1992] QB 757; 2 All ER 695 .… 6.27 — v Waitemata Pony Club [1972] NZLR 773 .… 8.14 Evatt v MLC (1969) 69 SR (NSW) 50 .… 13.32 Everett v Ribbands [1952] 2 QB 198; 1 All ER 823 .… 25.6 Everitt v Martin [1953] NZLR 298 .… 4.46 Evers v Bennett (1982) 31 SASR 228 .… 10.17 Evers, Ex parte; Re Leary (1945) 62 WN (NSW) 146 .… 6.44 Ewins v BHP Billiton Ltd (2005) 91 SASR 303 .… 11.28 Exchange Hotel v Murphy [1947] SASR 112 .… 2.4 Exchange Telegraph Co v Gregory & Co [1896] 1 QB 147 .… 21.17, 21.21 Exxon Valdez, Re 767 F Supp 1509 (D Alaska 1991) .… 13.56, 13.62 Eyre v New Zealand Press Association Ltd [1968] NZLR 736 .… 29.29 F F v R (1982) 29 SASR 437 .… 6.8 — v — (1983) 33 SASR 189 .… 6.8, 7.22, 8.2, 8.35 — v Wirral Metropolitan Borough Council [1991] Fam 69; 2 All ER 648 .… 24.10 F (Mental Patient: Sterilisation), Re [1990] 2 AC 1; [1989] 2 All ER 545 .… 3.5, 3.10, 6.10 Fabbi v Jones (1972) 28 DLR (3d) 224 .… 21.12 Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167 .… 22.40 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; 42 ALR 511 .… 12.15 — v Metropolitan Police Commissioner [1969] 1 QB 439; [1968] 3 All ER 442 .… 3.13, 3.16 FAI Allianz Insurance Ltd v Lang (2004) 42 MVR 482 .… 11.15 FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651 .… 29.40 — v Lucre (2000) 50 NSWLR 261 .… 7.51 — v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 .… 18.10 Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1 .… 19.78 Fairbairn Wright & Co v Levin & Co Ltd (1914) 34 NZLR 1 .… 21.25 Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052 .… 7.38

— v — [2003] 1 AC 32; [2002] 3 All ER 305 .… 1.14, 9.3, 9.6 Fairclough v Whipp [1951] 2 All ER 834 .… 3.19 Fairfax (John) & Sons Ltd v Kelly (1987) 8 NSWLR 131 .… 27.30 — v Punch (1980) 31 ALR 624 .… 18.7 Falkingham v Fregon (1899) 25 VLR 211 .… 5.6 Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 .… 10.27 Falvo v Australian Oztag Sports Association [2006] NSWCA 17 .… 8.6, 10.27 Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40–962 .… 22.34 Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 .… 13.68 Fanigun Pty Ltd v Woolworths Ltd [2006] 2 Qd R 366 .… 5.10 Fanzelow v Kerr (1896) 14 NZLR 660 .… 25.3 Farquhar v Bottom [1980] 2 NSWLR 380 .… 18.10 Farr v Schultz (1988) 1 WAR 94 .… 11.13, 11.20 Farral v Stokes (1954) 54 SR (NSW) 294 .… 8.15 Farrant v Thompson (1822) 5 B & A 826; 106 ER 1392 .… 4.4, 4.24 Farrell v Farrell [2009] NSWSC 1122 .… 10.10 Farrington v Thomson [1959] VR 286 .… 25.29, 25.31, 25.32 Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 .… 21.49, 21.53, 21.55 Fatur v IC Formwork Pty Ltd (2000) 155 FLR 70 .… 16.30, 29.38 Faucett v St George Bank Ltd (2003) Aust Torts Reports 81–699 .… 7.30 Faulkner v Bluett (1981) 52 FLR 115 .… 29.21 — v Keffalinos (1971) 45 ALJR 80 .… 9.21 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; 221 ALR 186 .… 18.8 Federal Commr of Taxation v Barrett (1973) 129 CLR 395 .… 26.4, 26.5 — v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 .… 26.3 Federation of Australian Accountants Inc v Australian Society of Accountants (1988) ATPR (Digest) 46–044 .… 22.19 Feldman v Buck [1966] SASR 236 .… 6.39 Felhaber v Rockhampton CC [2011] QSC 023 .… 8.10 Fellowes v Rother DC [1983] 1 All ER 513 .… 7.33 Femis-Bank (Anguilla) Ltd v Lazar [1991] Ch 391; 2 All ER 865 .… 21.51 Fenn v Paul (1932) 32 SR (NSW) 315 .… 25.17 Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 .… 14.18, 14.36 Fennings v Lord Grenville (1808) 1 Taunt 24 .… 4.34 Fenton v Scotty’s Car Sales Ltd [1968] NZLR 929 .… 16.14

Ferguson v Miller [1978] 1 NZLR 819 .… 5.12 — v Eakin [1997] NSWCA 106 .… 4.16 Ferrett v Worsley (1993) 61 SASR 234 .… 10.7, 10.13 Fersch v Power & Water Authority (1990) 101 FLR 78 .… 28.23 Fertinova Australia Pty Ltd v FJ and WJ Transport Pty Ltd [1995] QCA 499 .… 4.28 Ffrench v Sestili [2007] SASC 241 .… 26.53 Fido Dido Inc v Venture Stores (Retailers) Pty Ltd (1988) 16 IPR 365 .… 22.21 Field v Nott (1939) 62 CLR 660 .… 26.59 — v SA Soccer Assn Inc [1953] SASR 224 .… 14.22, 14.51 — v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96 .… 23.32 — v South Australian Soccer Assn [1953] SASR 224 .… 14.15 Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 .… 5.4, 5.19 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 .… 21.10 Filburn v The People’s Palace & Aquarium Co Ltd (1890) 59 LJ QB 471 .… 15.12 Filliter v Phippard (1847) 11 QB 347; 116 ER 506 .… 14.48 Findlay v Blaylock 1937 SC 21 .… 21.7 Fine Art Society v Union Bank of London (1886) 17 QBD 705 .… 4.24 Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 .… 4.3 Finlay v Rowlands (1987) Aust Torts Reports 80–113 .… 13.34 Finlay Stonemasonry Pty Ltd v JD & Sons Nominees Pty Ltd [2011] NTSC 37 .… 5.8 Finnigan v NZ Rugby Football Union Inc (No 2) [1985] 2 NZLR 181 .… 27.51 Fire & All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427; 21 ALR 375 .… 27.31 Firewatch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520 .… 22.7 First City Corp Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 .… 29.22 — v — [1990] 3 NZLR 265; [1993] AC 295; 3 All ER 626 .… 7.14, 29.22 First National Commercial Bank plc v Humberts [1995] 2 All ER 673 .… 28.17 Fischer v Stuart (1979) 25 ALR 336 .… 15.13 Fish v Kapur [1948] 2 All ER 176 .… 8.44 Fisher v Carrousel Motor Hotel (1967) 424 SW 2d 627 .… 3.13 — v Ellerton (FC(WA), 16 October 2001, BC200106302, unreported) .… 6.12, 6.49 — v Prince (1762) 3 Burr 1363 .… 4.41 — v Ruislip-Northwood Urban District Council [1945] KB 584 .… 7.35 Fitch v Hyde-Cates (1982) 150 CLR 482; 39 ALR 581 .… 11.54, 11.55 Fitter v Veal (1701) 12 Mod Rep 542; 88 ER 1506 .… 27.35 Fitzalan v Nicholson (1896) 13 WN (NSW) 51 .… 25.6

Fitzgerald v Boyle (1861) 1 QSCR 19 .… 25.27 — v Cooke Bourne (Farms) Ltd [1964] 1 QB 249; [1963] 3 All ER 36 .… 15.14 — v Hill [2008] QCA 283 .… 7.23 — v Lane [1987] QB 781; 2 All ER 455 .… 9.3 — v — [1989] AC 328; [1988] 2 All ER 961 .… 29.41 — v Northcote (1865) 4 F & F 656 .… 6.32 — v Penn (1954) 91 CLR 268 .… 9.6 Fitzjohn v Mackinder (1861) 9 CB (NS) 505; 142 ER 199 .… 25.3, 25.4 Fitzpatrick v Cooper Pty Ltd (1935) 54 CLR 200 .… 2.20 — v Jackson [1989] 2 Qd R 542 .… 29.23 — v Jobs Engineering [2007] WASCA 63 .… 8.24 Fkiaras v Fkiaras (2010) 77 NSWLR 468 .… 11.11 Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 .… 1.3, 17.15, 22.18, 22.50, 27.45 Flanagan v Houlihan [2011] IEHC 105 .… 7.30 Fleet v District Court of NSW [1999] NSWCCA 363 .… 6.38 Fleming v Securities Commission [1995] 2 NZLR 514 .… 13.38 Flemington v Smithers (1826) 2 C & P 292; 172 ER 131 .… 24.11 Flemming v Gibson (2001) 34 MVR 40 .… 28.31 Fletcher v National Mutual Life Nominees Ltd [1990] 1 NZLR 97 .… 7.20, 29.32 — v — [1990] 3 NZLR 641 .… 27.27 — v — [1993] AC 774; 2 All ER 1015 .… 27.27 — v Rylands (1866) LR 1 Ex 265 .… 2.18 — v Western National Life Insurance Co 89 Cal Rptr 78 (1970) .… 3.23 Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196 .… 23.7, 23.9, 23.11 Flett v Coulter (1903) 5 OLR 375 .… 15.10 Flounders v Millar [2007] NSWCA 238 .… 9.4, 9.6 Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; 163 ALR 744 .… 25.25 Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81–244 .… 4.18, 4.22, 4.31, 4.40 Fogg v McKnight [1968] NZLR 330 .… 2.21, 27.7 Fontaine v British Columbia (Official Administration) (1998) 156 DLR (4th) 577 .… 8.41 Fontin v Katapodis (1962) 108 CLR 177; [1963] ALR 582 .… 3.14, 6.15, 6.16, 27.12, 27.19 Fookes v Slaytor [1979] 1 All ER 137 .… 10.15 Foodlands Association Ltd v Mosscrop [1985] WAR 215 .… 24.3 Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58 .… 8.23

Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301 .… 14.1 Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241 .… 22.5 Ford v Ford (1887) 143 Mass 577 .… 6.5 Forde v Skinner (1830) 4 C & P 239 .… 3.11 Forrest v Australian Securities and Investments Commission (2012) 291 ALR 399 .… 22.31 Forsdick v Collins (1816) 1 Stark 173 .… 4.20 Forsdike v Stone (1868) LR 3 CP 607 .… 19.77 Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488 .… 10.18 — v — [1989] AC 852 .… 10.18 Forster v MacDonald (1995) 127 DLR (4th) 184 .… 25.3 — v Outred & Co [1982] 2 All ER 753 .… 28.16 Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429 .… 13.50, 13.54 Fosbroke-Hobbes v Airwork Ltd [1937] 1 All ER 108 .… 8.43 Foster v Public Trustee [1975] 1 NZLR 26 .… 23.28 — v Warblington Urban District Council [1906] 1 KB 648 .… 14.33 Foster James Pty Ltd v Dalton [2010] VSC 327 .… 7.57 Foti v Banque Nationale de Paris (1989) 54 SASR 354 .… 7.9, 13.34 Fouldes v Willoughby (1841) 8 M & W 540 .… 4.1, 4.18, 4.20, 4.21 Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705 .… 6.37 Fowler v Hollins (1872) LR 7 QB 616 .… 4.18 — v Lanning [1959] 1 QB 426; 1 All ER 290 .… 2.2, 2.3, 2.13, 2.14, 2.18, 6.3 Fowles v Eastern & Australia Steamship Co Ltd [1916] 2 AC 556 .… 26.59 Fox v Percy (2003) 214 CLR 118; 197 ALR 201 .… 8.36, 9.2 Foxeden Pty Ltd v IOOF Building Society Ltd [2003] VSC 356 .… 4.16 Foxtel Management Pty Ltd v Australian Video Retailers Ass’n Ltd (2004) 214 ALR 554 .… 22.15 France v Gaudet (1871) LR 6 QB 199 .… 4.40 Francis v Whatson [1994] 2 Qd R 584 .… 28.17 Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 .… 5.22 Franklin v Victorian Railways Commrs (1959) 101 CLR 197 .… 8.41, 8.43, 8.44 Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 .… 12.11 Fraser v Balfour (1918) 87 LJKB 1116 .… 6.57 — v Booth (1950) 50 SR (NSW) 113 .… 14.23 — v NRMA Holdings Ltd (1994) 52 FCR 1; 124 ALR 548 .… 23.39 — v — (1995) 55 FCR 452; 127 ALR 543 .… 23.39 — v Soy (1918) 44 DLR 437 .… 6.42

Fraser-Armstrong v Hadow (1994), The Times, 21 January .… 19.44 Fray v Blackburn (1863) 3 B & s 576 .… 6.51 Fred Wilkins & Bros Ltd v Weaver [1915] 2 Ch 322 .… 21.9 Freeman v Blewitt (1701) 1 Salk 409 .… 4.53 — v Home Office (No 2) [1983] 3 All ER 589 .… 3.7 — v — (No 2) [1984] QB 524; 1 All ER 1036 .… 3.7, 6.5, 6.7 — v — [1983] 3 All ER 589; [1984] QB 524 .… 6.7 — v Rosher (1849) 13 QB 780; 116 ER 1462 .… 26.22 French Knit Sales Pty Ltd v N Gold & Sons Pty Ltd [1972] 2 NSWLR 132 .… 27.6 French v Auckland City Corporation [1974] 1 NZLR 340 .… 14.27 — v Herald & Weekly Times Pty Ltd (No 2) (2010) 27 VR 171 .… 19.44 — v QBE Insurances (Australia) Pty Ltd (2011) 58 MVR 214 .… 10.12 Freudenstein v Marhop Pty Ltd [2010] NSWSC 724 .… 7.39 Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 .… 19.71 Fripp, Re (1996) 125 FLR 456 .… 12.15 Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547 .… 22.49, 22.50, 22.54 — v — (1983) ATPR 40–394 .… 22.50 Fritz v Hobson (1880) 14 Ch D 542 .… 14.49 Froom v Butcher [1976] QB 286; [1975] 3 All ER 520 .… 8.3, 10.7 Frost & Sutcliffe v Tuiara [2004] 1 NZLR 782 .… 1.3, 13.13 FS Evans & Sons Pty Ltd v Delany (1985) 58 LGRA 405 .… 7.34 Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 .… 20.11 Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd (1916) 21 CLR 181 .… 7.34 Furness v Adrium Industries Pty Ltd (1993) Aust Torts Reports 81–245 .… 4.38 Furniss v Cambridge Daily News Ltd (1907) 23 TLR 705 .… 19.41 G G v Attorney-General [1994] 1 NZLR 714 .… 7.14 G and M v Armellin [2008] ACTSC 68 .… 7.58 G(ED) v Hammer (2003) 230 DLR (4th) 554 .… 26.54 Gaba Formwork Contractors Pty Ltd v Turner Corp (1993) 32 NSWLR 175 .… 4.63, 4.64 — v Turner Corp Ltd (1991) 31 NSWLR 175 .… 4.40 Gabolinscy v Hamilton City Corp [1975] 1 NZLR 150 .… 4.42, 27.7, 28.10, 28.33 Gaca v Pirelli General plc [2004] 3 All ER 348 .… 11.22, 11.24 Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 .… 18.7, 19.21 Gaetani v Trustees of the Christian Brothers (1988) Aust Torts Reports 80–156 .… 9.2

Gala v Preston (1991) 172 CLR 243; 100 ALR 29 .… 6.59, 7.9, 10.28, 10.30 Galantine v Television NZ Ltd [1992] 3 NZLR 455 .… 18.15 Galashiels Gas Co v Millar [1949] AC 275; 1 All ER 319 .… 16.30 Galea v Gillingham [1987] 2 Qd R 365 .… 8.38, 15.14 Galland v Mineral Underwriters Ltd [1977] WAR 116 .… 21.51, 21.52 Galliard v Laxton (1862) B & s 363; 121 ER 1109 .… 6.36 Galoo Ltd v Bright Grahame Murray [1995] 1 All ER 16 .… 13.28, 13.38 Galsworthy v Reid (1911) 17 Arg LR 144 .… 27.4 Gambriell v Caparelli (1975) 54 DLR (3d) 661 .… 3.16, 6.17 Gammell v Wilson [1982] AC 27; [1980] 2 All ER 557 .… 11.55 Gandy v Jubber (1865) 5 B & s 485; 122 ER 911 .… 14.42 Gannon v Gray [1973] Qd R 411 .… 7.48 Gardiner v John Fairfax & Sons Ltd (1942) 42 SR (NSW) 171 .… 19.15, 19.25 — v Metcalf [1994] 2 NZLR 8 .… 15.8 — v Victoria [1999] 2 VR 461 .… 16.24 Garner v Morrall (1935) The Times, 31 October .… 8.44 Garnham, Harris and Elton v Alfred W Ellis (Transport) Ltd [1967] 2 All ER 940 .… 4.30 Garratt v Dailey (1955) 279 P 2d 1091 .… 3.3 Garrett v A-G [1997] 2 NZLR 332 .… 25.29, 25.31 Gartner v Kidman (1962) 108 CLR 12 .… 14.24 Gartside v Sheffield, Young & Ellis [1983] NZLR 37 .… 1.2, 13.7, 13.10, 13.14, 13.77 Gaskins v Davis (1894) 115 NC 85 .… 4.63 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600 .… 13.41, 22.47, 23.28 Gaunt v Fynney (1872) 8 Ch App 8 .… 14.8, 14.30 Gautret v Egerton (1867) LR 2 CP 371 .… 7.39 Gayler and Pope Ltd v B Davies & Son Ltd [1924] 2 KB 75 .… 2.2, 15.4 Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668 .… 25.1 Gazzard v Huchesson [1995] SASC 5068 .… 5.19 Geale v Glenhoun Holdings Pty Ltd (1985) ATPR 40–615 .… 22.30 Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 .… 7.31, 7.34 Gee v Metropolitan Railway Co (1873) LR 8 QB 161 .… 8.45 Geest plc v Lansiquot [2003] 1 All ER 383 .… 27.21 General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 .… 4.60, 4.63, 4.64 General Cleaning Contractors Ltd v Christmas [1953] AC 180; [1952] 2 All ER 1110 .… 10.30

General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164; 117 ALR 629 .… 23.38 Gent-Diver v Neville [1953] St R Qd 1 .… 10.4, 10.29 George v Erikson (1998) 27 MVR 323 .… 11.31 — v Home Office [2008] 4 All ER 1039 .… 10.6 — v Rockett (1990) 170 CLR 104; 93 ALR 483 .… 6.39 George Wimpey & Co Ltd v British Overseas Airways Corp [1955] AC 169; [1954] 3 All ER 661 .… 29.34 Georgeski v Owners Corp (2004) 62 NSWLR 534 .… 5.13 Gerard v Hope [1965] Tas SR 15 .… 6.51 Germanic (The) (1904) 196 US 589 .… 8.14 Gerrard v Crowe [1921] 1 AC 395 .… 6.23 Geyer v Downs (1977) 138 CLR 91; 17 ALR 408 .… 7.21, 7.29, 24.14 Geyer v Downs [1975] 2 NSWLR 835 .… 7.29 Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417 .… 7.57 Gibbons v Duffell (1932) 47 CLR 520 .… 6.51, 6.57, 19.35 — v Pepper (1695) 1 Ld Raym 38 .… 2.2 — v — (1695) 2 Salk 637 .… 3.8 Gibbs v Cruikshank (1873) LR 8 CP 454 .… 6.29, 27.36 Giblin v McMullen (1869) LR 2 PC 317 .… 8.30 Gibson v Parkes District Hospital (1991) 26 NSWLR 9 .… 1.13 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 .… 7.13, 7.49 Gilbert v Shanahan [1998] 3 NZLR 528 .… 28.16 — v Stone (1648) Sty 72; 82 ER 539 .… 3.6 Gilchrist v Gardner (1891) 12 LR (NSW) (L) 184 .… 25.5 — v Taylor [2004] NSWCA 476 .… 11.8 Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185 .… 26.5 Gilding v Eyre (1861) 10 CB (NS) 592; 142 ER 584 .… 25.5, 25.23 Giles v Rhind [2008] EWCA Civ 118 .… 4.42 Giles v Thompson [1994] 1 AC 142; [1993] 3 All ER 321 .… 25.34, 25.36, 25.37 — v Walker (1890) 24 QBD 656 .… 14.27 Giller v Procopets (2004) VSC 113 .… 7.42 — v — (2008) 24 VR 1 .… 3.23, 17.4, 27.13 Gillespie v Commonwealth (1991) 105 FLR 196 .… 8.4 — v Elliot [1987] 2 Qd R 509 .… 28.16 Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 .… 22.15

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 All ER 402 .… 6.9 Gillies v Procurator Fiscal, Elgin [2008] HCJAC 55 .… 6.38 Gilltrap v Autopromos Pty Ltd (1995) ATPR 41–394 .… 22.19 Gimson v Victorian Workcover Authority [1995] 1 VR 209 .… 1.13, 25.30 Giner v Public Trustee (1991) 105 FLR 410 .… 7.40 Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 .… 16.34 Gipps v Gipps [1978] 1 NSWLR 454 .… 23.32 Gipps v McElhone (1881) 2 LR (NSW) 18 .… 6.53, 19.32 Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 .… 7.30 Gittens v O’Brien (1986) 4 MVR 27 .… 10.4 Giumelli v Johnston (1991) Aust Torts Reports 81–085 .… 6.6 Glamorgan Coal Co Ltd v South Wales Miners’ Federation [1903] 2 KB 545 .… 21.18 Glanville v Sutton & Co Ltd [1928] 1 KB 571 .… 15.14 Glasgow Corporation v Muir [1943] AC 448; 2 All ER 44 .… 8.1, 8.5, 8.14, 8.31, 9.9, 10.9 — v Taylor [1922] 1 AC 44 .… 7.38, 8.29 Glasheen v Waverley Municipality (1990) Aust Torts Reports 81–016 .… 7.39 Glegg v Bromley [1912] 3 KB 474 .… 25.37 Glen v Abbott (1880) 6 VLR (L) 483 .… 4.5 Glenmont Investments Pty Ltd v O’Loughlin (No 2) (2000) 79 SASR 185 .… 26.32 — v — (No 3) (2001) 79 SASR 288 .… 29.32 Glenwood Lumber Co v Phillips [1904] AC 405 .… 4.63 Glinski v McIver [1962] AC 726; 1 All ER 696 .… 25.14 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25 .… 17.15, 22.30, 22.33 Glorie v WA Chip & Pulp Co Pty Ltd (1981) 39 ALR 67 .… 22.7 Glover v London and South Western Ry Co (1867) LR 3 QB 25 .… 3.14 Glyn Mills v E & W India Dock Co (1880) 6 QBD 475 .… 4.28 — v — (1882) 7 App Cas 591 .… 4.28 GMH Ltd v Whetstone (1988) 50 SASR 199 .… 11.9 Go v R (1990) 73 NTR 1 .… 3.33 Gobbart v West Australian Newspapers Ltd [1968] WAR 113 .… 19.5, 19.41 Goddard Elliott v Fritsch [2012] VSC 87 .… 7.57, 8.26 Godfrey v Gilbert [1936] NZLR 699 .… 9.6 — v Henderson (1944) 44 SR (NSW) 447 .… 19.49 — v New South Wales (2003) Aust Torts Reports 81–700 .… 7.30

— v — (No 2) [2003] NSWSC 275 .… 7.12 Godfrey Ltd v Ryles [1962] SASR 33 .… 8.45 Godley v Perry [1960] 1 All ER 36 .… 1.3 Goh Choon Seng v Lee Kim Soo [1925] AC 550 .… 26.41 Gokora Pty Ltd v Montgomery Jordan & Stevenson Pty Ltd (1986) ATPR 40–722 .… 22.29 Gold v Essex County Council [1942] 2 KB 293; 2 All ER 237 .… 26.7, 26.29 — v Haringey Health Authority [1988] QB 481; [1987] 2 All ER 888 .… 7.22, 8.27 Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 .… 21.54, 21.55 — v Stocks [2002] QDC 304 .… 9.2 Golder v Caledonian Railway Co (1902) 5 F (Ct of Sess) 123 .… 9.18 Goldie v Commonwealth [2004] FCA 156 .… 3.26 Goldman v Hargrave [1967] 1 AC 645; [1966] 2 All ER 989 .… 8.8, 14.27, 14.40 Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 .… 19.6, 19.17, 19.27 Goldsbro v Walker [1993] 1 NZLR 394 .… 22.28 Goldsmith v Bhoyrul [1998] QB 459; [1997] 4 All ER 268 .… 18.13 — v Sperrings Ltd [1977] 2 All ER 566 .… 18.19, 25.25 Goldsoll v Goldman [1914] 2 Ch 603 .… 21.17 — v — [1915] 1 Ch 292 .… 21.17 Gollan v Nugent (1987) 8 NSWLR 166 .… 6.58 Goodchild Fuel Distributors Pty Ltd v Holman (1992) 59 SASR 454 .… 21.8, 21.51 Goode v Thompson [2002] 2 Qd R 572 .… 11.16 Goodman v Boycott (1862) 2 B & s 1; 121 ER 975 .… 4.56 Goodsell v Murphy (2002) 36 MVR 408 .… 11.9 Goodwin v Ron Heath Tyre Service (SA) Pty Ltd (1999) 74 SASR 508 .… 4.5 Gordon v Harper (1796) 7 Term Rep 9 .… 4.4, 4.49 — v Moen [1971] NZLR 526 .… 13.26 — v Ross [2006] NSCWA 157 .… 9.4 — v Tamworth Jockey Club [2003] NSWCA 82 .… 7.30 — v Treadwell Stacey Smith [1996] 3 NZLR 281 .… 25.24 Gordon Hill Trust Ltd v Segall [1941] 2 All ER 379 .… 23.35 Gorman v H W Hodgetts & Co [1932] SASR 394 .… 4.17 Gorringe v Calderdale Metropolitan BC [2004] 1 WLR 1057 .… 7.33 Gorris v Scott (1874) LR 9 Ex 125 .… 16.26 Gorton v Australian Broadcasting Commn (1973) 1 ACTR 6 .… 19.73 — v Commonwealth [1992] 2 Qd R 603 .… 28.18

Gosden v Elphick (1849) 4 Exch 445 .… 3.34 Goss v Nicholas [1960] Tas SR 133 .… 6.17 Gough v Thorne [1966] 3 All ER 398 .… 8.15 Gould v Vaggelas (1985) 157 CLR 215; 56 ALR 31 .… 22.50, 23.28, 23.32 Goulding v Kirby [2002] NSWCA 393 .… 13.68 Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 All ER 70 .… 16.1 Government Insurance Office (NSW) v Fredrichberg (1968) 118 CLR 403 .… 2.20, 8.41, 8.49 — v Mackie (1990) Aust Torts Reports 81–053 .… 11.13 Governor of Pitcairn v Sutton [1995] 1 NZLR 426 .… 29.7 Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210; [1984] 3 All ER 529 .… 7.8 Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321 .… 11.10 Grace v Sheehan [2011] IEHC 163 .… 4.39 Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269 .… 6.56 Graham v Baker (1961) 106 CLR 340 .… 11.7, 11.22, 11.24 — v K D Morris & Sons Pty Ltd [1974] Qd R 1 .… 5.9, 5.20, 5.21, 27.37, 27.51 — v Peat (1801) 1 East 244 .… 5.14 — v Royal National Agricultural and Industrial Assoc of Queensland [1989] 1 Qd R 624 .… 7.62, 10.23 — v Saville [1945] 2 DLR 489 .… 6.7 — v Voigt (1989) 89 ACTR 11 .… 4.40, 27.7 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 .… 7.12, 7.13, 7.33, 7.34, 7.35, 7.36, 8.4, 8.13 Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 .… 5.5, 5.20 Grahame Allen & Sons Pty Ltd v Water Resources Commn [2000] 1 Qd R 523 .… 28.33 Grainger v Hill (1838) 4 Bing NC 212; 132 ER 769 .… 3.29, 4.20, 25.22, 25.23, 25.26 Grainger v Rossendale Holdings Ltd [1989] 2 NZLR 389 .… 15.10 Grainger v Williams [2005] WASC 286 .… 5.17 Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560; 1 All ER 865 .… 13.42, 23.36 Granby (Marquis of) v Bakewell UDC (1923) 87 JP 105 .… 14.49 Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 .… 16.15, 16.24 Grant v Australian Knitting Mills Ltd [1936] AC 85 .… 1.3, 7.4 — v National Coal Board [1956] AC 649; 1 All ER 682 .… 16.28 — v Sun Shipping Co Ltd [1948] AC 549; 2 All ER 238 .… 8.32, 9.17, 10.10 — v Thompson (1895) 72 LT 264 .… 25.34 Grantham Homes Pty Ltd v Interstate Permanent Building Society Ltd (1979) 37 FLR 191 .… 4.16,

6.14 Grassi v Brandt (1986) Aust Tort Reports 80–010 .… 8.14 Grasso v Love [1980] VR 163 .… 14.6 Gray v Barr [1971] 2 QB 554; 2 All ER 949 .… 12.12 — v M [1998] 2 NZLR 161 .… 19.33 — v Motor Accident Commn (1998) 196 CLR 1; 158 ALR 485 .… 1.6, 3.14, 27.7, 27.10, 27.13, 27.45 — v Thames Trains Ltd [2008] EWCA Civ 713 .… 9.15 — v — [2009] 1 AC 1339; 4 All ER 81 .… 6.59, 9.15, 9.22 Great Central Railway v Hewlett [1916] 2 AC 511 .… 7.31 Great Lakes Shire Council v Dederer [2006] NSWCA 101 .… 10.27 Great Lakes SS Co v Maple Leaf Milling Co (1924) 41 TLR 21 .… 9.12 Great Orme Tramways Co, Re (1934) 50 TLR 450 .… 29.20 Greater Nottingham Co-operative Society Ltd v Cementation Piling & Foundations Ltd [1989] QB 71; [1988]2 All ER 971 .… 13.13 Greater Taree City Council v Peck [2002] NSWCA 331 .… 10.27 Greatorex v Greatorex [2000] 4 All ER 769 .… 7.51 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 .… 18.10 Green v All Motors Ltd [1917] 1 KB 625 .… 4.27 — v Bartram (1830) 4 C & P 308 .… 6.18 — v Broadcasting Corp of New Zealand [1988] 2 NZLR 490 .… 23.7 — v — [1989] 2 All ER 1056 .… 23.7 — v Country Rugby Football League of NSW Inc [2008] NSWCA 26 .… 7.21 — v Goddard (1702) 2 Salk 641 .… 6.18 — v Victorian Workcover Authority [1997] 1 VR 364 .… 26.5, 26.6 Greening v Wilkinson (1825) 1 C & P 625 .… 4.40 Greenway v Fisher (1824) 1 C & P 190 .… 4.28 Greenwood v Bennett [1973] 1 QB 195; [1972] 3 All ER 586 .… 4.40, 4.63 — v Commonwealth [1975] VR 859 .… 26.17, 26.41, 26.46 Gregg v Scott [2005] 2 AC 176; 4 All ER 812 .… 9.3, 9.4 Gregory v Caltex Oil (Australia) Pty Ltd (1994) Aust Torts Reports 81–306 .… 20.13 — v Duke of Brunswick (1844) 6 M & G 953; 134 ER 1178 .… 21.44 — v Gollan [2007] NZHC 1437 .… 5.5 — v Piper (1829) 9 B & C 591 .… 5.2 — v Portsmouth City Council [2000] 1 AC 419; 1 All ER 560 .… 25.18, 25.21 — v Rangitikei District Council [1995] 2 NZLR 208 .… 7.32, 23.38

Gregory’s (Properties) Pty Ltd v Muir (1993) 17 MVR 86 .… 7.62 Greig v Greig [1966] VR 376 .… 5.2, 5.12, 5.19, 27.7 Greig v Insole [1978] 3 All ER 449 .… 21.5, 21.6, 21.10, 21.17, 21.19 Greyvensteyn v Hattingh [1911] AC 335 .… 6.23 Grierson v ACT [2011] ACTSC 113 .… 8.33 Griffin v Coles Myer Pty Ltd [1992] 2 Qd R 478 .… 8.5, 9.2 Griffith District Hospital v Hayes (1962) 108 CLR 50 .… 8.46, 8.48 Griffiths v Commonwealth (1983) 50 ACTR 7 .… 9.22 — v Doolan [1959] Qd R 304 .… 8.15 — v Earl of Dudley (1882) 9 QBD 357 .… 11.38 — v Haines [1984] 3 NSWLR 653 .… 26.59 — v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 .… 1.19, 11.15, 11.16, 11.19, 24.13 — v Queensland Newspapers Pty Ltd [1993] 2 Qd R 367 .… 19.50 Grill v General Iron Screw Collier Co (1866) LR 1 CP 600 .… 8.30 Grimwade v Victoria (1997) 90 A Crim R 526 .… 25.11, 25.23, 25.24, 26.59 Grincelis v House (1998) 84 FCR 190; 156 ALR 443 .… 11.16 — v — (2000) 201 CLR 321; 173 ALR 564 .… 11.15, 27.30 Grinham v Willey (1859) 4 H & N 496 .… 3.34 Grinnell v Wells (1844) 7 Man & G 1033; 135 ER 419 .… 24.10 Grinsted v Hadrill [1953] 1 All ER 1188 .… 8.37 Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 .… 29.41 Grobbelaar v News Group Newspapers Ltd [2002] 4 All ER 732 .… 19.77 Gronow v State Government Insurance Office (Qld) [1980] Qd R 425 .… 11.58 Groom v Crocker [1939] 1 KB 194; [1938] 2 All ER 394 .… 19.53 Grosvenor Hotel Co v Hamilton [1894] 2 QB 836 .… 14.49 Groves v Commonwealth (1982) 150 CLR 113; 40 ALR 193 .… 20.16, 29.6 — v Lord Wimborne [1898] 2 QB 402 .… 16.3, 16.21, 16.33 Grovewood Holdings plc v James Capel & Co Ltd [1995] Ch 80; [1994] 4 All ER 417 .… 25.37 Grundmann v Georgeson (1996) Aust Torts Reports 81–396 .… 18.5, 19.26 Guerin v Rossiter (1984) 37 SASR 312 .… 10.11 Guest v Warren (1854) 9 Ex 379; 156 ER 161 .… 27.361 Guide Dogs Owners’ & Friends’ Assoc Inc v Guide Dogs Assoc of NSW Inc (1998) 42 IPR 481 .… 23.8 Guise v Kouvelis (1947) 74 CLR 102 .… 19.48, 19.56 Gulf Oil (Great Britain) Ltd v Page [1987] Ch 327; 3 All ER 14 .… 21.51

Gullifer v Pohto [1978] 2 NSWLR 353 .… 11.44, 11.51 Gumina v Williams (No 2) (1990) 3 WAR 351 .… 19.3 Gunston v Lawley (2008) 20 VR 33 .… 13.76 Gurdag v B s Stillwell Ford Pty Ltd (1985) 8 FCR 526 .… 22.50 Guthrie v Spence (2009) 78 NSWLR 225 .… 28.32 Gutman v McFall (2004) 61 NSWLR 599 .… 26.19 Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369 .… 19.4, 19.47 Guy v Churchill (1888) 40 Ch D 481 .… 25.42 GWK Co Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 .… 21.28 Gwydir v Peck [1983] 1 Qd R 351 .… 11.43 Gwynne v Wairarapa Times-Age Co Ltd [1972] NZLR 586 .… 18.4 H H v Crimes Compensation Tribunal [1997] 1 VR 608 .… 12.16 — v Pennell (1987) 46 SASR 158 .… 7.21, 7.29, 8.16 — v R [1996] 1 NZLR 299 .… 2.14, 3.7 H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422; 3 ALR 465 .… 16.34 Haber v Walker [1963] VR 339 .… 9.13, 9.14, 11.36 Habib v Commonwealth (2010) 183 FCR 62; 265 ALR 50 .… 6.55 — v — (No 2) (2009) 175 FCR 350; 254 ALR 250 .… 3.23 — v Nationwide News Pty Ltd (2010) 76 NSWLR 299 .… 19.7 Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417 .… 2.11, 2.15, 2.17, 2.20, 2.22, 6.18, 7.37, 7.38, 7.39, 7.40 Haddow v Duke Co (NL) (1892) 18 VLR 155 .… 4.39, 4.40 Haddrick v Lloyd [1945] SASR 40 .… 6.18 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 .… 27.45 Hadzel v De Waldorf (1970) 16 FLR 174 .… 19.9 Hahn v Conley (1971) 126 CLR 276 .… 7.4, 7.23, 24.16 Haig v Bamford (1976) 72 DLR (3d) 68 .… 13.25 Haileybury College v Emanuelli [1983] 1 VR 323 .… 8.6, 8.8, 8.25 Haines v Bendall (1991) 172 CLR 60; 99 ALR 385 .… 27.31 Hale v Hants & Dorset Motor Services Ltd [1947] 2 All ER 628 .… 9.17 Haley v London Electricity Board [1965] AC 778; [1964] 3 All ER 185 .… 8.29 Hall v Alice Springs Veterinary Clinic Pty Ltd (1989) 98 FLR 85 .… 11.42 — v Beckenham Corporation [1949] 1 KB 716; 1 All ER 423 .… 14.36, 14.37 — v Booth (1834) 3 Nev & M KB 316 .… 6.45

— v Cramer (2003) 40 MVR 477 .… 11.22 — v Hollander (1825) 4 B & C 660; 107 ER 1206 .… 24.11 — v Leyshon (1895) 6 QLJ 232 .… 29.12 — v North Eastern Ry Co (1875) LR 10 QB 437 .… 10.24 — v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 .… 18.14, 18.22 — v Whatmore [1961] VR 225 .… 7.24, 29.4 Hall & Co Ltd v Pearlberg [1956] 1 All ER 297 .… 27.23 Hall (JE) Ltd v Barclay [1937] 3 All ER 620 .… 4.38 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 .… 17.9, 23.2 Halliday v Holgate (1868) LR 3 Exch 299 .… 4.9 — v Nevill (1984) 155 CLR 1; 57 ALR 331 .… 5.5, 6.38 Halligan v Drinkwater (1991) 61 SASR 185 .… 11.47, 11.51 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 .… 14.9, 14.34, 14.54 Halstead v Mathieson [1919] VLR 362 .… 15.8 Halton v Morton (1921) 61 DLR 365 .… 15.10 Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 .… 11.46 Hamble Fisheries Ltd v L Gardner & Sons Ltd [1999] 2 Lloyd’s Rep 1 .… 13.64 Hambley v Shepley (1967) 63 DLR (2d) 94 .… 3.7 Hambrook v Stokes Brothers [1925] 1 KB 141 .… 7.48, 7.49 Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92 .… 25.24 — v — (No 2) (1995) Aust Torts Reports 81–334 .… 25.24 Hamilton v Ford Motor Credit Co 502 A 2d 1057 (1986) .… 3.23 — v Hordern (1903) 3 SR (NSW) 139 .… 25.4 — v Kaljo (1989) 17 NSWLR 381 .… 28.33 — v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 .… 8.4 — v Papakura District Council [2000] 1 NZLR 265 .… 27.15 — v — [2002] 3 NZLR 308 .… 14.49 Hamlin v Bruce Stirling Ltd [1993] 1 NZLR 374 .… 27.7 Hamps v Darby [1948] 2 KB 311; 2 All ER 474 .… 4.46, 6.18 Hampton Court Ltd v Crooks (1957) 97 CLR 367 .… 8.5 Hanchett-Stamford v Attorney-General [2009] Ch 173; [2008] 4 All ER 323 .… 29.11 Hancock v Wallace (2000) 34 MVR 289 .… 7.48 Handcock v Baker (1800) 2 Bos & P 260 .… 6.17 Hanflex Pty Ltd v NS Hope & Associates [1990] 2 Qd R 218 .… 13.34 Hanimex Pty Ltd v Kodak (A’asia) Pty Ltd (1982) 1 TPR 1 .… 22.15

Haniotis v Dimitriou [1983] 1 VR 498 .… 6.25 Hankin v Jacobson [1964] Tas SR 51 .… 27.36 Hannah v Peel [1945] KB 509; 2 All ER 288 .… 4.13 — v MacLean (1989) 9 MVR 219 .… 10.7 Hanrahan v Ainsworth (1985) 1 NSWLR 370 .… 25.26 — v — (1990) 22 NSWLR 73 .… 19.52, 25.23 Hansen v Burrum Shire Council [1953] St R Qd 178 .… 14.46 — v Cole (1891) 9 NZLR 272 .… 6.32, 6.33 — v Gloucester Developments Pty Ltd (1991) Aust Torts Reports 81–067 .… 5.15 Hansen Beverage Co v Bickfords (Aust) Pty Ltd (2008) 171 FCR 579; 251 ALR 1 .… 23.7 Hanson v Matthew Bros Contractors Ltd (1990) 55 SASR 183 .… 29.37 — v Motor Accidents Insurance Board (1987) 6 MVR 131 .… 10.28 Harbour Radio Pty Ltd v Keysar Trad (2012) 292 ALR 192 .… 19.44 Hardaker v Idle District Council [1896] 1 QB 335 .… 26.35 Hardie Finance Corp Pty Ltd v Ahern (No 3) [2010] WASC 403 .… 5.1, 5.5, 21.30 Hardin v Ridges [1983] 2 NSWLR 586 .… 15.21 Harding v Essay (2005) 30 WAR 1 .… 18.15, 19.44 — v Lithgow Corporation (1937) 57 CLR 186 .… 28.36, 11.39 Hardy v Ryle (1829) 9 B & C 603; 109 ER 224 .… 28.9 Hargrave v Goldman (1963) 110 CLR 40 .… 7.4, 7.8, 7.18, 7.20, 7.25, 8.6, 14.1, 14.17, 14.27, 14.43, 14.48 — v — [1967] 1 AC 645; [1966] 2 All ER 989 .… 14.48 Harkianakis v Skalkos (1999) 47 NSWLR 302 .… 19.63 Harnett v Bond [1925] AC 669 .… 3.29, 27.16 Harper v Charlesworth (1825) 4 B & C 574 .… 5.11 — v Godsell (1870) LR 5 QB 422 .… 4.34 — v Gray & Walker [1985] 2 All ER 507 .… 29.34 — v Haden & Sons [1933] Ch 298 .… 14.54 — v Phillips [1985] WAR 100 .… 11.54 Harrington (Earl of) v Derby Corporation [1905] 1 Ch 205 .… 28.21 Harris v 718932 Pty Ltd (2003) 56 NSWLR 276 .… 18.19 — v Brisco (1886) 17 QBD 504 .… 25.39 — v Carnegie’s Pty Ltd [1917] VLR 95 .… 14.9, 14.10, 14.30, 14.34, 14.38, 26.23 — v Commercial Minerals Ltd (1996) 186 CLR 1; 135 ALR 353 .… 11.24 — v Grigg [1988] 1 Qd R 514 .… 24.3

— v James (1876) 45 LJ QB 545 .… 14.37 — v Wyre Forest District Council [1988] QB 835; 1 All ER 691 .… 10.24 — v — [1990] 1 AC 831; [1989] 2 All ER 514 .… 10.24 Harrison v British Railways Board [1981] 3 All ER 679 .… 7.27 — v Bush (1856) 5 E & B 344; 119 ER 509 .… 19.43 — v Duke of Rutland [1893] 1 QB 142 .… 5.8 — v National Coal Board [1951] AC 639; 1 All ER 1102 .… 8.35, 16.18, 16.32 — v Southwark & Vauxhall Water Co [1891] 2 Ch 409 .… 14.21, 14.29 Harrisons Group Holdings Ltd v Westpac Banking Corp (1989) 51 SASR 36 .… 4.38, 27.15 Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 .… 7.11, 7.16, 7.60 Harrop v Hirst (1868) LR 4 Ex 43 .… 14.6 Harry M Miller Attractions Pty Ltd v Actors & Announcers Equity Association [1970] 1 NSWR 614 . … 21.23 Hart v A-G (Tas) (SC(Tas), Burbury CJ, 29 May 1959, unreported) .… 29.18 — v Hall & Pickles Ltd [1969] 1 QB 405; [1968] 3 All ER 291 .… 29.34 — v Herron (1984) Aust Torts Reports 80–201 .… 2.14, 6.8 Hartley v Mayoh & Co [1954] 1 QB 383; 1 All ER 375 .… 16.29, 9.17 Hartley Poynton Ltd v Ali (2005) 11 VR 568 .… 11.54 Harvey v Birrell (1878) 12 SALR 58 .… 6.48 — v Derrick [1995] 1 NZLR 314 .… 6.51, 6.52 — v Pennell (1986) 43 SASR 221 .… 7.21 — v R G O’Dell Ltd [1958] 2 QB 78; 1 All ER 657 .… 29.39 — v Shire of St Arnaud (1879) 5 VLR (L) 312 .… 27.18 — v Young (1602) Yelv 20; 80 ER 15 .… 23.14 Hasaganic v Minister of Education (1973) 5 SASR 554 .… 24.4 Haseldine v CA Daw & Son Ltd [1941] 2 KB 343; 3 All ER 156 .… 7.5, 8.22, 26.34 Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434 .… 6.47 Hathaway v Thorpe [2006] NSWCA 163 .… 10.17 Hatzinikolaou v Snape (1989) Aust Tort Reports 80–262 .… 25.9, 25.10 Havelburg v Brown [1905] SALR 1 .… 7.20 Havenaar v Havenaar [1982] 1 NSWLR 626 .… 9.8, 9.13 Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 Hawkes Bay & East Coast Aero Club Inc v McLeod [1972] NZLR 289 .… 10.23 Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 .… 14.25 Hawkins v Clayton (1986) 5 NSWLR 109 .… 1.7

— v — (1988) 164 CLR 539; 78 ALR 69 .… 1.2, 7.9, 7.10, 7.11, 7.19, 7.20, 10.18, 13.7, 13.13, 13.35, 23.19, 28.10, 28.12, 28.15, 28.18, 28.21, 28.33 Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 .… 26.10 Haynes v G Harwood & Sons [1935] 1 KB 146; [1934] All ER Rep 103 .… 7.25, 7.26, 8.21, 9.14, 10.30 Hayward v Georges Ltd [1966] VR 202 .… 9.10, 26.43, 26.53 — v O’Keefe [1993] 1 NZLR 181 .… 3.27, 6.39 — v Thompson [1982] QB 47; [1981] 3 All ER 450 .… 18.15 Hazell v Parramatta CC [1968] 1 NSWR 165 .… 6.38 HE Dibble Ltd v Moore [1970] 2 QB 181; [1969] 3 All ER 1465 .… 4.31 Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 .… 4.10, 4.40, 4.64, 5.6, 27.11 Healy v Askin [1974] 1 NSWLR 436 .… 18.16 — v Munn (1991) 56 SASR 329 .… 10.17 Heap v Ind Coope & Allsopp Ltd [1940] 2 KB 476; 3 All ER 634 .… 14.42 Heath v Keys (1984) 134 NLJ 888 .… 5.15 Heaton v AXA Equity & Law Life Assurance Society plc [2002] 2 AC 329; 2 All ER 961 .… 29.28 Heaven v Pender (1883) 11 QBD 503 .… 7.2, 7.4, 7.5, 8.14 Hebditch v MacIlwaine [1894] 2 QB 54 .… 19.43 Heddon v Evans (1919) 35 TLR 642 .… 6.57 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 .… 7.5, 7.11, 13.6, 13.10, 13.12, 13.19, 13.21, 13.23, 13.25, 13.36, 13.67, 13.76, 23.12, 23.16, 23.26 Heffernan v Occidental Minerals Corp [1978] 2 NSWLR 412 .… 11.43 Hegarty v Shine (1878) 14 Cox CC 145 .… 6.7, 6.59 Heil v Rankin [2001] QB 272; [2000] 3 All ER 1173 .… 11.28 Heilbut, Symons & Co v Buckleton [1913] AC 30 .… 23.16 Helm v Thames-Coromandel DC [2006] DCR 524 .… 7.34 Helman v Horsham and Worthing Assessment Committee [1949] 2 KB 335; 1 All ER 776 .… 5.11 Helson v McKenzies (Cuba Street) Ltd [1950] NZLR 878 .… 6.14 Helstan Securities Ltd v Hertfordshire County Council [1978] 3 All ER 262 .… 4.7 Hemmens v Wilson Browne [1995] Ch 223; [1993] 4 All ER 826 .… 13.79 Henderson v Broomhead (1859) 4 H & N 569; 157 ER 964 .… 25.1 — v Henry E Jenkins & Sons [1970] AC 282; [1969] 3 All ER 756 .… 8.42 — v McCafferty [2002] 1 Qd R 170 .… 25.29 — v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 All ER 506 .… 1.3, 7.13, 10.18, 13.13, 13.22, 13.76, 27.46 — v Public Transport Commission (NSW) (1981) 37 ALR 29 .… 10.10

— v Radio Corp Pty Ltd [1960] SR (NSW) 576 .… 23.7, 23.11 — v Thompson [1934] NZLR 444 .… 18.7 Henderson & Co v Williams [1895] 1 QB 521 .… 4.31 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 .… 22.43, 23.3, 23.27 — v —(1989) 89 ALR 539 .… 23.28 Henley v Cameron [1949] LJR 989 .… 10.6 — v Eyles (1908) 8 SR (NSW) 23 .… 27.19 — v Mayor of Lyme (1828) 5 Bing 91; 130 ER 995 .… 25.27 Henry Berry and Co Pty Ltd v Rushton [1937] St R Qd 109 .… 4.51 Henry v Perry [1964] VR 174 .… 11.41 — v Thompson [1989] 2 Qd R 412 .… 27.7, 27.10 — v TVW Enterprises Ltd (1990) 3 WAR 474 .… 18.14, 27.10 Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253 .… 9.4, 9.6 Henson v Perth Hospital (1939) 41 WALR 15 .… 26.7 Henwood v Harrison (1872) LR 7 CP 606 .… 19.14 — v Municipal Tramways Trust (SA) (1938) 60 CLR 438 .… 6.58, 10.6 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 .… 18.5, 18.6 Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 .… 19.81 — v Popovic (2003) 9 VR 1 .… 19.21, 19.63, 19.64, 19.81 Hercules v Phease [1994] 2 VR 411 .… 19.34 Hercules Management Ltd v Ernst & Young (1997) 146 DLR (4th) 577 .… 13.28 Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771 .… 3.31 — v — [1915] AC 67 .… 3.27, 3.31, 6.13 Herijanto v Refugee Review Tribunal (2000) 170 ALR 379 .… 6.51 Heritage Real Estate Pty Ltd v ABC (SC(NSW), Sharpe J, 21 July 1992, unreported) .… 5.1, 5.22 Herniman v Smith [1938] AC 305 .… 25.9 Herring v Boyle (1834) 1 Cr M & R 377 .… 3.33 Herrington v British Railways Board [1972] AC 877 .… 7.38, 8.9 Hetherington v Mirvac Pty Ltd (1999) Aust Torts Reports 81–514 .… 7.39 Heugh v London and Northwestern Ry Co (1870) LR 5 Exch 51 .… 4.29 Hewitt v Bernhardt (1979) 21 SASR 510 .… 7.42 — v Bonvin [1940] 1 KB 188 .… 26.17 — v Queensland Newspapers Pty Ltd (SC(ACT), Higgins J, 5 June 1995, unreported) .… 18.7, 18.8 Heyden v Smith (1610) 2 Brownl 329 .… 4.46 Heydon v NRMA Ltd (2001) 51 NSWLR 1 .… 8.27

Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 .… 19.21, 19.63, 19.64 Hickman v Maisey [1900] 1 QB 752 .… 5.1, 5.8 Hicks v British Transport Commission [1958] 2 All ER 39 .… 10.9 — v Faulkner (1881) 8 QBD 167 .… 6.39, 25.8 — v — (1882) 46 LT 127 .… 6.39, 25.8 — v Lake Macquarie CC (1992) 77 LGRA 261 .… 14.18 Hickson v Goodman Fielder Ltd (2009) 237 CLR 130; 253 ALR 405 .… 10.18 Hiddle v National F & M Insurance Co of NZ (1896) 17 LR (NSW) 46 .… 8.38 Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 .… 15.15, 15.17, 15.18, 15.23, 26.23, 29.38 Higgs v Booth (SC(WA), 29 August 1986, unreported) .… 6.31 Hilbery v Hatton (1864) 2 H & C 822; 159 ER 341 .… 26.22 Hill v Archbold [1968] 1 QB 686; [1967] 3 All ER 110 .… 25.40 — v Balkind [1918] NZLR 740 .… 18.18 — v Chief Constable of the South Yorkshire Police [1990] 1 All ER 1046 .… 6.38 — v Chief Constable of West Yorkshire [1989] 1 AC 53; [1988] 2 All ER 238 .… 7.25, 7.30 — v Comben [1993] 1 Qd R 603 .… 19.21 — v Forrester (2010) 79 NSWLR 470 .… 11.17 — v National Bank of New Zealand Ltd [1985] 1 NZLR 736 .… 1.3 — v Perrott (1810) 3 Taunt 274; 128 ER 109 .… 27.47 — v Reglon Pty Ltd [2007] NSWCA 295 .… 4.26 — v Tupper (1863) 2 H & C 121 .… 5.13 — v Van Erp (1997) 188 CLR 159; 142 ALR 687 .… 1.2, 7.9, 7.10, 7.12, 13.7, 13.14, 13.15, 13.72, 13.77, 13.78 Hill v Reglon Pty Ltd [2007] NSWCA 295 .… 4.7 Hillesden Securities Ltd v Ryjack Ltd [1983] 2 All ER 184 .… 4.40 Hillier v Leitch [1936] SASR 490 .… 2.7, 3.2 Hilton v James Smith & Sons (Norwood) Ltd (1979) 251 EG 1063 .… 14.37 — v Wallace (1989) Aust Torts Reports 80–231 .… 6.6 Hinkley v Star City Pty Ltd (2011) 284 ALR 154 .… 5.13 Hinz v Berry [1970] 2 QB 40; 1 All ER 1074 .… 7.42, 7.48, 11.40, 27.8 Hiort v Bott (1874) LR 9 Exch 86 .… 4.29 Hiort v London and Northwestern Ry Co (1879) 4 Ex D 188 .… 4.3, 4.41 Hird v Gibson [1974] Qd R 14 .… 9.8 Hirst v Nominal Defendant [2005] 2 Qd R 133 .… 10.13, 10.30 — v — [2005] QCA 65 .… 9.14

Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169; 1 All ER 350 .… 21.8 Hoare v Rudd (1989) 9 MVR 229 .… 10.7 Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 .… 4.16 Hobbs v A Tinling & Co Ltd [1929] 2 KB 1 .… 19.77 — v Motor Accident Commission of South Australia (2008) 24 NTLR 27 .… 12.34 Hobson v AG [2007] 1 NZLR 374 .… 7.14, 7.24, 25.29, 25.31 Hocking v Bell (1945) 71 CLR 430 .… 8.37, 8.38 Hodder v Town of Port Headland [2011] WADC 145 .… 10.11 Hodges v Frost (1984) 53 ALR 373 .… 11.19 Hodgson v Bulpit (1880) 6 VLR (L) 440 .… 18.4 — v Crane (2002) 55 NSWLR 199 .… 11.31 Hodsoll v Stallebrass (1840) 11 Ad & E 301; 113 ER 429 .… 20.12 Hoebergen v Koppens [1974] 2 NZLR 597 .… 6.14, 27.12 Hoffmueller v Commonwealth (1981) 54 FLR 48 .… 9.5, 9.8, 9.11 Hogan v A G Wright Pty Ltd [1963] Tas SR 44 .… 5.3, 5.16, 5.19, 27.15 — v Gill (1992) Aust Torts Reports 81–182 .… 2.14, 8.33, 29.18 — v Koala Dundee Pty Ltd (1988) 83 ALR 187 .… 22.21, 23.7 — v Pacific Dunlop Ltd (1988) 83 ALR 403 .… 22.21, 22.46, 23.7 — v — (1989) 23 FCR 553; 87 ALR 14 .… 23.7 Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836; 2 All ER 705 .… 14.18, 14.41 Holden v Chief Constable of Lancashire [1987] QB 380; [1986] 3 All ER 836 .… 3.37 Holding v Jennings [1979] VR 289 .… 19.32 Hole v Chard Union [1894] 1 Ch 293 .… 27.37 — v Hocking [1962] SASR 128 .… 9.11, 9.19 — v Sittingbourne & Sheerness Ry Co (1861) 6 H & N 488; 158 ER 201 .… 26.35 — v Williams (1910) 10 SR (NSW) 638 .… 6.33 Holford v Bailey (1849) 13 QB 426; 116 ER 1325 .… 5.7 Holgate v Lancashire Hospital [1937] 4 All ER 19 .… 7.30 Holland v Lampen-Wolff [2000] 3 All ER 833 .… 29.8 — v Metropolitan Health Services Board [2001] WASCA 155 .… 28.31 — v Saskatchewan (2008) 294 DLR (4th) 193 .… 16.7 Holland (John) (Constructions) Pty Ltd v Jordin (1985) 36 NTR 1 .… 20.20 Holland House Property Investments Ltd v Crabbe [2008] CSIH 40 .… 6.51 Hollington v F Hewthorn Ltd [1943] 1 KB 587; 2 All ER 35 .… 19.4

Hollins v Fowler (1875) LR 7 HL 757 .… 4.18, 4.21, 4.24, 4.28, 4.30 Hollis v P H & D Stephens Investments Pty Ltd (1985) 8 FCR 576 .… 23.39 — v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 .… 26.1, 26.4, 26.6, 26.26, 26.39 Holloway v McFeeters (1956) 94 CLR 470 .… 8.38, 8.40 — v Tasmania (2006) 15 Tas R 127 .… 26.59 Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468; 1 All ER 825 .… 14.23 Holmes v Bagge (1853) 1 E & B 782 .… 6.18 — v Jones (1907) 4 CLR 1692 .… 23.32 — v Mather (1875) LR 10 Ex 261 .… 2.2, 2.18, 3.8 — v Wilson (1839) 10 Ad & El 503 .… 5.4 Holt v Wynter (2000) 49 NSWLR 128 .… 28.25 Holtby v Brigham & Cowan (Hull) Ltd [2000] EWCA Civ III .… 9.17 Holtham v Metropolitan Police Commissioner (1987) The Times, 28 November .… 6.39 Homburg Houtimport BV v Agrosin Pte Ltd [2003] 1 Lloyd’s Rep 571 .… 13.55 Home Office v Dorset Yacht Co Ltd [1970] AC 1004; 2 All ER 294 .… 9.16 — v Mohammed [2011] EWCA Civ 351 .… 7.33 Homeowners Insurance Pty Ltd v Job (1983) 2 ANZ Insurance Cases 60–535 .… 27.29 Homestead Award Winning Homes Pty Ltd v South Australia (1997) 72 SASR 299 .… 19.41 Hondros, Re [1973] WAR 1 .… 12.18 Honey v Australian Airlines Ltd (1990) 18 IPR 185 .… 22.21 Honeywill & Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191 .… 26.32 Hook v Cunard Steamship Co Ltd [1953] 1 All ER 1021 .… 3.37, 6.34 Hooper v Lane (1847) 10 QB 546 .… 6.47 Hoover (Aust) Pty Ltd v Email Ltd (1991) 104 ALR 369 .… 22.15 Hopkins v Crowe (1836) 4 Ad & El 774 .… 3.34 Hopper v Reeve (1817) 7 Taunt 698; Garratt v Dailey (1955) 279 P 2d 1091 .… 3.13 Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 .… 2.23, 6.14, 6.18 Hornberg v Horrobin [1997] QSC 207 .… 7.21 Horne v R [1947] NZLR 538 .… 26.10 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; 18 ALR 639 .… 22.4, 22.19 Horrocks v Lowe [1975] AC 135; [1974] 1 All ER 662 .… 19.49, 19.50, 19.51, 19.53, 19.54 Horsley v Maclaren (The Ogopogo) (1971) 22 DLR (3d) 545 .… 7.25 Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360 .… 4.4 Hosie v De Ferro (1984) 3 BPR 9418 .… 14.49

Hosking v De Havilland Aircraft Co Ltd [1949] 1 All ER 540 .… 16.18, 26.23 — v Runting [2005] 1 NZLR 1 .… 17.4 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 .… 21.5, 21.6, 21.7 Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 .… 22.15, 22.45 Hotson v East Berkshire Area Health Authority [1987] AC 750; 2 All ER 909 .… 9.4 Hough v London Express Newspaper Ltd [1940] 2 KB 507; 3 All ER 31 .… 18.8, 18.18 Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694; 2 All ER 159 .… 4.32, 4.56 Houghton v Oakley (1900) 21 LR (NSW) (L) 26 .… 25.16, 25.19, 25.21 Houghton and Franciosy, Re (1978) 68 Cr App R 197 .… 6.45 Hounsome v Vancouver Power Co (1913) 9 DLR 823 .… 14.38 Hounsome v Vancouver Power Co (1914) 19 DLR 200 .… 14.38 Housecroft v Burnett [1986] 1 All ER 332 .… 11.8 Houston v Buchanan (1940) SC (HL) 17 .… 16.12 How v Jones [1953] SASR 82 .… 14.48 — v Mansfield [1925] NZLR 91 .… 27.11 Howard v Harris (1884) 1 Cab & El 253 .… 4.32, 4.59 — v Howard (1885) 2 WN (NSW) 5 .… 18.18 — v Jarvis (1958) 98 CLR 177 .… 7.24 — v Loney [1956] Tas SR 57 .… 24.12 — v Wing [2000] TASSC .… 6.17 Howard E Perry and Co Ltd v British Railways Board [1980] 2 All ER 579 .… 4.31 Howard Electric Ltd v A J Mooney Ltd [1974] 2 NZLR 762 .… 14.9, 14.34, 27.15 Howard Perry & Co Ltd v British Railways Board [1980] 1 WLR 1375 .… 4.60 Howden v Ministry of Transport [1987] 2 NZLR 747 .… 5.5 — v ‘Truth’ and ‘Sportsman’ Ltd (1937) 58 CLR 416 .… 19.3 Howe v Harrick (1884) 5 LR (NSW) (L) 223 .… 16.11 — v Lees (1910) 11 CLR 361 .… 19.45, 19.46, 19.48 — v The Queen (1958) 100 CLR 448 .… 6.41 Howell v Haines (1997) Aust Torts Reports 81–409 .… 19.51 Hoyts Pty Ltd v Burns (2003) 210 ALR 470 .… 7.39 HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57; [2007] 2 All ER 139 .… 17.4 Hristofis v Kanellos (1992) 163 LSJS 142 .… 28.23 Hrybynyuk v Mazur (2004) Aust Torts Reports 81–774 .… 29.13 HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2005] EWCA Civ 1437 .… 4.65

HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; 211 ALR 79 . … 13.41 Hubbard v Pitt [1976] QB 142; [1975] 1 All ER 1056 .… 5.7, 14.43 Hudson v Mayes (1993) 173 LSJS 200 .… 19.52 Huet v Lawrence [1918] St R Qd 168 .… 6.24 Hughes v Lord Advocate [1963] AC 837; 1 All ER 705 .… 9.8, 9.9, 9.10 — v McKeown [1985] 3 All ER 284 .… 11.8 — v National Union of Mineworkers [1991] 4 All ER 278 .… 7.30 — v Northern Coal-Mine Workers’ Industrial Union of Workers [1936] NZLR 781 .… 21.60 — v Percival (1883) 8 App Cas 443 .… 26.26, 26.31 — v Williams [2012] EWHC 1078 .… 10.7 Huljich v Hall [1973] 2 NZLR 279 .… 21.33, 21.36, 27.7 Hull v Nuske (1974) 8 SASR 587 .… 6.41, 6.42 Hulton (E) & Co v Jones [1910] AC 20 .… 18.14, 18.22 Humberstone v Northern Timber Mills (1949) 79 CLR 389 .… 26.3 Humphries v TWT Ltd (1993) 120 ALR 693 .… 19.80 Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119 .… 22.50, 27.27, 27.32 Hunnerup v Goodyear Tyre & Rubber Co (Australia) Ltd (1974) 7 SASR 215 .… 29.33 Hunt v Carey Canada Inc (1990) 74 DLR (4th) 321 .… 21.45 — v Dowman (1618) Cro Jac 478 .… 5.23 — v Severs [1994] 2 AC 350; 2 All ER 385 .… 1.17, 11.16 — v Star Newspaper Co Ltd [1908] 2 KB 309 .… 19.21 — v The Queen [2011] 2 NZLR 499 .… 6.47 Hunter v Canary Wharf Ltd [1997] AC 655; [1996] 2 All ER 426 .… 3.23, 14.11, 14.12, 14.13, 14.33, 14.34, 14.46 — v Hanley [1955] SLT 213 .… 8.28 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 .… 11.28, 27.7 — v Presland [2005] 63 NSWLR 22 .… 6.58 Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41 .… 4.38 Huntley v Simson (1857) 27 LJ (Ex) 134 .… 25.12 Huntley v Thornton [1957] 1 All ER 234 .… 21.60 Hurlstone v London & Electric Ry Co (1914) 30 TLR 398 .… 26.21 Hurrell v Ellis (1845) 2 CB 295 .… 4.65 Husher v Husher (1999) 197 CLR 138; 165 ALR 384 .… 11.8 Hussain v Lancaster County Council [2000] QB 1; [1999] 4 All ER 125 .… 14.37 — v New Taplow Paper Mills Ltd [1988] AC 514; 1 All ER 541 .… 11.24

Hussien v Chong Fook Kam [1970] AC 942; [1969] 3 All ER 1626 .… 6.39 Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330 .… 22.20, 22.25 Hutchins v Maughan [1947] VLR 131 .… 3.12, 4.45 Hutchinson v Davidson 1945 SC 395 .… 5.15 — v Fitzpatrick [2009] ACTSC .… 3.5 Huth v Huth [1915] 3 KB 32 .… 18.18 Hyams v Peterson [1991] 3 NZLR 648 .… 18.16, 19.32 Hyde Corporation v Oldham Ashton and Hyde Electric Tramway Ltd (1900) 64 JP 596 .… 5.7 I I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2000) 179 ALR 89 .… 22.36 — v — (2002) 210 CLR 109; 192 ALR 1 .… 22.36, 23.34 IBL Ltd v Coussens [1991] 2 All ER 133 .… 4.39, 4.63 Ichard v Frangoulis [1977] 2 All ER 461 .… 27.7 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47 .… 22.45 Ilford Urban Council v Beal [1925] 1 KB 671 .… 14.40 Ilkiw v Samuels [1963] 2 All ER 879 .… 11.7, 26.44, 26.50 Illawarra Area Health Service v Dell [2005] NSWCA 381 .… 8.38 Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12 .… 7.40 Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 .… 1.16, 8.24, 10.22 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656; [1964] 2 All ER 999 .… 6.58, 10.25 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656; [1964] 2 All ER 299 .… 10.30, 16.33, 26.39 Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 .… 28.33 Independent Oil Industries Ltd v The Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 .… 21.6, 21.18, 21.19 Indermaur v Dames .… 7.39 Indian Towing Co Inc v United States (1955) 350 US 61; 100 L Ed 48 .… 7.33 Industrial Equity Ltd v North Broken Hill Holdings Ltd (1986) 64 ALR 292 .… 22.13 Informer v Chief Constable [2012] EWCA Civ 197 .… 7.30 Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd (1968) 69 SR (NSW) 311 .… 5.6 Ingram v United Automobile Services Ltd [1943] KB 612; 2 All ER 71 .… 9.17 Inland Revenue Commissioners v Hambrook [1956] 2 QB 641; 3 All ER 338 .… 20.13 Inn Leisure Industries Pty Ltd v D F McCloy Pty Ltd (1991) 28 FCR 151; 100 ALR 447 .… 22.31 Innes v Wylie (1884) 1 Car & Kir 257 .… 3.8 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; 276 ALR 497 .… 10.27

Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 45 ALR 391 .… 22.15 — v Joyce (1948) 77 CLR 39 .… 10.12, 10.22, 10.28, 10.30 Intellectual Property Development Corp Pty Ltd v Primary Distributors NZ Ltd [2010] 2 NZLR 729 .… 4.40 Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; 111 ALR 577 .… 22.16 International Factors Ltd v Rodriguez [1979] QB 351; 1 All ER 17 .… 4.4, 4.10 Invercargill City Council v Hamlin [1994] 3 NZLR 513 .… 13.6, 13.67, 13.73, 26.33, 27.7, 28.15 — v — [1996] AC 624; 1 All ER 756 .… 13.6, 13.67, 13.73, 28.15 — v Pennington (1993) 82 LGERA 268 .… 7.39 Inverugie Investments Ltd v Hackett [1995] 3 All ER 841 .… 5.17 IOOF Australia Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470 .… 22.43 Iqbal v London Transport Executive (1973) 16 KIR 329 .… 26.44 Irvin v Whitrod (No 2) [1978] Qd R 271 .… 26.58, 26.59 Irvine v Talksport Ltd [2002] 1 WLR 2355; 2 All ER 414 .… 23.11 — v Talksport Ltd [2003] 2 All ER 881 .… 23.7 Irving v Slevin (1982) 30 SASR 66 .… 15.21, 15.23 Isaack v Clark (1615) 2 Bulst 306 .… 4.31 Isaacs (M) & Sons Ltd v Cook [1925] 2 KB 391 .… 19.35 Isitt v Railway Passengers Assurance Co (1889) 22 QBD 504 .… 9.18 Island Trucking Ltd v Hogg Robinson & Gardner Mountain (Marine) Ltd [1990] 1 All ER 826 .… 28.16 Ives v Lucas (1823) 1 C & P 7 .… 6.47 Iveson v Moore (1699) 1 Ld Raym 486; 91 ER 1224 .… 27.5 J J v Lieschke (1987) 162 CLR 447; 69 ALR 647 .… 6.9 J C Scott Constructions v Mermaid Waters Tavern Pty Ltd [1984] 2 Qd R 413 .… 25.33, 25.43, 25.35, 25.40 J D Bell (Calool) Pty Ltd v Shortland County Council (1991) 74 LGRA 398 .… 16.22 J M Heywood & Co Ltd v Attorney-General [1956] NZLR 668 .… 9.6 J T Stratford & Son Ltd v Lindley [1965] AC 269; [1964] 3 All ER 102 .… 21.10, 21.24, 21.33, 21.35, 21.39 Jaber v Rockdale City Council [2008] NSWCA 98 .… 8.10, 10.27 Jackson v Harrison (1978) 138 CLR 438; 19 ALR 129 .… 6.58, 6.59 — v Magrath (1947) 75 CLR 293 .… 19.35 — v Reid (1993) Aust Torts Reports 81–213 .… 11.47 — v Sterling Industries Ltd (1987) 71 ALR 457 .… 22.45

— v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 .… 18.15 Jacobi v Griffiths (1999) 174 DLR (4th) 71 .… 7.21, 26.54 Jacobs v Seward (1872) LR 5 HL 464 .… 4.34, 5.12 — v Varley (1976) 9 ALR 219 .… 11.43 Jacques v Independent Radio News Ltd (HC(NZ), Gendall and Wild JJ, 26 February 1999, unreported) .… 18.19 — v Matthews [1961] SASR 205 .… 9.15 Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 .… 7.9, 7.11, 7.42, 7.43, 7.45, 7.47, 7.48, 7.49, 7.51, 9.8, 27.8 Jakovich Transport & Earthmoving Pty Ltd v Spiral Tube Makers Pty Ltd (2000) 31 MVR 141 .… 26.28 Jakudo Pty Ltd v SA Telecasters Ltd (1997) 69 SASR 440 .… 19.83 Jambrovic v ACT Health Authority (1992) 108 FLR 8 .… 8.8, 9.8 Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] 4 All ER 1279 .… 19.67 James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268 .… 29.34 — v Wyong Shire Council (2000) 48 NSWLR 679 .… 29.31 James Hardy & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 .… 11.11 James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 .… 22.30, 22.31 — v Campbell (1832) 5 C & P 372 .… 3.2, 3.4 Jameson v Central Electricity Generating Board [2000] 1 AC 455; [1999] 1 All ER 193 .… 29.28 Jamieson v Chiropractic Board of Australia [2011] QCA 56 .… 28.6 — v Green [1957] NZLR 1154 .… 9.6 — v R (1993) 177 CLR 574; 116 ALR 193 .… 25.1 Jamieson’s Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 .… 6.28, 27.11 Jane, Re (1989) FLC 92–007 .… 6.9 Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1985) 6 IPR 227 .… 22.14, 22.45 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526; 109 ALR 638 .… 22.46 Janvier v Sweeney [1919] 2 KB 316 .… 3.21, 3.22, 3.23 Jarvis v Williams [1955] 1 All ER 108 .… 4.10 Jasperson v Dominion Tobacco Co [1923] AC 709 .… 21.12 Jazairy v Najjar (1998) 27 MVR 498 .… 8.49 JEB Fasteners Ltd v Marks, Bloom & Co [1981] 3 All ER 289 .… 13.42, 23.33 Jeffries v Great Western Ry Co (1856) 5 E & B 802 .… 4.51 Jegon v Vivian (1871) 6 Ch App 742 .… 5.18 Jelks v Haywood [1905] 2 KB 460 .… 6.48 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; 277 ALR 257 .…

14.18 Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226 .… 26.17 — v Rundall (1799) 8 TR 335; 101 ER 1419 .… 29.19 — v Westfield Shopping Centre Management Co (ACT) Pty Ltd [2010] ACTSC 11 .… 7.39 Jennings (AV) Construction Pty Ltd v Maumill (1956) 30 ALJ 100 .… 29.36 Jensen v Clark [1982] 2 NZLR 268 .… 18.25, 19.75, 19.77 — v Eleftheriou [1982] VR 184 .… 6.39 Jerome v Bentley [1952] 2 All ER 114 .… 4.3 Jerred v Roddom Dent & Son Ltd [1948] 2 All ER 104 .… 29.38 Jesser v Gifford (1767) 4 Burr 2141; 98 ER 116 .… 14.33 Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109 .… 19.22 JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] 4 All ER 1152; [2012] EWCA Civ 938 .… 26.6, 26.11 JGK Nominees Pty Ltd v Printing & Kindred Industries Union (1977) 19 AILR para 239 .… 21.31 Jiao v Barge [2006] NZCA 168 .… 21.51 Jiwira v PIBA [2000] NSWSC 1094 .… 4.38 Job Edwards Ltd v Birmingham Navigations Ltd [1924] 1 KB 341 .… 14.40 Jobling v Associated Dairies Ltd [1981] QB 389; [1980] 3 All ER 769 .… 9.22 — v — [1982] AC 794 .… 9.21, 9.22 — v Blacktown Municipal Council [1969] 1 NSWR 129 .… 6.39 Joe Lee Ltd v Lord Dalmeny [1927] 1 Ch 300 .… 21.7 Joel v Morison (1834) 6 C & P 501; 172 ER 1338 .… 26.48 John F Goulding Pty Ltd v Victorian Railways Commrs (1932) 48 CLR 157 .… 4.56, 4.59 John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 .… 19.38, 19.41 — v Kelly (1987) 8 NSWLR 131 .… 27.31 — v Punch (1980) 31 ALR 624 .… 19.53 — v Vilo (2001) 52 NSWLR 373 .… 19.61 John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 .… 19.12 — v Gacic (2007) 230 CLR 291; 235 ALR 402 .… 18.7 — v Hitchcock (2007) 70 NSWLR 484 .… 19.11 — v O’Shane (2005) Aust Torts Reports 81–789 .… 19.63, 19.64 — v Obeid (2005) 64 NSWLR 485 .… 18.8, 18.19 — v Zunter [2006] NSWCA 227 .… 19.12 John Jones & Sons Ltd v Financial Times Ltd (1909) 25 TLR 677 .… 19.42 John Lewis & Co Ltd v Tims [1952] AC 676; 1 All ER 1203 .… 6.42, 6.43

John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656 .… 23.18 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625 .… 7.45, 19.73, 28.40, 28.41 John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P & CR 104 .… 5.20, 5.21, 27.51 Johns v Delaney (1890) 16 VLR 729 .… 14.38, 26.31 Johns Period Furniture Pty Ltd v Commonwealth Savings Bank of Australia (1980) 24 SASR 224 .… 7.19, 13.50 Johnson v BJW Property Developments Ltd [2002] 3 All ER 574 .… 14.48 — v Commonwealth (1927) 27 SR (NSW) 133 .… 3.21 — v Diprose [1893] 1 QB 512 .… 4.48, 4.49 — v Eastern Micro Electronics Pty Ltd (1986) 70 ALR 339 .… 22.33 — v Emerson (1871) LR 6 Ex 329 .… 25.4, 25.5, 25.12, 25.17 — v Kelemic (1979) FLC 90–657 .… 24.5 — v Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 .… 4.24 — v Nationwide Field Catering Pty Ltd [1992] 2 Qd R 494 .… 24.5 — v Perez (1988) 166 CLR 351; 82 ALR 587 .… 13.13 — v Rea Ltd [1961] 1 WLR 1400; 3 All ER 816 .… 7.19 — v Stear (1863) 15 CB (NS) 330 .… 4.35 — v Western Australia (2009) 40 WAR 116 .… 6.21 Johnson & Johnson v Watson [2002] NZCA 313 .… 7.14 Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 .… 6.14 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 .… 1.19, 13.13, 13.17, 13.50, 13.53 Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 .… 25.3 — v Australian Broadcasting Commn (1993) 113 FLR 307 .… 18.14 — v Consumers Gas Co [1898] AC 447 .… 16.3 — v Stewart [1968] SASR 142 .… 5.19 Johnstone v New South Wales (2010) 202 A Crim R 422 .… 6.42 — v Pedlar [1921] 2 AC 262 .… 6.55 — v Stewart [1968] SASR 142 .… 27.7, 27.10, 27.11 — v Sutton (1786) 1 Term Rep 510; 99 ER 1225 .… 25.7 — v Whitten [1997] ACTSC 89 .… 10.12 Jolley v Sutton London Borough Council [2000] 1 WLR 1082; 3 All ER 409 .… 7.40, 9.9 Jolliffe v Willmett and Co [1971] 1 All ER 478 .… 6.5 Jones v Acfold Investments Pty Ltd (1985) 6 FCR 512 .… 22.48 — v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 .… 18.20, 19.71 — v Bartlett (2000) 205 CLR 166; 176 ALR 137 .… 7.40, 8.13, 8.23

— v Bleakley (1981) 12 NTR 1 .… 11.42 — v Boyce (1816) 1 Stark 493; 171 ER 540 .… 10.13 — v Brooks (1974) 45 DLR (3d) 413 .… 19.71 — v Brown (1794) 1 Esp 216; 170 ER 334 .… 24.11 — v Chapman (1849) 2 Exch 803 .… 5.14 — v Dowle (1841) 9 M & W 19 .… 4.59 — v Dumbrell [1981] VR 199 .… 23.18, 23.38 — v Dunkel (1959) 101 CLR 298 .… 8.38, 8.39, 9.2 — v Fabbi (1973) 37 DLR (3d) 27 .… 21.21 — v — (No 2) (1974) 49 DLR (3d) 316 .… 27.20 — v Foreman [1917] NZLR 798 .… 25.17, 25.21 — v Givin (1713) Gil Cas 185; 93 ER 300 .… 25.17 — v Great Western Railway Co (1930) 144 LT 194 .… 8.40 — v — (1930) 47 TLR 39 .… 9.2 — v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 .… 19.41 — v Jones (1862) 1 H & C 1 .… 6.26 — v Kaney [2011] 2 AC 398; 2 All ER 671 .… 7.57, 25.1 — v Linnett [1984] 1 Qd R 570 .… 15.3, 15.19 — v Livox Quarries Ltd [1952] 2 QB 608 .… 10.4, 10.6, 10.9 — v Llanrwst Urban District Council [1911] 1 Ch 393 .… 5.23 — v Marchant (1916) 10 WWR 841 .… 4.63 — v Municipal Council of Sydney (1880) 1 LR (NSW) L 315 .… 28.21 — v Price [1965] 2 QB 618; 2 All ER 625 .… 15.10 — v Santrans Pty Ltd (1991) 56 SASR 103 .… 8.29, 8.33 — v Shire of Perth [1971] WAR 56 .… 5.15, 5.16, 14.49 — v Sutton (2004) 61 NSWLR 614 .… 19.72 — v Swansea City Council [1989] 3 All ER 162 .… 25.27, 25.30, 25.32 — v Sydney MC (1880) 1 LR (NSW) (L) 315 .… 14.50, 14.51 — v Williams (1843) 11 M & W 176 .… 6.26 Jones Brothers (Hunstanton) Ltd v Stevens [1955] 1 QB 275; [1954] 3 All ER 677 .… 21.9, 21.17 Jones (Robt) (363 Adelaide Street) Pty Ltd v First Abbott Corp Pty Ltd (1997) 14 BCL 282 .… 13.76 Jools v Mirror Newspapers Ltd (1984) 56 ACTR 1 .… 18.7 Jordin v Crump (1841) 8 M & W 782 .… 6.18 Joseph v Spiller [2011] 1 AC 852; 1 All ER 947 .… 19.18, 19.20 Joseph v Swallow and Ariell Pty Ltd (1933) 49 CLR 578 .… 10.11

Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 .… 10.9, 10.11, 10.12 Joss v Snowball (1969) 72 SR (NSW) 218 .… 26.16 Joule Ltd v Poole (1924) 24 SR (NSW) 387 .… 4.19 Juhlinn-Dannfelt v Crash Repairs Pty Ltd [1969] QWN 1 .… 4.60 Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520; [1982] 3 All ER 201 .… 13.14, 13.76 Junior Books Ltd v Veitchi Ltd [1983] 1 AC 520 .… 7.8 Jupiter (The) (No 3) (The) [1927] P 122; 250 .… 4.14 Just v British Columbia (1989) 64 DLR (4th) 689 .… 7.33 — v — [1987] 2 WWR 231 .… 7.33 Just Jeans Pty Ltd v Westco Jeans (Aust) Pty Ltd (1989) ATPR 40–927 .… 22.18 K K v Home Secretary [2002] EWCA Civ 775 .… 7.25 — v Minister for Youth and Community Services [1982] 1 NSWLR 311 .… 6.9 Kahler v Midland Bank Ltd [1950] AC 24; [1949] 2 All ER 621 .… 4.5 Kaimowitz v Michigan Department of Mental Health (Circuit Court, Michigan, 1973, unreported) .… 6.7 Kain v Mobbs [2008] NSWSC 383 .… 8.16, 8.33 Kain and Shelton Ltd v Virgo (1956) 97 CLR 230 .… 11.39 Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384 .… 10.10, 16.37 — v — [1970] VR 502 .… 10.10, 16.37 Kamloops (City of) v Nielsen (1984) 10 DLR (4th) 641 .… 28.12 Kammerman v Baster (1981) 28 SASR 571 .… 10.6, 10.10 Kandalla v British European Airways Corp [1981] QB 158; [1980] 1 All ER 341 .… 11.41 Kaplantza v Pascoe (2003) 40 MVR 146 .… 11.43 Karagozlu v Metropolitan Police Commissioner [2007] 2 All ER 1055 .… 25.32 Karamalis v Commr of South Australian Railways (1977) 15 ALR 629 .… 10.10 Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273 .… 24.3 Karra, Re (1984) 2 SR (WA) 97 .… 12.16 Kars v Kars (1996) 187 CLR 354; 141 ALR 37 .… 1.17, 11.16 Kavanagh v Akhtar (1998) 45 NSWLR 558 .… 9.8, 9.15 Kavanagh v Continental Shelf Co (No 46) Ltd [1993] 2 NZLR 648 .… 7.14 Kay v Ayrshire and Arran Health Board [1987] 2 All ER 417 .… 9.3 — v Chesser [1999] 3 VR 55 .… 18.13 — v ITW Ltd [1968] 1 QB 140; [1967] 3 All ER 22 .… 26.43, 26.44 Kaye v Robertson [1991] FSR 62 .… 3.9, 3.16, 17.4

Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR 41–017 .… 22.26, 23.24 Keally v Jones [1979] 1 NSWLR 723 .… 24.5 Kearney v London and Brighton Ry Co (1870) LR 5 QB 411 .… 8.43 Kearn-Price v Kent County Council [2002] EWCA Civ 1539 .… 7.21 Kearns v General Council of the Bar [2003] 2 All ER 534 .… 19.48 Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738 .… 14.18, 16.13 Keeble v Hickeringill (1706) 11 East 574n; 103 ER 1129 .… 20.4 Keeffe v McLean-Carr (1993) Aust Torts Reports 81–224 .… 9.14, 15.21, 29.38 Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40–853 .… 22.52 Keller v LED Technologies Pty Ltd (2010) 185 FCR 449; 268 ALR 613 .… 29.25 Kelly v Bega Valley County Council (CA(NSW), 13 September 1982, unreported) .… 10.11 — v Hazlett (1976) 75 DLR (3d) 536 .… 3.7 — v Partington (1833) 4 B & Ad 700; 110 ER 619 .… 19.46 — v Special Broadcasting Service [1990] VR 69 .… 19.3 — v Sweeney [1975] 2 NSWLR 720 .… 7.62 Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334; 2 All ER 343 .… 5.9, 5.11, 14.4 Kelson v David Syme & Co Pty Ltd [1998] ACTSC 60 .… 18.8 Kempsey Shire Council v Lawrence (1996) Aust Torts Reports 81–375 .… 14.46 Kemsley v Foot [1952] AC 345; 1 All ER 501 .… 19.15, 19.18, 19.19, 19.22 Kendall Wilson Securities Ltd v Barraclough [1986] 1 NZLR 576 .… 13.25, 13.42, 22.36, 23.23, 23.33 Kennaway v Thompson [1981] QB 88; [1980] 3 All ER 329 .… 14.19, 14.22, 14.52 Kenneth Wright Distributors Pty Ltd, Re; W J Vine Pty Ltd v Hall [1973] VR 161 .… 29.22 Kennett v Farmer [1988] VR 991 .… 19.44 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; 163 ALR 611 .… 13.39 Kent v Dominion Steel & Coal Corp Ltd (1964) 49 DLR (2d) 241 .… 14.9 — v Griffiths [2001] QB 36; [2000] 2 All ER 474 .… 7.25 — v Johnson (1973) 21 FLR 177 .… 14.13 Kenyon v Hart (1865) 6 B & s 249 .… 5.9 Keppel Bus Co Ltd v Sa’ad Ahmad [1974] 2 All ER 700 .… 26.52 Kerry v England [1898] AC 742 .… 9.18 Kettle Chip Co Pty Ltd v Apand Pty Ltd (No 2) (1998) 88 FCR 568 .… 22.46 Kettle v Bromsall (1738) Willes 118 .… 4.60 Khammash v Police (SC(SA), Gray J, 9 March 2001, BC200100754, unreported) .… 6.18 Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577 .… 19.11

Khorasandjian v Bush [1993] QB 727; 3 All ER 669 .… 3.23, 14.33 Kiddle v City Business Proper-ties Ltd [1942] 1 KB 269; 2 All ER 216 .… 14.45 Kidman v Farmers’ Centre Pty Ltd [1959] Qd R 8 .… 4.41 — v Page [1959] St R Qd 53 .… 14.11, 14.15, 14.31 Kilgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600 .… 8.42, 8.47 Kimber v Press Association Ltd [1893] 1 QB 65 .… 19.41 Kimber (David) TV & Sound Ltd v Kaiapoi Borough Council [1988] 1 NZLR 376 .… 13.40 Kinarra Pty Ltd v Crawford [2006] VSC 309 .… 4.20 Kine v Sewell (1838) 3 M & W 297; 150 ER 1157 .… 19.46 King v Commr for Railways [1971] Qd R 266 .… 10.30 — v Lake (1670) Hardres 364; 145 ER 499 .… 17.7 — v Nichols (1939) 33 QJP 171 .… 6.32 — v Phillips [1953] 1 QB 429; 1 All ER 617 .… 7.15, 8.14 — v Victoria Insurance Co [1896] AC 250 .… 29.22 — v Western Sydney Local Health Network [2011] NSWSC 1025 .… 8.35 King’s Norton Metal Co Ltd v Eldridge, Merrett & Co (1897) 14 TLR 98 .… 4.25 Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 .… 16.30 Kinzett v McCourt (1999) 46 NSWLR 32 .… 28.25 Kiraly v Richards (1993) 113 FLR 348 .… 29.9 Kirk v Nominal Defendant (Qld) [1984] 1 Qd R 592 .… 10.7 Kirkham v Chief Constable of the Greater Manchester Police [1989] 3 All ER 882 .… 10.16 — v — [1990] 2 QB 283; 3 All ER 246 .… 7.24, 11.36 Kitano v Commonwealth (1973) 129 CLR 151 .… 4.29, 4.34 Kite (The) [1933] P 154; All ER Rep 234 .… 8.50 Kleeman v Walker [1934] SASR 199 .… 8.32 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 .… 27.51 Klug v Motor Accidents Insurance Board (1991) Aust Torts Reports 81–134 .… 7.51 KM v HM; Women’s Legal Education and Action Fund (1992) 96 DLR (4th) 289 .… 3.16 Knapp v Railway Executive [1949] 2 All ER 508 .… 16.29 Knight v Anderson (1997) 17 WAR 85 .… 11.46 — v Beyond Properties Pty Ltd (2007) 242 ALR 586 .… 22.19 — v Government Insurance Office (NSW) (CA(NSW), 13 April 1995, unreported) .… 11.29 — v Home Office [1990] 3 All ER 237 .… 8.35 — v Maclean [2002] NSWCA 314 .… 8.12 — v Wilson 1949 SLT (Sh Ct) 26 .… 4.22

Knightly v Johns [1982] 1 All ER 851 .… 9.16 Knott v London County Council [1934] 1 KB 126; [1933] All ER Rep 172 .… 15.14, 15.17 Knowles v Richardson (1670) 1 Mod 55; 86 ER 727 .… 14.13 Knowlson v Solomon [1969] NZLR 686 .… 15.23 Knox v Till [1999] 2 NZLR 753 .… 13.79 Knupffer v London Express Newspaper Ltd [1944] AC 116; 1 All ER 495 .… 18.16 Koeck v Persic (1996) Aust Torts Reports 81–386 .… 11.8 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; 214 ALR 355 .… 7.45, 7.50, 8.4, 8.31 Kohn v State Government Insurance Commn (1976) 15 SASR 255 .… 7.48, 7.51 Komesaroff v Mickle (1986) 7 IPR 295 .… 22.16 Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 .… 26.27, 26.28, 26.34 Kondracuik v Jackson Morgan & Sons (1988) 47 SASR 280 .… 16.37 Konskier v B Goodman Ltd [1928] 1 KB 421 .… 5.6 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 .… 9.6 Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462; [1981] 3 All ER 65 .… 26.13, 26.50 Korean Times Pty Ltd v Un Dok Pak [2011] NSWCA 365 .… 19.48 Koster’s Premier Pottery Pty v The Bank of Adelaide (1981) 28 SASR 355 .… 4.16 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 .… 12.42 Koumorou v Victoria [1991] 2 VR 265 .… 28.25 Kouris v Prospector’s Hotel Pty Ltd (1977) 19 ALR 343 .… 8.45 Koursk (The) [1924] P 140 .… 9.17, 29.25, 29.28 Kovac v Kovac [1982] 1 NSWLR 656 .… 11.15 Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205 .… 22.9 Kowbel v R [1954] 4 DLR 337 .… 21.47 Kraemers v A-G (Tas) [1966] Tas SR 113 .… 14.10, 14.26, 14.30, 14.36, 14.49, 27.15 Krahe v Freeman (1988) ATPR 40–871 .… 17.14, 17.15 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 .… 18.3, 18.5, 18.12 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 130 ALR 1 .… 23.18, 23.21, 23.35 Kralj v McGrath [1986] 1 All ER 54 .… 27.7 Krauth v Geller (1960) 157 A 2d 129 .… 7.26 Kremen v Cohen F 3D 1024 (9th Cir 2003) .… 4.16 Kretschmar v State of Queensland (1989) Aust Torts Reports 80–272 .… 7.21 Kruber v Grzesiak [1963] VR 621 .… 2.4, 2.8, 2.14, 2.24, 28.4 Kuchenmeister v Home Office [1958] 1 QB 496; 1 All ER 485 .… 3.27

Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122; [2001] 3 All ER 183 .… 25.29, 26.40 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 .… 7.19, 8.10, 8.13, 8.31 Kullack v Australia & New Zealand Banking Group Ltd (1988) ATPR 40–861 .… 13.38, 23.33 Kumar v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 FCR 128; 100 ALR 439 .… 6.42 Kupke v Corporation of Sisters of Mercy [1996] 1 Qd R 300 .… 11.39 Ku-Ring-Gai Co-op Building Society (No 12) Ltd, Re (1978) 22 ALR 621 .… 22.7 Kuru v New South Wales (2008) 246 ALR 260; 82 ALJR 1021 .… 6.12 — v — [2008] HCA 25 .… 5.2 Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883; 3 All ER 209 .… 4.36, 4.38 Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 513 .… 7.28 — v — [1991] 1 AC 187; [1990] 3 All ER 404 .… 26.15 Kyogle Shire Council v Francis (1988) 13 NSWLR 396 .… 13.41 L L v Commonwealth (1976) 10 ALR 269 .… 7.24, 7.30, 7.32, 8.5, 24.14 L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385 .… 7.22, 7.36, 13.6, 13.34 L’Estrange v Brisbane Gas Co [1928] St R Qd 180 .… 14.47, 14.51 — v F Graucob Ltd [1934] 2 KB 394 .… 10.23 Lacanale v Rudko [2001] SASC 10 .… 10.16 Lachoume v Broughton (1903) 3 SR (NSW) 475 .… 27.5 Lackersteen v Jones (1988) 92 FLR 6 .… 3.37, 27.10 Ladstone Holdings Ltd v Leonora Holdings Ltd [2006] 1 NZLR 211 .… 22.40 Laferriere v Lawson [1991] 1 SCR 541 .… 9.4 Lagan Navigation Co v Lambeg Bleaching, Dyeing & Finishing Co Ltd [1927] AC 226 .… 6.26, 14.53 Lagden v O’Connor [2004] 1 AC 1067; 1 All ER 277 .… 27.20 Lago v Lago [1983] 2 Qd R 29 .… 20.26 Lahoud v Lahoud [2009] NSWSC 623 .… 4.40 Lai v Chamberlains [2003] 2 NZLR 374 .… 7.57 — v — [2005] 3 NZLR 29 .… 7.57 — v — [2007] 2 NZLR 7 .… 7.57 Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49 .… 22.8, 23.18, 23.22 Lake v Taggart (1978) 1 SR (WA) 89 .… 15.12 Lamb v Camden London Borough Council [1981] QB 625; 2 All ER 408 .… 1.18, 9.16, 13.17

— v Cotogno (1987) 164 CLR 1; 74 ALR 188 .… 1.9, 3.14, 27.7, 27.10, 27.11 — v Southern Tablelands County Council (1988) Aust Torts Reports 80–220 .… 11.46, 11.51 Lambert v Lewis [1982] AC 225; [1980] 1 All ER 978 .… 13.22 Lambert v Lewis [1982] AC 225; [1981] 1 All ER 1185 .… 13.64 — v Zammit [2005] NSWSC 1135 .… 8.15 Lambos v Commonwealth (1968) 41 ALJR 180 .… 8.44 Lampert v Eastern National Omnibus Co Ltd [1954] 2 All ER 719 .… 27.6 Lancashire and Yorkshire Ry Co v MacNicoll (1918) 88 LJKB 601 .… 4.22 Lancashire County Council v Municipal Mutual Insurance Ltd [1997] QB 897; [1996] 3 All ER 545 .… 27.10 Lancashire Waggon Co v Fitzhugh (1861) 6 H & N 502 .… 4.26 Lander v Australian Glass Manufacturers Co Pty Ltd [1962] SR (NSW) 152 .… 8.43 Landini v New South Wales [2010] NSWCA 157 .… 27.11 Lane v Dixon (1847) 3 CB 776 .… 5.11 — v Holloway [1968] 1 QB 379; [1967] 3 All ER 129 .… 6.4, 6.6, 6.14 Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 .… 18.10 Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1424 .… 7.5, 14.24 Lange v Atkinson [1998] 3 NZLR 424 .… 19.65, 19.66 — v — [2000] 3 NZLR 385 .… 19.66 — v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96 .… 19.62, 19.64 Langham v Governors of Wellingborough School and Fryer (1932) 101 LJKB 513 .… 8.48 Langridge v Fox (SC(WA), Pidgeon J, 5 August 1997, BC9703781, unreported) .… 6.15 Lankshear v Fair [1930] NZLR 347 .… 9.17 Larmer v Power Machinery Pty Ltd (1977) 14 ALR 243 .… 22.7 Laroche v Sprit of Adventure (UK) Ltd [2009] QB 778; 2 All ER 175 .… 12.40 Latham v Singleton [1981] 2 NSWLR 843 .… 21.34, 21.40, 21.41, 21.47, 21.49, 21.51, 21.56 Latimer v AEC Ltd [1952] 2 QB 701; 1 All ER 1302 .… 8.8, 8.9 — v — [1953] AC 643; 2 All ER 449 .… 8.9 Latter v Braddell (1881) 50 LJQB 448 .… 3.7, 6.7 Laughton v Bishop of Sodor & Man (1872) LR 4 CP 495 .… 19.44 Launchbury v Morgans [1973] AC 127; [1972] 2 All ER 605 .… 26.16, 26.17 Laurance v Kattar [2000] 1 Qd R 147 .… 19.32 Lauren v Jolly [1996] 1 VR 189 .… 29.27 Laurie v Raglan Building Co Ltd [1942] 1 KB 152; [1941] 3 All ER 332 .… 8.43 Lavender v Betts [1942] 2 All ER 72 .… 5.3

Lavender v Diamints Ltd [1949] 1 KB 585; 1 All ER 532 .… 16.29 Law v Visser [1961] Qd R 46 .… 9.2 — v Wright [1935] SASR 20 .… 27.3 Law Society v KPMG Peat Marwick [2000] 4 All ER 540 .… 13.28 Law Society v Sephton & Co [2006] 2 AC 543; 3 All ER 401 .… 28.17 Lawless v Anglo-Egyptian Cotton Co (1869) LR 4 QB 262 .… 19.56 Lawlor v Johnston [1905] VLR 714 .… 5.3, 5.9, 5.20, 6.26, 14.53 Lawrie v Meggitt (1974) 11 SASR 5 .… 9.15 — v NT News Services Pty Ltd (1985) 82 FLR 70 .… 19.78 Laws v Florinplace Ltd [1981] 1 All ER 659 .… 14.11 — v GWS Machinery Pty Ltd [2007] NSWSC 316 .… 7.5 Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd (2004) 214 ALR 478 .… 22.43 Lawson v Wellesley Hospital (1975) 61 DLR (3d) 445 .… 29.16 — v — (1978) 76 DLR (3d) 688 .… 29.16 Laybutt v Glover Gibbs Pty Ltd (2005) 221 ALR 310 .… 8.38 Le Lievre v Gould [1893] 1 QB 491 .… 7.4, 7.15 League Against Cruel Sports Ltd v Scott [1986] QB 240; [1985] 2 All ER 489 .… 5.3, 5.10 Leahy v Beaumont (1981) 27 SASR 290 .… 8.19 Leake v Loveday (1842) 4 Man & G 972; 134 ER 399 .… 4.14, 4.51 Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; 1 All ER 17 . … 14.27, 14.40, 14.41, 14.45 Leame v Bray (1803) 3 East 593 .… 3.12, 3.13, 4.45 Leask Timber & Hardware Pty Ltd v Thorne (1961) 106 CLR 33 .… 16.31 LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 .… 21.6 Lee v Atkinson and Brooks (1609) Yelv 172 .… 4.22 — v Lee’s Air Farming Ltd [1961] AC 12; [1960] 3 All ER 420 .… 12.8 — v Riley (1865) 18 CB (NS) 722; 144 ER 629 .… 15.5 — v Walkers (1939) 162 LT 89 .… 15.18 — v Wilson (1934) 51 CLR 276 .… 18.14, 18.22 Lee Gleeson Pty Ltd v Sterling Estates Pty Ltd (1991) 23 NSWLR 571 .… 23.38 Leeds & Northrop Australia Pty Ltd v Electricity Commn (NSW) (NSW CA, 4 May 1973, unreported) .… 27.40 Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 .… 5.4, 14.6, 14.50 Leerdam v Noori (2009) 227 FLR 210; 255 ALR 553 .… 7.57, 25.25, 25.29 Lego Australia Pty Ltd v Paul’s (Merchants) Pty Ltd (1982) 42 ALR 344 .… 22.20, 23.11 Lego Systems A/S v Lego M Lemelstrich Ltd [1983] FSR 155 .… 23.11

Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 .… 7.21, 7.36, 8.1, 8.14, 26.27 Leigh v Attorney-General [2011] 2 NZLR 148 .… 17.3, 19.32 — v Cole (1853) 6 Cox CC 329 .… 6.42 — v Gladstone (1909) 26 TLR 139 .… 6.22 Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785; 2 All ER 145 .… 4.66, 7.8, 13.14, 13.55, 13.59, 13.61, 13.62 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 .… 26.26 Leisbosch, Dredger v SS Edison [1933] AC 449 .… 27.19 Lemmon v Webb [1894] 3 Ch 1 .… 5.2 — v — [1895] AC 1 .… 5.2, 6.25, 6.26, 14.53 Lenfield, Re (1993) Aust Torts Reports 81–222 .… 6.6 Lennon v Metropolitan Police Commissioner [2004] 2 All ER 266 .… 13.34 Leonard v Smith (1992) 27 NSWLR 5 .… 29.41 Lergesner v Carroll [1991] 1 Qd R 206 .… 6.11 Les Laboratoires Servier v Apotex Inc [2012] EWCA Civ 593 .… 6.59 Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 .… 10.16 Leschke v Jeffs & Faulkner [1955] QWN 67 .… 9.22 Lester v White [1992] 2 NZLR 483 .… 13.71 Lester-Travers v City of Frankston [1970] VR 2 .… 14.22, 14.32, 14.37, 14.46, 14.52 Letang v Cooper [1965] 1 QB 232; [1964] 2 All ER 929 .… 2.8, 2.9, 2.11, 2.14, 2.21, 3.2, 6.3 — v Ottawa Electric Ry Co [1926] AC 725 .… 10.19 Leveridge v Witten (CA(NSW), 14 September 1979, unreported) .… 20.19 Levi Strauss & Co v Kimbyr Investments Ltd [1994] 1 NZLR 332 .… 22.18 Levi v Colgate Palmolive Pty Ltd (1941) 41 SR (NSW) 48 .… 7.15, 8.43 Levine v Morris [1970] 1 All ER 144 .… 7.7 Lewandowski v Lovell (No 2) (1995) 13 WAR 468 .… 19.63 Leward v Basely (1695) 1 Ld Raym 62 .… 6.17 Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151 .… 18.10 Lewisham Borough Council v Maloney [1948] 1 KB 50; [1947] 2 All ER 36 .… 5.11 Ley v Lewis [1952] VLR 119 .… 4.39 Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535; 107 ALR 291 .… 22.42, 23.27 Liddle v Yorkshire (North Riding) County Council [1934] 2 KB 101 .… 5.8 Life Savers (A’asia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 .… 10.23 Lilley v Alpine Resorts Commn (1998) Aust Torts Reports 81–475 .… 9.1 — v Roney (1892) 61 LJQB 727 .… 19.34

Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174; [1979] 2 All ER 910 .… 11.3, 11.29 Limpus v London General Omnibus Co (1862) 1 H & C 526; 158 ER 993 .… 26.51 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 .… 5.1, 5.6, 5.20, 5.22 Lindal v Lindal (1981) 129 DLR (3d) 263 .… 11.31 Lindholdt v Hyer (2008) 251 ALR 514 .… 19.50 Lindsay v Union Steam Ship Co of New Zealand Ltd [1960] NZLR 486 .… 26.9 Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 .… 8.35 Lineker v Raleigh Industries Ltd [1980] ICR 83 .… 16.31 Linford v Fitzroy (1849) 13 QB 240; 116 ER 1255 .… 25.27 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548; [1992] 4 All ER 512 .… 4.17 Lipman v Clendinnen (1932) 46 CLR 550 .… 7.38 Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400 .… 11.21 Lippiatt v South Gloucestershire Council [2000] QB 51; [1999] 4 All ER 149 .… 14.37 Lippl v Haines (1989) 18 NSWLR 620 .… 3.29, 5.6 Lisle v Brice [2002] 2 Qd R 168 .… 9.8, 9.11, 11.36 Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] 2 All ER 769 .… 7.21, 26.54 — v Perryman (1870) LR 4 HL 521 .… 6.39, 25.9 — v Romford Ice & Cold Storage Co Ltd [1957] AC 555; 1 All ER 125 .… 29.39, 29.40 Liston v Liston [1981] 31 SASR 245 .… 9.15 Lithgow City Council v Jackson (2100) 244 CLR 352; 281 ALR 223 .… 9.2 Little v Commonwealth (1947) 75 CLR 94 .… 26.57 — v Law Institute of Victoria (No 3) [1990] VR 257 .… 21.45, 21.60, 25.3, 25.9, 25.18, 25.21, 25.31, 25.32 — v Suncorp Insurance & Finance (No 2) [1994] 2 Qd R 273 .… 29.27 Littrell v United States of America (No 2) [1994] 4 All ER 203 .… 29.7 Liverpool City Council v Laskar (2010) 77 NSWLR 666 .… 11.19 — v Millet [2004] NSWCA 340 .… 8.32 — v — (2004) 43 MVR 193 .… 10.17 Liverpool Corporation v H Coghill & Son [1918] 1 Ch 307 .… 14.44 Livingstone v Ministry of Defence [1984] NI 356 .… 3.4 — v Rawyards Coal Co (1880) 5 App Cas 25 .… 5.18, 27.22 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1988) 6 BCL 45 .… 14.18 — v — (1989) 24 NSWLR 490 .… 5.9, 5.20 Lloyd v Citicorp Australia Ltd (1986) 11 NSWLR 286 .… 13.34 — v David Syme & Co Ltd (1985) 3 NSWLR 728; [1986] AC 350 .… 18.16

— v DPP [1992] 1 All ER 982 .… 6.5 — v Grace, Smith & Co [1912] AC 716 .… 26.53 — v Lewis [1963] VR 277 .… 24.12, 24.13 — v Osborne (1899) 20 LR (NSW) 190 .… 4.55, 4.57 Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 72 ALR 643 .… 22.13, 22.19 Lloyde v West Midlands Gas Board [1971] 2 All ER 1240 .… 8.41, 8.45 Lloyd-Jones v Allen [2012] NSWCA 230 .… 19.56 Lloyds Bank v Chartered Bank of India, Australia and China [1929] 1 KB 40 .… 4.16, 4.24 Lloyds Bank plc v Guardian Assurance plc (1986) 35 BLR 34 .… 14.14 Lobb v Ellis (1989) 10 MVR 88 .… 10.16, 24.5 Locher v Turner (1995) Aust Torts Reports 81–336 .… 24.4 Lochgelly Iron & Coal Co Ltd v M’Mullan [1934] AC 1 .… 7.3, 16.18 Lock v Ashton (1848) 12 QB 871 .… 3.36 Lockhart v Osman [1981] VR 57 .… 23.18 Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22 .… 5.14, 5.23 Logdon v DPP (1976) Crim LR 121 .… 3.18 Lomsargis v National Mutual Life Association of Australasia [2005] 2 Qd R 295 .… 1.13 London Artists Ltd v Littler [1969] 2 QB 375; 2 All ER 193 .… 19.15 London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15 .… 19.38, 29.13 London Chatham & Dover Ry Co v South Eastern Ry Co [1893] AC 429 .… 27.26, 27.27, 27.28 London Congregational Union Inc v Harriss & Harriss [1988] 1 All ER 15 .… 28.10 London Corporation v Appleyard [1963] 2 All ER 834 .… 4.13 — v Cox (1867) LR 2 HL 239 .… 6.47 London County Council v Cattermoles (Garages) Ltd [1953] 2 All ER 582 .… 26.51 — v Hackney Borough Council [1928] 2 KB 588 .… 6.29 London County Freehold Properties Ltd v Berkeley Property & Investment Co Ltd [1936] 2 All ER 1039 .… 23.35 London Drugs Ltd v Kuehne & Nagel International Ltd (1992) 97 DLR (4th) 261 .… 10.23 London Graving Dock Co Ltd v Horton [1951] AC 737 .… 7.38 London Passenger Transport Board v Upson [1947] KB 930 .… 8.32 — v — [1949] AC 155; 1 All ER 60 .… 8.32, 16.11 Long v Smithson (1918) 118 LT 678 .… 21.10 Longden v British Coal Corporation [1998] AC 653; 1 All ER 289 .… 11.22 — v Weigall (1877) 3 VLR (L) 266 .… 25.11, 25.13, 25.15 Longley v Minister for National Revenue (1999) 176 DLR (4th) 445 .… 25.32

Lonie v Perugini (1977) 7 ATR 674 .… 27.23 Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; [1981] 2 All ER 456 .… 16.8, 20.7, 21.28, 21.45, 21.49, 21.53, 21.55 Lonrho plc v Fayed [1990] 2 QB 479; [1989] 2 All ER 65 .… 21.28 — v — [1992] 1 AC 448; [1991] 3 All ER 303 .… 21.28, 21.45, 21.55 — v Tebbit [1992] 4 All ER 280 .… 7.33 Lord v Price (1874) LR 9 Exch 54 .… 4.9 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 .… 10.27 Lott v Cameron (1983) 35 SASR 61 .… 11.41, 20.15 Loudon v Ryder [1953] 2 QB 202; [1953] 1 All ER 741 .… 3.14, 5.11 — v — (No 2) [1953] Ch 423; 1 All ER 1005 .… 5.1 Lough v Ward [1945] 2 All ER 338 .… 24.10 Louis v Commonwealth (1986) 87 FLR 277 .… 3.27 Louis Vuitton Malletier SA v Toea Pty Ltd (2006) 237 ALR 118 .… 29.25 Louisiana v M/V Testbank 752 F 2d 1019 (1985) .… 13.55 Louisiana v M/V Testbank 752 F 2d 1019 (5th Cir, 1985) .… 13.56, 13.62 Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783; 1 All ER 652 .… 19.67 Louth Rural DC v West (1896) 12 TLR 477 .… 6.26 Love v Port of London Authority [1959] 2 Lloyd’s Rep 541 .… 9.11 — v Robbins (1990) 2 WAR 510 .… 21.51, 25.1, 25.6 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 .… 19.39, 19.44, 19.57, 19.71 Lovell v Lewandowski [1987] WAR 81 .… 19.83 — v WA Police Union of Workers (1991) Aust Torts Reports 81–073 .… 25.33 Low v Bouverie [1891] 3 Ch 82 .… 23.16 Lowden v Lewis [1989] Tas R 254 .… 13.68, 27.27 Lowe Lippmann Figdor & Franck v AGC (Advances) Ltd [1992] 2 VR 671 .… 23.23 — v Associated Newspapers Ltd [2007] QB 580; [2006] 3 All ER 357 .… 19.14, 19.18 Lowes v Amaca Pty Ltd [2011] WASC 287 .… 7.13, 8.13 Lowns v Woods (1996) Aust Torts Reports 81–376 .… 7.18, 7.25, 8.35 Lows v Telford (1876) 1 App Cas 414 .… 5.14 Lubidineuse v Bevanere Pty Ltd (1984) 3 FCR 1 .… 23.39 Lubidineuse v Bevanere Pty Ltd (1984) 7 FCR 325 .… 23.39 Lucas (R) & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 .… 19.41 Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177 .… 19.4 Lucire v Parmegiani [2012] NSWCA 86 .… 19.34

Ludgate v Lovett [1969] 1 All ER 1275 .… 8.48 Ludgater v Love (1881) 44 LT 694 .… 23.35 Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd [2008] 3 NZLR 685 .… 29.20 Luetich v Walton [1960] WAR 109 .… 6.39 Lumba v Secretary of State for the Home Department [2012] 1 AC 245; [2011] 4 All ER 1 .… 3.37, 6.49 Lumley v Gye (1853) 2 E & B 216; 118 ER 749 .… 20.9, 21.5, 21.21 Lumsden & Co v London Trustee Savings Bank [1971] 1 Lloyd’s Rep 114 .… 6.14 Lunnun v Singh [1999] EWCA Civ 1736 .… 10.15 Luxmore-May v Messenger May Baverstock [1990] 1 All ER 1067 .… 8.28 Luxton v Vines (1952) 85 CLR 352 .… 8.38, 8.39, 8.40, 9.2 LVMH Watch & Jewellery Australia Pty Ltd [2011] NSWCA 370 .… 19.43 Lyle v Soc (2009) 38 WAR 418 .… 11.36 Lynch v Lynch (1991) 25 NSWLR 411 .… 1.17, 6.31, 7.16, 7.23 — v Mudgee Shire Council (1981) 46 LGRA 204 .… 14.54 Lynskey J in Pentecost v London District Auditor [1951] 2 KB 759: 2 All ER 330 .… 8.30 Lyon v Fishmongers Co (1876) 1 App Cas 662 .… 14.58 Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 .… 26.52 Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476 .… 14.45 Lyver v State of Victoria [1983] 2 VR 475 .… 16.30 M M v J [1989] Tas R 212 .… 5.5 — v Newham London Borough Council [1994] 2 WLR 554; 4 All ER 602 .… 16.23 M(K) v M(H) (1992) 96 DLR (4th) 289 .… 28.2, 28.9, 28.12, 28.14 M’Combie v Davies (1805) 6 East 538 .… 4.24 M’Laughlin v Pryor (1842) 4 Man & G 48; 134 ER 21 .… 26.21 M’Leod v M’Chie (1841) 2 Man & G 326 .… 4.17 M’Manus v Crickett (1800) 1 East 106; 102 ER 43 .… 3.11 Maberley v Peabody & Co of London Ltd [1946] 2 All ER 192 .… 14.50 Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235 .… 11.8, 11.10 MacCulloch v TNT Ltd [2000] NSWSC 1183 .… 3.25 Macdonald v Dickson (1868) 2 SALR 32 .… 26.53 MacDonald v Public Trustee [2010] NSWSC 684 .… 27.11 MacEachern v Pukekohe Borough [1965] NZLR 330 .… 16.13, 16.22 Macievich v Anderson [1952] 4 DLR 507 .… 14.51

Macintosh v Dun [1908] AC 390 .… 19.46 Mackay v Abrahams [1916] VLR 681 .… 6.12 MacKay v Ford (1860) 5 H & N 792; 157 ER 1397 .… 19.33 Mackenzie v Hyam (1908) 8 SR (NSW) 587 .… 25.11 — v Nominal Defendant [2005] NSWCA 180 .… 10.12 Mackman v Stengold Pty Ltd (1991) ATPR 41–105 .… 13.36 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 .… 25.27, 25.28 MacLean v Commr of Inland Revenue (1985) 8 TRNZ 391 .… 27.23 Macleay Pty Ltd v Moore (1992) Aust Torts Reports 81–151 .… 7.40 Maclenan v Segar [1917] 2 KB 325 .… 7.40 MacPherson v Beath (1975) 12 SASR 174 .… 3.18, 3.20 Macpherson & Kelley v Kevin J Prunty & Associates [1983] 1 VR 573 .… 1.2, 27.40, 29.32 MacRae v Stevens (1996) Aust Torts Reports 81–405 .… 7.57 Mademoiselle Ltd v Oliver Enterprises Ltd [1974] 2 NZLR 532 .… 27.23 Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1996) 137 ALR 260 .… 25.33, 25.34, 25.43 — v — (1997) 72 FCR 262; 142 ALR 198 .… 25.33, 25.34, 25.43 Magill v Magill (2006) 226 CLR 551; 231 ALR 277 .… 3.23, 23.18 Maguire v Simpson (1977) 139 CLR 362; 18 ALR 469 .… 16.12, 29.5 Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 .… 6.42 Maher-Smith v GAW [1969] VR 371 .… 8.38 Mahesan S/O Thambiah v Malaysian Government Officers’ Co-op Housing Socy [1979] AC 374; [1978] 2 All ER 405 .… 27.47 Mahmud v Bank of Credit & Commerce International SA [1998] AC 20; [1997] 3 All ER 1 .… 17.3 Mahon v Osborne [1939] 2 KB 14; 1 All ER 535 .… 8.44, 8.46 — v Rahn (No 2) [2000] 4 All ER 41 .… 25.3 Mahoney v GEC Australia Ltd [1994] 1 Qd R 397 .… 27.31 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722 .… 9.13, 9.15, 27.18, 29.27 Maidment v Davis (2000) 77 SASR 167 .… 16.21, 16.29 Maindonald v Marlborough Aero Club (1935) 54 NZLR 371 .… 9.2 Mainguard Packaging Ltd v Hilton Haulage Ltd [1990] 1 NZLR 360 .… 7.14, 13.46 Mainstream Properties Ltd v Young [2008] 1 AC 1; [2007] 4 All ER 545 .… 21.4, 21.6 Maitland City Council v Myers (1988) 8 MVR 113 .… 8.41 Maiward v Doyle [1983] WAR 210 .… 11.19 Majrowski v Guy’s & St Thomas’s NHS Trust [2007] 1 AC 224; [2006] 4 All ER 395 .… 16.18, 26.1, 26.39

Makawe Pty Ltd v Randwick City Council (2009) 171 LGERA 165 .… 13.69, 13.74 Makita (Aust) Pty Ltd v Black & Decker (A’asia) Pty Ltd (1990) ATPR 41–030 .… 22.15 Makucha v Preslands Finance [2005] NSWSC 41 .… 5.11 Malcherek and Steel, Re (1981) 73 Cr App R 173 .… 6.45 Malcolm v Broadhurst [1970] 3 All ER 508 .… 9.8, 9.11 — v Dickson 1951 SC 542 .… 7.25 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; 92 ALR 545 .… 11.8 Malette v Shulman (1990) 67 DLR (4th) 321 .… 6.22 Malkins Nominees Ltd v Societe Financiere Mirelis SA [2004] EWHC 2631 .… 4.36 Mallows v Woolworths (Vic) Ltd (SC(Tas), BC9803310, 17 July 1998, unreported) .… 9.2 Malone v Laskey [1907] 2 KB 141 .… 14.33 Maloney v Commr for Railways (1978) 18 ALR 147 .… 8.23 — v Housing Industry Association Ltd (SC(Tas), Crawford J, 4 December 1992, unreported) .… 25.40 Malyon v Plummer [1964] 1 QB 330; [1963] 2 All ER 344 .… 11.41 Malz v Rosen [1966] 2 All ER 10 .… 25.3, 25.11 Manawatu County v Rowe [1956] NZLR 78 .… 10.14, 26.17 Manchester Corporation v Farnworth [1930] AC 171 .… 14.46 — v Markland [1936] AC 360 .… 8.32 Manders v Williams (1849) 4 Exch 339 .… 4.6 Mangena v Wright [1909] 2 KB 958 .… 19.23 Mankin v Scala Theadrome Co Ltd [1947] KB 257 .… 20.18 Manly Council v Byrne [2004] NSWCA 123 .… 8.16 Mann v Ellbourn (1974) 8 SASR 298 .… 11.9 — v Jacombe (1960) 78 WN (NSW) 635 .… 25.5 — v Mackay Television Ltd [1992] 2 Qd R 136 .… 19.3 — v Medicine Group Pty Ltd (1992) 38 FCR 400 .… 18.16 — v O’Neill (1997) 191 CLR 204; 145 ALR 682 .… 19.33 Mansard Developments Pty Ltd v Town of Armadale (1985) 3 BCL 400 .… 13.30 Manser v Spry (1994) 181 CLR 428; 124 ALR 539 .… 12.11 Manson v Shire of Mattra (1881) 7 VLR (L) 364 .… 14.50 Manton v Brocklebank [1923] 2 KB 212 .… 2.2, 4.46, 4.47, 15.11 Manvell v Thomson (1826) 2 C & P 303; 172 ER 137 .… 24.10 Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 .… 17.12, 19.73 Marac Finance Ltd v Colmore-Williams [1988] 1 NZLR 625 .… 13.33 Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211; [1995] 3 All ER 307 .… 7.11,

7.12, 13.5, 13.13, 13.17 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 .… 8.33, 9.5, 9.6, 9.7, 9.16, 10.6, 10.16, 16.34 — v Stramare (1989) 9 MVR 395 .… 9.6 Marcic v Thames Water Utilities Ltd [2004] 2 AC 42; 1 All ER 135 .… 14.41 Marcroft Wagons Ltd v Smith [1951] 2 KB 496; 2 All ER 271 .… 5.11 Marine Board of Launceston v Minister of State for the Navy (1945) 70 CLR 518 .… 27.26 Marine Steel Ltd v Government of the Marshall Islands [1981] 2 NZLR 1 .… 29.7 Marinis v Bennett (1987) 140 LSJS 400 .… 24.5 Marinko v Masri (2000) Aust Torts Reports 81–581 .… 27.21 Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 .… 20.13, 20.17, 20.18, 20.19 Maritime Services Board (NSW) v Leichhardt MC (1972) 26 LGRA 42 .… 14.33 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34; 165 ALR 67 .… 21.54, 21.55 — v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143 .… 21.23 Mark v Barkla [1935] NZLR 347 .… 15.9, 27.15 Markisic v Dept of Community Services of NSW [2005] NSWSC 1373 .… 5.11 Marks v Construction, Mining etc Union of Australia (1995) 14 WAR 360 .… 19.44 — v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333 .… 13.7, 22.47, 22.48, 22.49 Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 .… 27.36 Marlor v Ball (1900) 16 TLR 239 .… 15.13, 15.18 Marnovski v Zutti Pty Ltd [1984] 2 NSWLR 571 .… 20.26 Marrapodi v Smith-Roberts (unreported, noted in (1970) 44 ALJ 4) .… 29.40 Marrickville Municipal Council v Moustafa (2001) 117 LGERA 291 .… 9.6 Marsden v Ydalia Holdings Pty Ltd [2006] WASCA 52 .… 8.10 Marsh v Absolum [1940] NZLR 448 .… 26.18 Marsh, Marriage of (1993) 17 Fam LR 289 .… 27.12 Marshall v Osmond [1982] QB 857; 2 All ER 610 .… 8.29 — v — [1983] QB 1034 .… 8.7 — v Watson (1972) 124 CLR 640 .… 3.29 Marsland v Andjelic (1993) 31 NSWLR 162 .… 11.21 Martel Building Ltd v Canada (2000) 193 DLR (4th) 1 .… 13.13 Martell v Consett Iron Co Ltd [1955] Ch 363; 1 All ER 481 .… 25.34, 25.39, 25.40 — v Victorian Coal Miners’ Association (1903) 29 VLR 475 .… 21.52 Martignoni v Harris [1971] 2 NSWLR 102 .… 15.21 Martin v Australasian Coal & Oil Shale Employees’ Federation (1934) 34 SR (NSW) 593 .… 16.22,

16.24 — v Isbard (1946) 48 WALR 52 .… 9.15 — v London County Council [1947] KB 628 .… 4.38 — v Porter (1839) 5 M & W 351 .… 5.18 — v The Queen [2001] EWCA Crim 2245 .… 6.18 — v Watson [1996] AC 74; [1995] 3 All ER 559 .… 25.1, 25.3, 25.17 Martindale v Burrows [1997] 1 Qd R 243 .… 28.13 Martinez v Gerber (1841) 3 M & G 88; 133 ER 1069 .… 20.8, 20.12 Marx v A-G [1974] 1 NZLR 164 .… 24.3 Marzetti v Williams (1830) 1 B & Ad 415; 109 ER 842 .… 1.3, 27.3 Masinovic v Motor Vehicle Insurance Trust (1986) 42 SASR 161 .… 11.20 Mason v Clarke [1955] AC 778; 1 All ER 914 .… 5.7, 5.11 — v Keeling (1699) 12 Mod 332; 88 ER 1359 .… 15.3 — v Levy Auto Parts of England Ltd [1967] 2 QB 530; 2 All ER 62 .… 14.48 — v Mason [1997] 1 VR 325 .… 28.4 — v Murray’s Charter Coaches & Travel Services Pty Ltd (1998) 88 FCR 308; 159 ALR 45 .… 28.41 Mason and Cox Pty Ltd v McCann (1999) 74 SASR 438 .… 26.6 Massey-Harris-Ferguson (Mfg) Ltd v Piper [1956] 2 QB 396; 2 All ER 722 .… 16.29 Mastaglia v Burns (2006) 32 WAR 427 .… 11.8 Matania v National Provincial Bank Ltd [1936] 2 All ER 633 .… 14.14, 14.29 Matheson v G Stuckey & Co Pty Ltd [1921] VLR 637 .… 15.7 — v Northcote College Board of Governors [1975] 2 NZLR 106 .… 14.39 Mathieson v Workers’ Compensation Board [1990] 2 Qd R 57 .… 29.32 Matsuyama v Birnbaum (2008) 890 NE 2d 819 .… 9.4 Matt v Shoolbred (1875) LR 20 Eq 22 .… 14.58 Matthew Gloag & Son Ltd v Welsh Distillers Ltd [1998] FSR 718 .… 23.7 Matthews v Eastley [1998] NSWSC 11 .… 4.16 — v Kuwait Bechtel Corp [1959] 2 QB 57; 2 All ER 345 .… 27.44 Mattouk v Massad [1943] AC 588; 2 All ER 517 .… 24.10 Mattson v Commonwealth (1988) Aust Torts Reports 80–216 .… 8.9 Mawji v R [1957] AC 126; 1 All ER 385 .… 21.47 Maxey Drainage Board v Great Northern Ry Co (1912) 106 LT 429 .… 6.23 May v Burdett (1846) 9 QB 101; 115 ER 1213 .… 15.13 Mayfair Ltd v Pears [1987] 1 NZLR 459 .… 1.18 Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202 .… 10.9

Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141 .… 4.37, 4.58 — v — [1984] 1 NSWLR 258 .… 4.9, 4.37 Mayo v Seaton UDC (1903) 68 JP 7 .… 14.9 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; 98 ALR 193 .… 27.30 McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR (NSW) 187 .… 23.28 McAlpines Saw Milling Ltd v Airwork Engineering Ltd [1976] 2 NZLR 131 .… 27.32 McArdle v Egan (1934) 150 LT 412 .… 6.39 McArthur v Williams (1936) 55 CLR 324 .… 6.36 McC, Re [1985] AC 528; [1984] 3 All ER 908 .… 6.52, 25.27 McCabe v Russell [1961] NZLR 385 .… 7.26 McCaffrey v Hill (1903) 3 SR (NSW) 303 .… 25.11 McCallion v Dodd [1966] NZLR 710 .… 7.23, 7.28, 24.15 McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854 .… 11.22 McCarroll v McCulloch (1870) 9 SCR (NSW) 333 .… 27.18 McCarthy v Wellington City [1966] NZLR 481 .… 9.6, 9.10 McCartney v Londonderry and Lough Swilly Ry Co Ltd [1904] AC 301 .… 14.6 McCarty v North Sydney Municipal Council (1918) 18 SR (NSW) 210 .… 5.23, 14.33 McClelland v Symons [1951] VLR 157 .… 3.18, 6.15, 6.16 McClintock v Union Bank of Australia Ltd (1920) 20 SR (NSW) 494 .… 4.16 McColl v Dionisatos (2002) Aust Torts Reports 81–652 .… 9.12 McCombe v Read [1955] 2 QB 429; 2 All ER 458 .… 14.39 McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 .… 18.16 McCullagh v Lawrence [1989] 1 Qd R 163 .… 11.51 McCulloch v L A May (Produce Distributors) Ltd (1947) 65 RPC 58 .… 23.11 McCurdy v PMG [1959] NZLR 553 .… 4.57 McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906; 2 All ER 878 .… 26.26, 26.28 McDermott v Wallace [2005] 3 NZLR 661 .… 27.13 McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81–361 .… 3.37 — v Commonwealth (1945) 46 SR (NSW) 129 .… 26.10 — v Girkaid Pty Ltd (2004) Aust Torts Reports 81–768 .… 16.28, 16.30 — v — [2004] NSWCA 297 .… 9.2 — v Ludwig [2007] QSC 28 .… 6.8 — v New South Wales [1999] NSWSC 350 .… 3.14 — v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 .… 18.3 McDonnell v Darwin City Council (1997) 118 NTR 9 .… 10.11

McDowall v Reynolds [2004] QCA 245 .… 5.11 McEwan v Mills (1865) 2 WW & a’B (L) 118 .… 14.37 McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 .… 3.33, 14.55 McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 .… 7.27 — v Neshausen [1952] NZLR 292 .… 29.37 — v Tayside Health Board [2000] 2 AC 59; [1999] 4 All ER 961 .… 7.59 — v Wilkinson [1997] 2 Lloyd’s Rep 259 .… 16.29 McGeown v Northern Ireland Housing Executive [1995] 1 AC 233; [1994] 3 All ER 53 .… 7.39 McGhee v National Coal Board [1972] 3 All ER 1008; [1973] 1 WLR 1 .… 9.3, 9.6, 16.31 McGibbon v McCurry (1909) 43 Ir LT 132 .… 15.10 McGill v Shield Contractors Pty Ltd [1998] 2 Qd R 398 .… 11.23 McGillivray v Kimber (1915) 26 DLR 164 .… 25.32 McGilvray v Amaca Pty Ltd (SC(WA), BC200108076, 14 December 2001, Pullin J, unreported) .… 11.30 McGowan v Chief Constable of Kingston upon Hull [1968] Crim LR 34 .… 6.12 — v Stott (1923) in (1930) 99 LJKB 357n .… 8.43, 8.45, 8.48 McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230; 246 ALR 514 .… 13.13 — v NRMA Insurance Ltd (1996) 24 MVR 428 .… 11.8 McGuire v Union Steamship Co of NZ Ltd (1920) 27 CLR 570 .… 12.7 McHale v Watson (1964) 111 CLR 384 .… 2.3, 2.4, 2.14, 2.17, 2.20, 3.25, 6.3, 8.16 — v — (1966) 115 CLR 199 .… 8.16, 8.17, 10.11 McInnes v Wardle (1931) 45 CLR 548 .… 14.38, 26.21 McIntosh v Lobel (1993) 30 NSWLR 441 .… 5.11 McIntosh v Webster (1980) 30 ACTR 19 .… 27.7 — v — (1980) 43 FLR 112 .… 6.41 McIntyre v Miller (1980) 30 ACTR 8; Hodges v Frost (1984) 53 ALR 373 .… 24.5 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; 104 ALR 257 .… 28.40 McKay v Essex Area Health Authorities [1982] QB 1166; 2 All ER 771 .… 7.60 — v The Queen [1957] VR 560 .… 6.41 McKean v McIvor (1870) LR 6 Exch 36 .… 4.30 — v Page (1999) 25 Fam LR 15 .… 27.7 McKechnie v Campbell (1996) 17 WAR 62 .… 25.25 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 .… 21.51, 26.59 McKenzie v Donald (1984) 37 SASR 1 .… 12.16 — v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 .… 19.50

— v — (1992) 7 BR 350 .… 19.81 McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 .… 4.60 McKernan v Fraser (1931) 46 CLR 343 .… 21.5, 21.36, 21.45, 21.49, 21.58, 21.60, 29.29 McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC (HL) 20 .… 27.18 — v — [1969] 3 All ER 1621 .… 9.15 McKinnon v Burtatowski [1969] VR 899 .… 7.17, 7.19 McKinnon Industries Ltd v Walker [1951] 3 DLR 577 .… 14.12, 14.51, 27.51 McLachlan v Canadian Imperial Bank of Commerce (1987) 13 BCLR (2d) 300 .… 5.6 — v Mesics (1966) 40 ALJR 204 .… 6.39 McLaren Maycroft & Co v Fletcher Development Co Ltd [1973] 2 NZLR 100 .… 27.38 McLean v Brett (1919) 49 DLR 162 .… 15.8 — v Tedman (1984) 155 CLR 306; 56 ALR 359 .… 8.33, 10.10 McLoughlin v O’Brian [1983] 1 AC 410 .… 7.9, 7.55 McMahon v Catanzaro [1961] QWN 22 .… 14.12, 14.14, 14.28 — v Labour Council of NSW (1985) 81 FLR 415 .… 21.23 — v Pomeray Pty Ltd (1991) ATPR 41–125 .… 23.39 McManus v Beckham [2002] 4 All ER 497 .… 18.20 — v Bowes [1937] 3 All ER 227 .… 21.8 McMillan v Bevan [2002] NSWCA 143 .… 28.24 — v Territory Insurance Office (1988) 57 NTR 24 .… 12.35 McMillan (J S) Pty Ltd v Commonwealth (1997) 77 FCR 337; 147 ALR 419 .… 22.6, 22.10 McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81–584 .… 19.3, 19.15 McMullin v ICI Australia Operations Pty Ltd (1997) 72 FCR 1 .… 13.50, 22.6 McNamara v Duncan (1971) 26 ALR 584 .… 3.2, 6.4, 6.6 McNichol v Grandy [1932] 1 DLR 225 .… 18.18 McNicol v ACT Health Authority (SC(ACT), Kelly J, 23 September 1988, unreported) .… 18.7, 18.18 McPhail v Persons, Names Unknown [1973] Ch 447; 3 All ER 393 .… 5.2, 6.25 McPherson v Commr for Government Transport (1959) 76 WN (NSW) 352 .… 7.42 — v Daniels (1829) 10 B & C 263; 109 ER 448 .… 19.3 — v Whitfield [1996] 1 Qd R 474 .… 10.12, 10.17 McPherson’s Ltd v Eaton [2005] NSWCA 435 .… 7.5 — v Hickie (1995) Aust Torts Reports 81–348 .… 18.25 McQuaker v Goddard [1940] 1 KB 687; 1 All ER 471 .… 15.12, 15.13 McRae v SA Telecasters Ltd (1976) 14 SASR 162 .… 19.78 McWhirter v Emerson-Elliott (No 2) [1962] WAR 162 .… 14.45, 15.10

McWilliams v Sir William Arrol & Co Ltd [1962] 1 All ER 623 .… 16.31 McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 .… 22.16, 22.19, 22.20, 22.23, 23.8, 23.11 Mead v Clarke, Chapman & Co Ltd [1956] 1 WLR 76 .… 9.22 Meade and Belts (1823) 1 Lewin 184 .… 3.19 Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd (1994) ATPR (Digest) 46–130 .… 13.34, 22.9 Meadows v Maloney (1972) 4 SASR 567 .… 24.4 Mears v London and Southwestern Ry Co (1862)11 CB(NS) 850 .… 4.65 Meates v A-G [1983] NZLR 308 .… 13.21, 13.33 Meckiff v Simpson [1968] VR 62 .… 17.12, 19.73 Mediana (The) [1900] AC 113 .… 4.40, 4.52, 27.3 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 .… 22.45 Medical Practitioners Board of Victoria v Mann (2000) 1 VR 609 .… 19.34 Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180 .… 9.5, 9.6, 9.13, 9.14, 11.8 Mee v Cruickshank (1902) 86 LT 708 .… 3.32 Meekins v Henson [1964] 1 QB 472; [1962] 1 All ER 899 .… 29.14 Meering v Grahame-White Aviation Co (1919) 122 LT 44 .… 3.33 Melchior v Cattanach (2001) Aust Torts Reports 81–597 .… 7.58 Melleney v Wainwright [1997] EWCA Civ 2884 .… 10.17 Mellor v Leather (1853) 1 E & B 619 .… 6.29 Mendola v Warren (1993) Aust Torts Reports 81–240 .… 10.12, 10.30 Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542; 55 ALR 709 .… 22.8 Mennie v Blake (1856) 6 E & B 842 .… 6.29 Mercantile Marine Service Assn v Toms [1916] 2 KB 243 .… 29.13 Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432 .… 20.13, 20.18 Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 .… 8.6, 8.34 Meretz Investments NV v ACP Ltd [2008] Ch 244 .… 21.6 Merivale v Carson (1887) 20 QBD 275 .… 19.15, 19.25 Merkur Island Shipping Corp v Laughton [1983] 2 AC 570; 2 All ER 189 .… 21.3, 21.24, 21.25 Merrett v Babb [2001] Build LR 483 .… 13.25 Merricks v Nott-Bower [1965] 1 QB 57; [1964] 1 All ER 717 .… 19.35 Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1; [1946] 2 All ER 345 .… 26.9 Mersey Docks Trustees v Gibbs (1866) LR 1 HL 93 .… 8.22

Metalcorp Recyclers Pty Ltd v Metal Manufacturers Ltd [2003] NSWCA 213 .… 23.39 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; [1989] 3 All ER 14 .… 21.45, 25.24 Metropolitan Asylum District v Hill (1881) 6 App Cas 193 .… 14.46 Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 .… 25.5 Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 .… 7.34 Metropolitan International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743; [2010] 3 All ER 548 .… 18.24 Metropolitan Police Commissioner v Reeves [2001] AC 360; [1999] 3 All ER 897 .… 7.24, 10.16 Metropolitan Properties Ltd v Jones [1939] 2 All ER 202 .… 14.26 Metropolitan Ry Co v Jackson (1877) 3 App Cas 193 .… 8.37, 8.39, 9.2 — v Wright (1886) 11 App Cas 152 .… 8.37 Metzke & Allen v Sali [2010] VSCA 267 .… 29.42 Meye v Electric Transmission Ltd [1942] Ch 290 .… 5.6 Michael v Western Australia (2008) 183 A Crim R 66 .… 6.7 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 .… 22.5, 22.10 — v — (1993) 44 FCR 290; 116 ALR 460 .… 13.23, 13.26, 22.10 Midalco Pty Ltd v Rabenalt [1989] VR 461 .… 1.9, 27.11 Middlebrook Mushrooms Ltd v Transport & General Workers Union [1993] ICR 612 .… 21.5 Middleton v Western Australia (1992) 8 WAR 256 .… 26.59 Middleweek v Chief Constable of the Merseyside Police [1990] 3 All ER 622 .… 3.26 Midland Bank Trust Co Ltd v Green [1982] Ch 529; [1981] 3 All ER 744 .… 21.47 — v — (No 3) [1979] Ch 496; 2 All ER 193 .… 21.47 — v Hett, Stubbs & Kemp [1979] Ch 384; [1978] 3 All ER 571 .… 13.13, 28.21 Midland Metals Overseas Pte Ltd v The Christchurch Press Co Ltd [2002] 2 NZLR 289 .… 17.3, 27.45 Midland Silicones Ltd v Scruttons Ltd [1962] AC 446; 1 All ER 1 .… 10.23 Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597 .… 14.29 Miell v Hatjopoulos (1987) 4 BCL 226 .… 13.68 Mihaka v Wellington Publishing Co (1972) Ltd [1975] 1 NZLR 10 .… 19.71, 29.25 Mikaelian v Commonwealth Scientific and Industrial Research Organisation (1999) 163 ALR 172 .… 23.39 Miki Shoko Co Ltd v Merv Brown Pty Ltd (1988) ATPR 40–858 .… 22.24 Milera v Wilson (1980) 23 SASR 485 .… 29.23 Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470 .… 27.45 Miletic v Capital Territory Health Commn (1995) 130 ALR 591 .… 8.8 Milk Bottles Recovery Ltd v Camillo [1948] VLR 344 .… 4.7, 4.22

Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311 .… 10.14 Millard v Serck Tubes Ltd [1969] 1 All ER 598 .… 16.28 Miller v Dell [1891] 1 QB 468 .… 28.9 — v Jackson [1977] QB 966; 3 All ER 338 .… 14.45, 14.52 — v Miller (2011) 242 CLR 446; 275 ALR 611 .… 6.58, 6.59 — v Royal Derwent Hospital Board of Management (1992) Aust Torts Reports 81–175 .… 9.2, 9.6, 9.8 — v Sotiropoulos (CA(NSW), 18 August 1997, BC9703844, unreported) .… 6.15 — v The Queen (1985) 24 DLR (4th) 9 .… 3.26 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; 270 ALR 204 .… 22.40 Miller (RW) & Co Pty Ltd v Krupp (Australia) Pty Ltd (1992) 11 BCL 74 .… 13.13 Millington v Wilkie (2005) 62 NSWLR 322 .… 16.29, 16.34, 16.35 Mills v Armstrong;The Bernina (1888) 13 App Cas 7 .… 10.14 — v Brooker [1919] 1 KB 555 .… 4.20, 14.53 — v Sheahan (2007) 99 SASR 357 .… 13.52 — v United Building Society [1988] 2 NZLR 392 .… 22.40 Milner v Delita Pty Ltd (1985) 9 FCR 299 .… 22.50 Minchillo v Ford Motor Co of Australia Ltd [1995] 2 VR 594 .… 13.64 Ming Kuei Property Investments Pty Ltd v Hampson (1994) 126 ALR 313 .… 4.55, 4.62 Minister of Fisheries v Pranfield Holdings Ltd [2008] 3 NZLR 649 .… 16.24 Minister of Health v Bellotti [1944] KB 298; 1 All ER 238 .… 5.5 Minister of State for the Army v Dalziel (1944) 68 CLR 261 .… 6.56 Minister of State for the Interior v R T Co Pty Ltd (1962) 107 CLR 1 .… 5.14 Ministry of Housing & Local Government v Sharp [1970] 2 QB 223; 1 All ER 1009 .… 13.30 Minnamurra Racing Services Pty Ltd v Rogerson [2005] NSWSC 1054 .… 4.48 Mint v Good [1951] 1 KB 517; [1950] 2 All ER 1159 .… 14.42 Minter v Eacott (1952) 69 WN (NSW) 93 .… 5.4, 5.15, 14.49 — v Priest [1930] AC 558 .… 19.36 Mintuck v Valley River Band (1977) 75 DLR (3d) 589 .… 21.31, 21.35, 21.41 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 .… 18.8, 19.81 — v Harrison (1982) 149 CLR 293; 42 ALR 487 .… 18.8, 18.10, 19.4 — v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR 167 .… 18.13 Misel v Teese [1942] VLR 69 .… 6.39 Mitchell v Faber & Faber Ltd [1998] EMLR 807 .… 18.10 — v Glasgow City Council [2009] 1 AC 874; 3 All ER 205 .… 7.12, 7.30

— v John Heine & Son Ltd (1938) 38 SR (NSW) 466 .… 25.9, 25.11 — v Sprott [2002] 1 NZLR 766 .… 19.17, 19.21 — v Taylor (1992) 108 FLR 265 .… 9.2 — v Tsiros (No 2) [1982] VR 301 .… 14.45 — v Valherie (2005) 93 SASR 76 .… 22.35 — v Wachter [1961] VR 537 .… 8.36 Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ [1983] 2 NSWLR 564 .… 13.61 MLC v Evatt (1968) 122 CLR 556; [1971] AC 793; 1 All ER 150 .… 13.22, 13.23, 13.32, 13.34 Mobbs v Kain [2009] NSWCA 301 .… 10.11 Mobil Oil Hong Kong Ltd v Hong Kong United Dockyards Ltd [1991] 1 Lloyd’s Rep 309 .… 13.5 Mockridge v Watson [1960] VR 405 .… 11.51 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 .… 7.10, 7.12, 7.28, 7.30, 7.39, 9.6 Model Dairy Pty Ltd v White (1935) 41 Arg LR 432 .… 4.22 Mogul Steamship Co Ltd v McGregor Gow & Co (1889) 23 QBD 598 .… 20.5, 21.18 — v — [1892] AC 25 .… 21.44, 21.60 — v — [1892] AC 38 .… 20.5 Mohamed Amin v Jogendra Kumar Bannergee [1947] AC 322 .… 25.4 Mohr v Cleaver [1986] WAR 67 .… 13.22 Moll v Butler (1985) 4 NSWLR 231 .… 6.51 Moller v Trollope Silverwood & Beck Pty Ltd [2004] VSCA 22 .… 10.10 Moloughney v Wellington Racing Club [1935] NZLR 800 .… 8.14 Mond v Hyde [1999] QB 1097; [1998] 3 All ER 833 .… 25.1 Money v Leach (1765) 3 Burr 1692; 97 ER 1050 .… 6.36, 6.54 Monie v Commonwealth [2007] NSWCA 230 .… 10.4 Monk v ANZ Banking Group Ltd (1994) 34 NSWLR 148 .… 25.41, 27.41, 29.22 — v Warley [1935] 1 KB 75 .… 16.12 Monks v Dykes (1839) 4 M & W 567 .… 5.11 Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (1991) 33 FCR 1; 104 ALR 397 .… 27.20 Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 .… 14.2, 14.40 Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 .… 26.3 Moodie v Ing [1966] Qd R 229 .… 24.4 Moorabool Shire Council v Taitapanui (2006) 14 VR 55 .… 7.11, 13.74 Moore v AGC (Insurance) Ltd [1968] SASR 389 .… 9.15 — v Canadian Pacific SS Co Ltd [1945] 1 All ER 128 .… 19.45

— v Limb (1994) Aust Torts Reports 81–295 .… 11.46 — v Oastler (1836) 1 Mood & R 451n; 174 ER 155 .… 19.77 — v R Fox & Sons Ltd [1956] 1 QB 596: 1 All ER 182 .… 2.20, 8.48, 8.50 — v WA Government Railways Commn (1990) 3 WAR 409 .… 29.34 Moore Stephens v Stone Rolls Ltd (in liquidation) [2009] UKHL 39 .… 6.58 Moorgate Mercantile Co Ltd v Finch [1962] 1 QB 701; 2 All ER 467 .… 4.18 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414; 56 ALR 193 .… 5.1 Morawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374 .… 7.40 More v Weaver [1928] 2 KB 520 .… 19.36 Morgan v Fry [1968] 2 QB 710; 3 All ER 452 .… 21.18 — v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 .… 19.59 — v Khyatt [1962] NZLR 791 .… 14.53 — v — [1964] NZLR 666 .… 14.41, 14.53 — v Loyacomo (1941) 1 So 2d 510 .… 3.13 — v Mallard (1997) 68 SASR 184 .… 18.10 — v Marquis (1854) 9 Ex 145 .… 4.34 — v Odhams Press Ltd [1971] 2 All ER 1156 .… 18.14, 18.18 — v Powell (1842) 3 QB 278 .… 5.18 — v Tame (2000) 49 NSWLR 21 .… 7.45 Morgan Crucible Co plc v Hill Samuel & Co Ltd [1991] Ch 295; [1990] 3 All ER 330 .… 1.19, 1.20, 13.17 Moriarty v Brooks (1834) 6 C & P 684 .… 6.18 Morison v London County and Westminster Bank Ltd [1914] 3 KB 356 .… 4.22 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 .… 18.10, 19.38, 19.39, 19.41, 19.60, 19.72, 19.77 Morris v CW Martin & Sons Ltd [1966] 1 QB 716; [1965] 2 All ER 725 .… 26.53 — v Ford Motor Co Ltd [1973] QB 792; 2 All ER 1084 .… 29.40 — v KLM Royal Dutch Airlines [2002] 2 AC 628; 2 All ER 565 .… 12.42 — v Luton Corporation [1946] KB 114; 1 All ER 1 .… 8.12, 8.13 — v Murray [1991] 2 QB 6; [1990] 3 All ER 801 .… 10.30 — v West Hartlepool Steam Navigation Co Ltd [1956] AC 552; 1 All ER 385 .… 8.36 — v Winsbury-White [1937] 4 All ER 494 .… 8.46 Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934 .… 16.23 Morrison SS Co Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265; [1946] 2 All ER 696 .… 9.13 Morriss v Marsden [1952] 1 All ER 925 .… 2.2, 29.16 Morton v Black (1988) 83 ALR 182 .… 22.8

— v Douglas Homes Ltd [1984] 2 NZLR 548 .… 10.14, 13.71, 29.32, 29.37 — v Knight [1990] 2 Qd R 419 .… 10.12, 10.30 — v State of Tasmania [2006] TASSC 62 .… 9.6, 10.30 Mosley v News Group Newspapers Ltd [2008] EWHC1777 .… 17.4 Moss v Amaca Pty Ltd [2006] WASC 311 .… 9.4 — v Christchurch RDC [1925] 2 KB 750 .… 14.49 Motherwell v Motherwell (1976) 73 DLR (3d) 62 .… 14.43 Motor Accident Insurance Board v Pulford (1993) Aust Torts Reports 81–235 .… 11.28, 11.29 Mouat v Clark Boyce [1992] 2 NZLR 559 .… 10.18, 27.7, 27.45 Moule v Cambooya Shire Council [2004] QSC 50 .… 5.8 Mount Beauty Gliding Club Inc v Jacob (2004) 10 VR 312 .… 12.40 Mount Isa Mines Ltd v Bates (1972) 46 ALJR 408 .… 9.16 — v Pusey (1970) 125 CLR 383 .… 7.25, 7.42, 7.43, 7.45, 7.48, 7.49, 9.7, 9.8, 9.11, 27.8 Movitor Pty Ltd v Sims, Re (1996) 64 FCR 380; 19 ACSR 440 .… 25.42 Mowlds v Fergusson (1946) 64 CLR 206 .… 19.44 Moyne Shire Council v Pearce [2004] VSCA 246 .… 8.33 Mr Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 .… 22.32, 22.33, 22.49, 22.54 Mrs Eaton’s Car Sales Ltd v Thomasen [1973] 2 NZLR 686 .… 27.15 Mt Albert Borough Council v Johnson [1979] 2 NZLR 234 .… 13.73, 26.33, 28.20 Mt Cook Group Ltd v Johnston Motors Ltd [1990] 2 NZLR 488 .… 18.14 Muirhead v Industrial Tank Specialities Ltd [1986] QB 507; [1985] 3 All ER 705 .… 13.56 — v Timbers Bros Sand & Gravel Ltd (1977) 3 CCLT 1 .… 14.9 Mulcahy v Ministry of Defence [1996] QB 732; 2 All ER 758 .… 29.6 Mulgrave v Ogden (1591) Cro Eliz 219 .… 4.22 Mulholland v Mitchell [1971] AC 666 .… 9.22 Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700 .… 7.25 Mullens v Duck [1988] 2 Qd R 674 .… 11.20 Muller v Hatton [1952] St R Qd 150 .… 19.52 — v Lalic [2000] NSWCA 50 .… 7.23 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; 221 ALR 764 .… 7.39, 8.4, 8.10, 8.31 Mullin v Richards [1998] 1 All ER 920 .… 8.16, 10.11 Mulliner v Florence (1878) 3 QBD 484 .… 4.9 Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105 .… 21.14, 21.21, 27.11 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 .… 8.41, 8.42, 8.48, 8.50, 16.27, 16.29 Mundey v Askin [1982] 2 NSWLR 369 .… 18.4, 19.32

Municipal Tramways Trust v Ashby [1951] SASR 61 .… 8.32, 10.10, 10.13 Munnings v Australian Government Solicitor (1994) 118 ALR 385 .… 21.49, 25.1 — v Barrett (1987) 5 MVR 403 .… 5.5 — v Hydro-Electric Commn (1971) 125 CLR 1 .… 7.38 Munro v Southern Dairies Ltd [1955] VLR 332 .… 14.11, 14.15, 14.20, 14.22, 14.25, 14.52, 15.1, 27.51 Munster v Lamb (1883) 11 QBD 588 .… 19.33, 25.1 Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1 .… 25.30 Murphy v Brentwood District Council [1991] 1 AC 398; [1990] 2 All ER 908 .… 1.19, 7.11, 13.18, 13.66, 13.76 — v Corrective Services Commission of New South Wales (SC(NSW), 8 December 1983, unreported) .… 3.32 — v Culhane [1977] QB 94; [1976] 3 All ER 533 .… 6.11, 6.14, 11.38 — v Lush (1986) 65 ALR 651 .… 21.23 — v Overton Investments Pty Ltd (2004) 216 CLR 388; 204 ALR 26 .… 22.47 — v Plasterers Society [1949] SASR 98 .… 18.5 Murray v Commonwealth (1986) 5 NSWLR 83 .… 27.32 — v East India Co (1821) 5 B & Ald 204; 106 ER 1167 .… 28.8 — v Harringay Arena Ltd [1951] 2 KB 529; 2 All ER 320 .… 10.22 — v McMurchy [1949] 2 DLR 442 .… 6.22 — v Minister of Defence [1987] NILR 219 .… 3.16 — v — [1988] 1 WLR 692 .… 3.33, 3.37 — v Morel & Co Ltd [2007] 3 NZLR 721 .… 28.12, 28.14 Musca v Astle Corp Pty Ltd (1988) 80 ALR 251 .… 22.50, 23.4, 23.31, 27.11 Musgrave v Commonwealth (1937) 57 CLR 514 .… 26.60 Mutch v Sleeman (1928) 29 SR (NSW) 125 .… 19.14 Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 .… 7.6, 23.39 — v — [1971] AC 793; 1 All ER 150 .… 13.19, 13.21 Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453 .… 25.31 Myer Stores Ltd v Jovanovic [2004] VSC 478 .… 4.36 — v Soo [1991] 2 VR 597 .… 3.27, 3.29, 3.33, 3.34, 3.37, 27.7, 29.25 Myroft v Sleight (1921) 90 LJKB 883 .… 18.5 N Nada Shah v Sleeman (1917) 19 WALR 119 .… 15.3, 15.12 Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393 .… 7.39, 8.5, 8.10 Nagy v Nagy 258 Cal Rptr 787 (1989) .… 3.23

Naidovski v Crnojlovic (2008) 71 NSWLR 728 .… 11.8 Najjar v Haines (1991) 25 NSWLR 224 .… 25.1 Nakhla v McCarthy [1978] 1 NZLR 291 .… 6.51 Nalder v Commr for Railways [1983] 1 Qd R 620 .… 14.46 Namala v Northern Territory (1996) 131 FLR 468 .… 11.28, 11.29 Nance v British Columbia Electric Railway Co [1951] AC 601; 2 All ER 448 .… 10.9, 10.16 Nancollas v Insurance Officer [1985] 1 All ER 833 .… 26.46 Nann v Raimist 174 NE 690 (1931) .… 21.58 Napaluma v Baker (1982) 29 SASR 192 .… 11.29 Napolitano v Coyle (1977) 15 SASR 559 .… 28.23 Nash v Copeland (1887) 4 WN (NSW) 41 .… 21.21 National Australia Bank Ltd v Nemur Varity Pty Ltd (2002) 4 VR 252 .… 27.15 National Coal Board v England [1954] AC 403; 1 All ER 546 .… 6.58, 8.35 — v J E Evans and Co (Cardiff) Ltd [1951] 2 KB 861; 2 All ER 310 .… 2.2, 4.47, 6.3 National Insurance Co of NZ Ltd v Espagne (1961) 105 CLR 569 .… 11.22 — v Geddes [1936] NZLR 1004 .… 27.36 National Mercantile Bank v Rymill (1881) 44 LT 767 .… 4.28 National Mutual Life Assoc of A’asia Ltd v Coffey & Partners Pty Ltd [1991] 2 Qd R 401 .… 13.71 — v GTV Corp Pty Ltd [1989] VR 747 .… 19.83, 21.51 National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 .… 25.41, 27.41, 29.22 National Provincial Bank Ltd v Ainsworth [1965] AC 1175; 2 All ER 472 .… 5.12 National Union of General & Municipal Workers v Gillian [1946] KB 81; [1945] 2 All ER 593 .… 18.13 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 .… 19.4 — v Murphy (1998) Aust Torts Reports 81–506 .… 18.10 — v Naidu [2007] NSWCA 377 .… 3.22 — v Wiese (1990) 4 WAR 263 .… 19.39 Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 .… 29.30 Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 .… 8.37, 8.40, 9.3, 9.4 Naylor v Oakley Thompson & Co Pty Ltd [2008] VCAT 1724 .… 7.57 Naysmith v Accident Compensation Corporation [2006] 1 NZLR 40 .… 16.24 Neate v Harding (1851) 6 Ex 349; 155 ER 577 .… 27.47 Negretto v Sayers [1963] SASR 313 .… 9.11 Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 .… 8.4, 8.34, 8.38 Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302 .… 22.29, 22.50

Neindorf v Junkovic (2005) 222 ALR 631 .… 7.40, 8.10, 8.13 Nella v Kingia Pty Ltd (1986) 7 IPR 55 .… 22.51 Nelson v Cherrill (1832) 8 Bing 316 .… 4.51 — v John Lysaght (Australia) Ltd (1975) 132 CLR 201 .… 8.31 — v Nelson [1923] St R Qd 37 .… 4.57 — v Raphael [1979] RTR 437 .… 26.17 — v Stocker (1859) 4 De G & J 458; 45 ER 178 .… 29.19 Nelson Guarantee Corp v Farrell [1955] NZLR 405 .… 29.19 Nesterczuk v Mortimore (1965) 115 CLR 140 .… 8.38, 8.47 Netaf Pty Ltd v Bikane Pty Ltd (1990) 92 ALR 490 .… 22.43 Nettleship v Weston [1971] 2 QB 691; [1971] 3 All ER 581 .… 1.16, 8.19, 8.24 Netz v Chuter Ede [1946] Ch 224; 1 All ER 628 .… 6.55 Neumann v The Ship ‘Pelsaert’ [1999] WASC 166 .… 10.17 Neumegen v Neumegen & Co [1998] 3 NZLR 310 .… 22.19 Neville v London ‘Express’ Newspaper Ltd [1919] AC 368 .… 25.34, 25.43 New South Wales v Bujdoso (2005) 227 CLR 1; 222 ALR 663 .… 7.24, 7.30 — v Burton [2006] NSWCA 12 .… 9.2, 9.6, 9.17 — v Corby (2010) 76 NSWLR 439 .… 3.14, 29.23 — v Davies (1996) 43 NSWLR 182 .… 11.22 — v Fahy (2007) 232 CLR 486; 236 ALR 406 .… 7.20, 7.50, 8.4, 8.5 — v Gillett [2012] NSWCA 83 .… 28.13 — v Ibbett (2005) 65 NSWLR 168 .… 27.11 — v — (2006) 229 CLR 638; 231 ALR 485 .… 1.9, 5.1, 5.11, 5.19, 26.40, 27.10, 27.11 — v Knight [2002] NSWCA 392 .… 2.11 — v Koumdjiev (2005) 63 NSWLR 353 .… 5.6 — v Landini [2010] NSWCA 157 .… 27.7 — v Lepore (2003) 212 CLR 511; 195 ALR 412 .… 7.21, 26.26, 26.29, 26.56 — v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489; 116 ALR 363 .… 22.52 — v Moss (2000) 54 NSWLR 536 .… 11.10 — v Quirk [2012] NSWCA 216 .… 25.8, 27.7 — v Radford (2010) 79 NSWLR 327 .… 28.4 — v Riley (2003) 57 NSWLR 496 .… 3.37, 6.14, 6.21 — v Riley [2003] NSWCA 208 .… 6.42 — v RT & YE Falls Investments Pty Ltd (2003) 57 NSWLR 1 .… 22.6 — v Seedsman (2000) 217 ALR 583 .… 7.43

— v — [2000] NSWCA 119 .… 7.47, 7.50 — v Stevens [2012] NSWCA 415 .… 27.3 — v Watton (CA(NSW), 7 December 1998, BC9806562, unreported) .… 7.39, 7.40 — v Zerafa [2005] NSWCA 187 .… 7.24 — v Zreika [2012] NSWCA 37 .… 6.39, 27.7, 27.11 New South Wales Aboriginal Land Council v Jones (1997) 43 NSWLR 300 .… 18.13 New South Wales Dairy Corp v Murray- Goulburn Co-op Co Ltd (1989) 86 ALR 549 .… 22.23, 23.11 — v — (1990) 24 FCR 370; 92 ALR 239 .… 23.11, 22.16, 22.23 — v — (1990) 171 CLR 363; 97 ALR 73 .… 22.16, 22.23 New South Wales Harness Racing Club Ltd v Leichhardt Municipal Council (1997) 97 LGERA 256 . … 21.5, 21.19 New South Wales Insurance Ministerial Corp v Hay (1993) 18 MVR 373 .… 11.28 — v Willis (1995) 35 NSWLR 668 .… 11.44 — v Wynn (1994) Aust Torts Reports 81–304 .… 11.8 New Zealand Baking Trades Employees’ Industrial Union v General Foods Corp (NZ) Ltd [1985] 2 NZLR 110 .… 21.23, 27.51 New Zealand Forest Products Ltd v Attorney- General [1986] 1 NZLR 14 .… 13.6, 13.46 New Zealand Guardian Trust Co Ltd v Brooks [1995] 1 WLR 96 .… 26.15 New Zealand Loan & Mercantile Agency Co Ltd v Mitchell (1906) 26 NZLR 433 .… 27.41, 29.22 New Zealand Meat Board v Meat Industry Association of NZ [2002] NZCA 266 .… 7.14 New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4 .… 19.83 New Zealand Natural Pty Ltd v Granny’s Natural New Zealand Ice Cream Pty Ltd (1990) 19 IPR 214 . … 22.18 New Zealand Post Ltd v Leng [1999] 3 NZLR 219 .… 22.24 New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1975] AC 154; [1974] 1 All ER 1015 . … 10.23 Newbigging v Adam (1887) 34 Ch D 582 .… 23.15 Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 .… 14.13 Newcastle Entertainment Security Pty Ltd v Simpson (1999) Aust Torts Reports 81–528 .… 7.39 Newcrest Mining Ltd v Thornton (2012) 293 ALR 493 .… 29.30 Newell v Lucas [1964–5] NSWR 1597 .… 9.19 Newington v Windeyer (1985) 3 NSWLR 555 .… 5.11, 5.14 Newman v Nugent (1992) 12 WAR 119 .… 11.15 News Group Newspapers Ltd v SOGAT (82) [1987] ICR 181 .… 14.43 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; 139 ALR 193 .… 21.7 News Media Ownership Ltd v Finlay [1970] NZLR 1089 .… 19.44, 19.55

Newsam v Ladd [1972–3] Arg LR 1372 .… 15.14 Newton-John v Scholl-Plough (Australia) Ltd (1986) 11 FCR 233 .… 22.16, 22.21, 22.25 Newtons of Wembley Ltd v Williams [1965] 1 QB 560; [1964] 3 All ER 532 .… 4.25 Neylon v Dickens [1987] 1 NZLR 402 .… 14.6 Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 .… 8.41 Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161 .… 11.47 — v — (No 2) [1992] 1 Qd R 405 .… 11.47 Nicholas v Borg (1986) 7 IPR 1 .… 23.11 Nicholls v Bastard (1835) 2 Cr M & R 659 .… 4.5 — v Ely Beet Sugar Factory Ltd [1936] Ch 343; (1936) 52 LQR 463 .… 14.6, 14.58, 27.3 — v F Austin (Leyton) Ltd [1946] AC 493; 2 All ER 92 .… 16.27 Nichols v Marsland (1875) LR 10 Ex 255 .… 15.18 Nicholson v Nicholson (1994) 35 NSWLR 308 .… 10.8, 11.20, 11.21 — v Walker (1979) 21 SASR 481 .… 9.22 Nickells v Melbourne Corporation (1938) 59 CLR 219 .… 2.3, 2.18 Nicklinson v Ministry of Justice [2012] EWHC 304 .… 6.21 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611; 75 ALR 1 .… 16.34 — v Rabbitt (2000) 31 MVR 416 .… 11.47 Nield v London and North Western Ry Co (1874) LR 10 Exch 4 .… 6.23 Nielsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354 .… 14.46 — v Hempston Holdings Pty Ltd (1986) 65 ALR 302 .… 27.23 Nielsen (FW) (Canberra) Pty Ltd v PDC Constructions (ACT) Pty Ltd (1987) 71 ACTR 1 .… 13.13, 13.14, 13.76 Niemann v John Ellison Hire (Stirling) Pty Ltd (1987) 48 SASR 492 .… 8.4 Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 392; 82 ALR 617 .… 28.21 Nikolic v Commonwealth Accommodation & Catering Services Ltd (1992) 106 FLR 413 .… 29.37 Nilon v Bezzina [1988] 2 Qd R 420 .… 9.17, 9.22, 29.26 NIML Ltd v Man Financial Australia Ltd (2006) 15 VR 156 .… 4.16 Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107; [1967] 3 All ER 187 .… 16.30 Nissan v Attorney-General [1970] AC 179; [1969] 1 All ER 629 .… 6.55 Nistico v Fanning (1990) 54 SASR 6 .… 11.47 Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 All ER 854 .… 28.15 Nixon v Slater & Gordon (2000) 175 ALR 15 .… 18.8, 18.14 NMFM Property Pty Ltd v Citibank Ltd (2000) 107 FCR 270; 186 ALR 442 .… 26.13 Nocton v Lord Ashburton [1914] AC 932 .… 7.20

Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95; 93 ALR 224 .… 28.36, 28.39 Nominal Defendant v Andrews (1969) 121 CLR 562 .… 4.7 — v Haslbauer (1967) 117 CLR 448 .… 2.20, 8.41, 8.42, 8.50 Non-Marine Underwriters, Lloyds of London v Scalera [2000] 1 SCR 551 .… 3.7 Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd (2005) 215 ALR 625 .… 13.34, 23.39 Norberg v Wynrib (1992) 92 DLR (4th) 449 .… 6.7, 6.58 Norglen Ltd v Reeds Rains Prudential Ltd [1999] 2 AC 1; [1998] 1 All ER 218 .… 25.42 Norman v Sutton (1989) 9 MVR 525 .… 24.5 Norris v Blake (No 2) (1997) 41 NSWLR 49 .… 11.8 — v Sibberas [1990] VR 161 .… 13.32, 13.33 Norsk Pacific case (1992) 91 DLR (4th) .… 13.16, 13.52, 13.54 North v Wood [1914] 1 KB 629 .… 15.17 North Central Wagon and Finance Co Ltd v Graham [1950] 1 All ER 780 .… 4.7, 4.27 North Island Wholesale Groceries Ltd v Hewin [1982] 2 NZLR 176 .… 27.23 North Shore City Council v Body Corporate 188529 (Sunset Terraces) [2011] 2 NZLR 289 .… 13.73 North Sydney Council v Binks [2007] NSWCA 245 .… 9.4 Northam v Bowden (1855) 11 Exch 70 .… 4.11 Northern Drivers Union v Kawau Island Ferries Ltd [1974] 2 NZLR 617 .… 21.18 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 .… 7.40, 26.27 Northern Territory v AB (2010) 28 NTLR 1 .… 12.16 — v Deutscher Klub (Darwin) Inc (1994) 4 NTLR 25 .… 7.36 — v Mengel (1995) 185 CLR 307; 129 ALR 1 .… 20.7, 25.28, 25.29, 25.31 Northern Territory of Australia v Deutscher Klub (Darwin) Inc (1994) Aust Torts Reports 81–275 .… 9.6 Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108 .… 8.5 Norton v Hoare (No 1) (1913) 17 CLR 310 .… 19.44 Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d) 221 .… 14.11 Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149; 55 ALR 509 .… 13.34, 23.19 Norwich City Council v Harvey [1989] 1 All ER 1180 .… 10.24 Norwood v Navan [1981] RTR 457 .… 26.17 Nostac Enterprises Pty Ltd v New Concept Import Services Pty Ltd (1981) ATPR 40–235 .… 22.18 Nottingham v Aldridge [1971] 2 QB 739; 2 All ER 751 .… 26.46 Noyes v Huron & Erie Mortgage Corp [1932] 3 DLR 143 .… 14.12 Nunan v Southern Rly Co [1924] 1 KB 223 .… 11.38

Nyberg v Handelaar [1892] 2 QB 202 .… 4.34 Nye v New South Wales (2004) Aust Torts Reports 81–725 .… 25.14 — v — [2003] NSWSC 1212 .… 3.37 NZ Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 .… 25.21, 25.26

O O’Brien v Dawson (1941) 41 SR(NSW) 295 .… 21.14 — v — (1942) 66 CLR 18 .… 21.14, 21.51 — v McNamee [1953] IR 86 .… 29.18 — v Smolonogov (1983) 53 ALR 107 .… 22.8 O’Connell v Jackson [1972] 1 QB 270; [1971] 3 All ER 129 .… 10.7 O’Connor v Bank of New South Wales (1887) 13 VLR 820 .… 27.15 — v — (1889) 14 App Cas 273 .… 27.15 — v British Transport Commn [1958] 1 All ER 558 .… 8.30 — v Hewitson (1979) Crim LR 46 .… 3.37 — v Isaacs [1956] 2 QB 288; 1 All ER 513 .… 25.27 — v Lloyd [1962] WAR 37 .… 11.51 — v Police [2008] NZHC 1588 .… 5.5 — v s P Bray Ltd (1937) 56 CLR 464 .… 16.6, 16.10, 16.12, 16.24, 16.25 — v Sheriff of Queensland (1892) 4 QLJ 213 .… 6.48 — v Waldron [1935] AC 76 .… 19.33 O’Donohue v Wille [1999] NSWSC 661 .… 2.21 O’Hagan v Body Corporate 189855 [2010] NZCA 65 .… 10.14, 10.16 — v Nationwide News Pty Ltd (2001) 53 NSWLR 89 .… 19.77 O’Hara v Central SMT Co Ltd 1941 SC 363 .… 8.50 O’Keeffe v Hickey [2008] IESC 72 .… 7.21 O’Leary v Lamb (1973) 7 SASR 159 .… 13.23 O’Neill v Chisholm (1972) 47 ALJR 1 .… 10.12 — v Foster (2004) 61 NSWLR 499 .… 28.4, 28.9 O’Rourke v Camden London Borough Council [1998] AC 188; [1997] 3 All ER 23 .… 16.8 O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 .… 19.20 — v — (1970) 72 SR (NSW) 347 .… 19.27 O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1 .… 10.30 Oakes v Turquand (1867) LR 2 HL 325 .… 23.15 Oakley v McIntyre [1984] Tas R 44 .… 11.22 Oasis Merchandising Services Ltd, Re [1998] Ch 170; [1997] 1 All ER 1009 .… 25.42

Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150 .… 19.65 OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545 .… 4.16, 21.2, 21.4, 21.6, 21.7, 21.15, 21.16, 21.26, 21.27, 21.28, 21.29, 21.30, 21.53 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29 .… 26.57, 26.58, 26.59 Odhavji Estate v Woodhouse (2003) 233 DLR (4th) 193 .… 25.29, 25.31 Official Assignee v Dowling [1964] NZLR 578 .… 21.14, 29.21 Official Receiver v Feldman (1972) 4 SASR 246 .… 27.3 Oggi Advertising Ltd v McKenzie [1999] 1 NZLR 631 .… 23.7 Ogwo v Taylor [1988] AC 431; [1987] 3 All ER 961 .… 7.26, 10.30 Oldfield v Dabrowski (Fed Ct FC, on appeal from ACT SC, 20 August 1982, unreported) .… 11.52 Oldham v Lawson (No 1) [1976] VR 654 .… 5.12, 14.33 Oliver v Birmingham & Midland Motor Omnibus Co Ltd [1933] 1 KB 35 .… 10.14 Oliveri v Jones [1999] NSWSC 154 .… 5.14 Oliviera v New South Wales (SC(NSW), Spender AJ, 3 July 1995, BC9505034, unreported) .… 7.24 OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 .… 7.36 Omihi Lime Co Ltd v Commr of Inland Revenue [1964] NZLR 731 .… 27.23 Opat v National Mutual Life Assoc of A’asia Ltd [1992] 1 VR 283 .… 13.68 Opperman v Opperman [1975] Qd R 345 .… 24.3, 28.4 Orange v Chief Constable of West Yorkshire Police [2002] QB 347 .… 7.24 Ord v Upton [2000] Ch 352; 1 All ER 193 .… 29.21 Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452 .… 26.60 Oris Funds Management Ltd v National Australian Bank Ltd [2003] VSC 315 .… 4.16 Orix Australia Corporation Ltd v Moody Kiddell & Partners Pty Ltd [2006] NSWCA 257 .… 22.28 Ormrod v Crosville Motor Services Ltd [1953] 2 All ER 753 .… 26.17 — v Huth (1845) 14 M & W 651; 153 ER 636 .… 23.15 Oropesa (The) [1943] P 32; 1 All ER 211 .… 9.13, 27.36 Orr v Isles [1965] NSWR 677 .… 19.71 Orton v Butler (1822) 5 Barn & Ald 652 .… 4.17 Osborn v Veitch (1858) 1 F & F 317 .… 3.18 Osborne v London and North Western Ry Co (1888) 21 QBD 220 .… 10.19 Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153 .… 22.20 Osgood v Attorney-General (1972) 13 MCD 400 .… 26.57 Osman v Ferguson [1993] 4 All ER 344 .… 7.30 Oudaille v Lawson [1922] NZLR 259 .… 23.18 Oughton v Seppings (1830) 1 B & Ad 241; 109 ER 776 .… 27.47

Outram v Academy Plastics Ltd [2001] ICR 367 .… 7.13 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617; [1966] 2 All ER 709 .… 1.15, 8.5, 8.8, 8.21, 9.8, 13.11, 14.2, 14.49, 14.57, 27.15 — v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388; 1 All ER 404 .… 1.15, 7.15, 9.7, 9.8, 9.9, 9.12, 9.23, 27.15 Owen v John L Norris Holdings Pty Ltd [1964] NSWR 1337 .… 14.49 — v Lewyn (1672) 1 Vent 223 .… 4.30 — v O’Connor [1963] SR (NSW) 1051 .… 14.13, 14.56, 27.6 Owen & Smith (t/as Nuagin Car Service) v Reo Motors (Britain) Ltd (1934) 151 LT 274 .… 4.40, 27.7 Owens v Liverpool Corporation [1939] 1 KB 394 .… 7.55 Owners, Strata Plan No 13218 v Woollahra MC (The) (2002) 121 LGERA 117 .… 14.41

P P v P (1994) 181 CLR 583; 120 ALR 545 .… 6.9 P Perl (Exporters) Ltd v Camden LBC [1984] QB 342; [1983] 3 All ER 161 .… 9.16 Pacific Acceptance Corp Ltd v Mirror Motors Pty Ltd (1961) 61 SR (NSW) 548 .… 4.37, 4.39 Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553; 87 ALR 14 .… 22.21, 22.46, 23.11 Padbury v Holliday & Greenwood Ltd (1912) 28 TLR 494 .… 26.35 Padmore v Lawrence (1840) 11 Ad & El 380; 113 ER 460 .… 19.43 Paff v Speed (1961) 105 CLR 549 .… 27.5 Page v Castlemaine City Council (1988) 66 LGRA 296 .… 28.10 — v McGovern (2008) 17 Tas R 208 .… 19.33 — v Newman (1829) 9 B & C 378; 109 ER 140 .… 27.27 — v Smith [1996] AC 155; [1995] 2 All ER 736 .… 7.43 Paine and Co Ltd v St Neots Gas and Coke Co [1939] 3 All ER 812 .… 5.7 Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & El 433 .… 6.47 — v Reed [1930] SASR 295 .… 14.11, 14.20, 14.22, 14.25, 14.28 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 .… 6.6, 6.11 Palmer v Durnford Ford [1992] QB 483; 2 All ER 122 .… 25.1 — v R [1971] AC 814: 1 All ER 1077 .… 6.15, 6.16, 6.41 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 .… 5.16, 23.3, 23.28, 27.15 Palsgraf v Long Island Railroad Co (1928) 248 NY 339 .… 7.15, 8.5 Paltidis v The State Council of the Young Men’s Christian Assn of Victoria Inc (2006) Aust Torts Reports 81–850 .… 10.30 Pamment v Pawelski (1949) 79 CLR 406 .… 27.36 Pannell v Fischer [1959] SASR 77 .… 11.46

Pantalone v Alaouie (1989) 18 NSWLR 119 .… 14.36, 14.49, 16.13, 29.37 Papaconstuntinos v Holmes a Court (2012) 293 ALR 215 .… 19.47 Papadimitropoulos v The Queen (1957) 98 CLR 249 .… 6.7 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 .… 7.38, 7.39, 7.40, 8.24 Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 .… 27.45 Papowski v Commonwealth [1958] SASR 293 .… 11.51 Pappas v Soulac Pty Ltd (1983) 50 ALR 231 .… 22.35, 22.42, 22.48 Paprzik v Tauranga District Council [1992] 3 NZLR 176 .… 14.56 Paramasivam v Flynn (1998) 90 FCR 489; 160 ALR 203 .… 28.25, 28.33 Paris v Stepney Borough Council [1950] 1 KB 320; [1949] 2 All ER 843 .… 8.6 — v — [1951] AC 367; 1 All ER 42 .… 8.1, 8.5, 8.6, 8.7, 8.29, 8.31, 10.25 Park Gate Waggon Works Co, Re (1881) 17 Ch D 234 .… 25.42 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1 .… 22.4, 22.16, 22.19, 22.23, 22.24, 22.25, 22.34 Parke Davis Pty Ltd v Wilkinson Sword Pty Ltd (1981) ATPR 40–271 .… 22.18 Parker v British Airways Board [1982] QB 1004; 1 All ER 834 .… 4.10, 4.13 — v Commonwealth (1965) 112 CLR 295 .… 11.40, 11.41, 11.46, 26.39 — v Dzundza [1979] Qd R 55 .… 24.4 — v Godin (1728) 2 Stra 813 .… 4.27 — v Guardian Fire Sprinkler Co (Qld) Pty Ltd [1982] Qd R 709 .… 27.32 — v SA Housing Trust (1986) 41 SASR 493 .… 7.19, 7.20 — v South Eastern Ry Co (1877) 2 CPD 416 .… 10.23 Parkin v ACT Schools Authority [2005] ACTSC 3 .… 7.21 Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266; [2001] 3 All ER 97 . … 7.13, 7.59 — v — [2004] 1 AC 309; [2003] 4 All ER 987 .… 7.59 Parkview (Keppell) Pty Ltd v Mytarc Pty Ltd (1984) 3 FCR 186 .… 22.24 Parr v Ash (1876) 14 SCR (NSW) 352 .… 4.34, 4.49 Parramatta City Council v Lutz (1988) 12 NSWLR 293 .… 7.36, 9.14, 13.38 Parry v Aluminium Corporation Ltd (1940) 162 LT 236 .… 8.37 — v Cleaver [1970] AC 1; [1969] 1 All ER 555 .… 11.22 — v Flesser [1953] QWN 13 .… 26.17 Parsons v Australian Telecommunications Commn (1983) 28 NTR 19 .… 11.46 — v — (1985) 59 ALR 535 .… 11.46 — v Doukas (2001) 52 NSWLR 162 .… 28.25

— v King (1891) 8 TLR 114 .… 15.14 — v Partridge (1992) 111 ALR 257 .… 2.11, 2.24 — v Surgey (1864) 4 F & F 247; 176 ER 551 .… 19.48 Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791; 1 All ER 525 .… 1.3, 27.45 Partridge v Briggs (SC(Vic), 2 June 1988, Gobbo J, unreported) .… 24.12, 28.4 — v Chick (1951) 84 CLR 611 .… 11.58 — v General Medical Council (1890) 25 QBD 90 .… 25.32 — v Hobart City Council [2010] TASSC 62 .… 7.39 — v — [2012] TASFC 3 .… 11.23 Pask v Owen [1987] 2 Qd R 421 .… 16.22 Pasley v Freeman (1789) 3 TR 51; 100 ER 450 .… 23.14, 23.15 Pasmore v Oswaldtwistle UDC [1898] AC 387 .… 16.3 Pass of Ballater (The) [1942] P 112 .… 26.25 Pastras v Commonwealth [1967] VR 161 .… 9.11, 9.19 Pata Nominees Pty Ltd v Durnsford Pty Ltd [1988] WAR 365 .… 21.10 Patel v W H Smith (Eziot) Ltd [1987] 2 All ER 569 .… 5.4 Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275 .… 7.50 Patrick v Colerick (1838) 3 M & W 483 .… 6.24 Paul Chapman Building Pty Ltd v Boyd (1992) 27 NSWLR 255 .… 20.11 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; 69 ALR 577 .… 1.4 Paxhaven Holdings Ltd v Attorney-General [1974] 2 NZLR 185 .… 14.33, 14.43 Payne v Harrison [1961] 2 QB 403; 2 All ER 873 .… 8.37 Payne v Rogers (1794) 2 H Bl 350; 126 ER 590 .… 14.42 PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 .… 5.9, 5.20 Peabody Donation Fund [1985] AC 210; [1984] 3 All ER 529 .… 7.33 Peachey v Wing (1826) 5 LJ (OS) KB 55 .… 4.48 Pearce v Hailstone (1992) 58 SASR 240 .… 19.53, 19.56 — v Hallett [1969] SASR 423 .… 6.17, 27.11 Pearson v Rose and Young Ltd [1951] 1 KB 275; [1950] 2 All ER 1027 .… 4.25 Pearson (S) & Son Ltd v Dublin Corporation [1907] AC 351 .… 23.35 Peat v Lin [2005] 1 Qd R 40 .… 7.30 Pecar v National Australia Trustees Ltd (unreported, SC NSW 27 November 1996) .… 4.16 Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196 .… 19.63 — v Gurney (1873) LR 6 HL 377 .… 23.18, 23.22 Peerless Bakery Ltd v Watts [1955] NZLR 339 .… 19.35

Peeters v Canada (1993) 108 DLR (4th) 471 .… 26.40 Peisley v Ashfield MC (1970) 21 LGRA 243 .… 14.39 — v — (1971) 23 LGRA 166 .… 14.39 Pelmothe v Phillips (1899) 20 LR (NSW) (L) 58 .… 14.34, 27.15 Pemberton v A-G [1978] Tas SR 1 .… 25.28, 25.29 — v Bright [1960] 1 All ER 792 .… 14.17 — v Southwark London Borough Council [2000] 3 All ER 924 .… 5.11, 14.33 Pemberton National Park Board v Johnson [1966] WAR 61 .… 8.43 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; [1946] ALR 517 .… 4.4, 4.6, 4.22, 4.23, 4.27, 4.48, 4.49, 4.65 Pennell v O’Callaghan [1954] VLR 320 .… 10.14 Pennington v Norris (1956) 96 CLR 10 .… 10.16, 10.17 Penny v Wimbledon Urban District Council [1899] 2 QB 72 .… 14.55, 26.35 Penruddock’s case (1598) 5 Co Rep 100b; 77 ER 210 .… 14.53 Penton v Calwell (1945) 70 CLR 219 .… 19.3, 19.44, 19.56 People Express Airlines Inc v Consolidated Rail Corp 495 A 2d 107 (NJ 1985) .… 13.55 Perera v Peiris [1949] AC 1 .… 19.38 — v Vandiyar [1953] 1 All ER 1109 .… 5.3 Performance Cars Ltd v Abraham [1962] 1 QB 33 .… 9.23 Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd [1924] 1 KB 762 .… 26.3 Perka v The Queen [1984] 2 SCR 232 .… 6.21 Permanent Trustee Australia Ltd v Valeondis (2009) 105 SASR 458 .… 26.12 Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports 80–295 .… 4.5 Perpetual Trustees Australia Ltd v Schmidt [2010] VSC 67 .… 6.14 Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 .… 1.2, 1.19, 1.21, 7.10, 7.11, 7.12, 7.13, 13.10, 13.15, 13.48, 13.49, 13.51, 13.52, 21.7 Perry v Fitzhowe (1846) 8 QB 757 .… 6.26 — v Fried (1973) 32 DLR (3d) 589 .… 25.3 — v Sidney Phillips & Son [1982] 3 All ER 705 .… 5.15 — v West Midlands Precision Engineering Ltd [1998] EWCA Civ 1677 .… 10.18 Peruvian Guano Co Ltd v Dreyfus Brothers and Co [1892] AC 166 .… 4.63, 27.19 Pervan North Queensland Newspaper Co Ltd (1993) 178 CLR 309; 117 ALR 569 .… 19.18 Pete’s Towing Service Ltd v Northern Industrial Union of Workers [1970] NZLR 32 .… 21.35, 21.51 Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 .… 22.18 Peter Isaacson Publications Pty Ltd v Nationwide News Pty Ltd (1984) 56 ALR 595 .… 22.20

Petersville Sleigh Ltd v Sugarman [1988] VR 426 .… 27.3 Petre (Lord) v Heneage (1701) 12 Mod Rep 519 .… 4.22 Petricola v Metropolitan Transit Authority (1989) Aust Torts Reports 80–247 .… 24.3, 28.4 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 .… 19.9 Petrou v Hatzigeorgiou (1991) Aust Torts Reports 81–071 .… 26.52 Petrunic v Barnes (1988) Aust Torts Reports 80–147 .… 9.1 Pettersen v Bacha (1995) 21 MVR 71 .… 11.11 Pettersson v Royal Oak Hotel Ltd [1948] NZLR 136 .… 26.42 Petty v Penfolds Wines Pty Ltd (1994) 49 FCR 282 .… 22.35 Pfeiffer (John) Pty Ltd v Caney (1981) 148 CLR 218; 36 ALR 466 .… 16.31 Pham v Law-son (1997) 68 SASR 124 .… 7.48 Pharmaceutical Management Agency Ltd v Researched Medicines Industry Assoc NZ Inc [1996] 1 NZLR 472 .… 22.7 Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 4 All ER 504 .… 7.12, 7.21, 7.23, 7.33, 16.23 Philip Morris Ltd v Dept of Health and Ageing [2011] AATA 215 .… 6.53 Philippine Admiral (The) [1977] AC 373; [1976] 1 All ER 78 .… 29.7 Philips v William Whitely Ltd [1938] 1 All ER 566 .… 8.24 Phillip Charles Poat v Australian Guarantee Corp Ltd [1996] NTSC 1 .… 4.38 Phillips v Britannia Hygienic Laundry Co [1923] 1 KB 539 .… 8.35 — v — [1923] 2 KB 832 .… 8.35, 16.12, 16.20, 16.23 — v Clagett (1843) 11 M & W 84; 152 ER 725 .… 28.45 — v London and South Western Ry Co (1879) 5 CPD 280 .… 9.22 — v Naylor (1859) 4 H & N 565; 157 ER 964 .… 25.12 Phillis v Daly (1988) 15 NSWLR 65 .… 7.39, 10.16 Philmac Pty Ltd v Wil-liams (1981) 48 SAIR (Pt 2) 451 .… 9.15 Philpott v Kelley (1835) 3 Ad & El 106 .… 4.21 Phipps v Pears [1965] 1 QB 76; [1964] 2 All ER 35 .… 14.24 Phipson Nominees Pty Ltd v French (1988) Aust Torts Reports 80–196 .… 9.2 Phoenix Society Inc v Cavenagh (1996) 25 MVR 143 .… 26.42 Pickering v Liverpool Daily Post & Echo Newspapers plc [1991] 2 AC 370; 1 All ER 622 .… 16.8 — v Ready Mixed Concrete (Qld) Pty Ltd [1967] .… 24.5 — v Rudd (1815) 4 Camp 219 .… 5.3, 5.9 Pickett v British Rail Engineering Ltd [1980] AC 136; [1979] 1 All ER 774 .… 11.39 Pickin v British Railways Board [1974] AC 765; 1 All ER 609 .… 6.53 Picton Jones & Co v Arcadia Developments Ltd [1989] 1 EGLR 43 .… 25.34

Piening v Wanless (1968) 117 CLR 498 .… 8.41, 8.43, 8.44 Pier v Imation Holdings Ltd (HC (NZ), 5 December 2006 Rodney Hansen J, unreported) .… 27.45 Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807 .… 9.14 Pike v Waldrum & P and O Navigation Co [1952] 1 Lloyd’s Rep 431 .… 3.34 Pillipay v Pacific Power & Light Co 207 P 957 (1922) .… 14.12 Pilmer v Duke Group Ltd (2001) 207 CLR 165; 180 ALR 249 .… 10.18 Pinborough v Minister of Agriculture (1974) 7 SASR 493 .… 7.40 Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1; 1 All ER 65 .… 28.2, 28.11, 28.12, 28.15 Piro v W Foster & Co Ltd (1943) 68 CLR 313 .… 16.36 Pisano v Fairfield Municipal Council (1991) 73 LGRA 184 .… 13.26, 13.74 Pittar v Alvarez (1916) 16 SR (NSW) 618 .… 14.9, 14.15 Pittard v Oliver [1891] 1 QB 474 .… 19.56 Piwonski v Knight (2002) 83 SASR 400 .… 8.35 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 .… 11.28 Plasycoed Collieries Co Ltd v Partridge, Jones and Co Ltd [1912] 2 KB 345 .… 4.6 Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 AC 190; [1999] 1 All ER 833 .… 13.39 Plato Films Ltd v Speidel [1961] AC 1090; 1 All ER 876 .… 19.77 Platt v Nutt (1988) 12 NSWLR 231 .… 2.16, 3.8 Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 .… 3.25, 5.1, 5.6, 5.19, 6.5 — v — (1997) 194 LSJS 106 .… 5.19 Plimer v Roberts (1998) 80 FCR 303; 150 ALR 235 .… 22.10 Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 .… 26.41, 26.50 Plummer-Allison v Ayrey [1976] 2 NZLR 254 .… 13.23 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 .… 10.10, 10.17 Poirier v Turkewich (1963) 42 DLR (2d) 259 .… 14.11 Poland v John Parr & Sons [1927] 1 KB 236 .… 26.52 Polemis and Furness Withy & Co, Re [1921] 3 KB 560 .… 9.7, 9.13 Polemis, Re (1951) 14 MLR 393 .… 8.28 Police v Dafov (2008) 102 SASR 8 .… 5.6 — v Greaves [1964] NZLR 295 .… 3.18, 3.19 — v O’Neill [1993] 3 NZLR 712 .… 6.21 Politarhis v Westpac Banking Corp [2009] SASC 96 .… 7.20 Polkinhorn v Wright (1845) 8 QB 197; 115 ER 849 .… 6.18, 6.25 Pollack v Volpato [1973] 1 NSWLR 653 .… 5.3, 5.19, 27.7, 27.11

Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 All ER 84 .… 19.11 Polsue & Alfieri Ltd v Rushmer [1907] AC 121 .… 14.15 Pontardawe Rural Council v Moore-Gwyn [1929] 1 Ch 656 .… 14.27, 14.41 Port v New Zealand Dairy Board [1982] 2 NZLR 282 .… 13.46 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Ltd (1981) 144 CLR 300; 30 ALR 588 .… 10.23 Port Stephens Shire Council v Booth (2005) 148 LGERA 351 .… 13.74 — v Tellamist Pty Ltd (2004) 135 LGERA 98 .… 5.15 Portelli v Tabriska Pty Ltd [2007] NSWSC 1256 .… 7.30 Portland Managements Ltd v Harte [1977] QB 306; [1976] 1 All ER 225 .… 5.14 Posluns v Toronto Stock Exchange (1964) 46 DLR (2d) 210 .… 21.47 Posthuma v Campbell (1984) 37 SASR 321 .… 15.25, 24.16 Postnet Pty Ltd v Wood & Brown [2002] ACTCA 5 .… 9.13 Potter v Faulkner (1861) 1 B & s 800; 121 ER 911 .… 6.18 Potts v Moran (1976) 16 SASR 284 .… 18.7, 19.3 Poulton v Commonwealth (1953) 89 CLR 540 .… 27.41, 29.22 Povey v Qantas Airways Ltd (2005) 223 CLR 189; 216 ALR 427 .… 12.42 Powell v Boladz [1997] EWCA Civ 2002 .… 7.22 — v — [1998] Lloyd’s Rep Med 116 .… 21.53 — v Gelston [1916] 2 KB 615 .… 18.18 — v Phillips [1972] 3 All ER 864 .… 8.35 — v Rees (1837) 7 Ad & E 426; 112 ER 530 .… 27.47 — v Streatham Manor Nursing Home [1935] AC 243; All ER Rep 58 .… 8.36 — v Tasmania (2001) 10 Tas R 283 .… 22.10 Power v Snowy Mountains Hydro Electric Authority [1957] SR (NSW) 9 .… 9.2 Powercor Australia Ltd v Thomas [2012] VSCA 87 .… 11.22 PQ v Australian Red Cross Society [1992] 1 VR 19 .… 8.9 Pratt v British Medical Association [1919] 1 KB 244 .… 21.59 — v Pratt [1975] VR 378 .… 7.49 — v Swaine (1828) 8 B & C 285; 108 ER 1049 .… 28.8 — v Young (1952) 69 WN (NSW) 214 .… 14.23 Pratten v Daily Labour Ltd [1926] VLR 115 .… 18.7 — v Pratten [2005] QCA 213 .… 4.31 Prebble v Television New Zealand Ltd [1995] 1 AC 321; [1994] 3 All ER 407 .… 19.32 Premier Group Pty Ltd v Followmont Transport Pty Ltd [2000] 2 Qd R 338 .… 4.58

Prendergast v Sam & Dee Ltd (1988) The Times, 24 March .… 8.32 Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471 .… 13.23 Prestige Sunglasses Pty Ltd v Bernhaut Nom-inees Pty Ltd (1985) 9 FCR 13 .… 22.20 Preston v Dowell (1987) 45 SASR 111 .… 8.24 Preti v Conservation Land Corporation (No 1) (2007) 20 NTLR 97 .… 11.42 — v Sahara Tours Pty Ltd (2008) 22 NTLR 215 .… 29.41 Price Waterhouse v Kwan [2000] 3 NZLR 39 .… 7.14, 13.27, 27.38 Pricom Pty Ltd v Sgarioto (1994) ATPR 41–365 .… 29.32 Pride of Derby & Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; 1 All ER 179 .… 27.51 Pride Valley Foods Ltd v Hall [2001] EWCA Civ 1001 .… 10.16 Priest v Mowat (No 2) [1937] NZLR 789 .… 27.36 Pringle v Everingham (2006) 46 MVR 58 .… 6.12 Prior v Kemp (FC(WA), 16 November 2001, BC200107134, unreported) .… 6.12 Prismex Technologies Pty Ltd v Keller Industries Pty Ltd [2006] FCA 1504 .… 4.32 Prison Officers Assoc v Iqbal [2010] QB 732; 2 All ER 663 .… 3.31, 3.33 Prisoners A-XX Inclusive v NSW (1995) 38 NSWLR 622 .… 3.26 Pritchard v Post Office (1950) 114 JP 370 .… 8.29 Proceedings Commr v Ali Hatem [1999] 1 NZLR 305 .… 29.14 Producer Meats (North Island) Ltd v Thomas Borthwick & Sons (A’asia) Ltd [1964] NZLR 700 .… 10.23 Proform Sports Management Ltd v Proactive Sports Management Ltd [2007] 1 All ER 542 .… 21.7 Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12 ALR 59 .… 6.59, 16.18 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 .… 7.30 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 .… 14.41, 14.45, 14.53 Proprietors of the Centre Building Units Plan No 343 v Bourne [1984] 1 Qd R 613 .… 5.12 Proudman v Allen [1954] SASR 336 .… 6.21, 6.23 Prudential Building & Investment Socy v Prudential Assurance Co of NZ Ltd [1988] 2 NZLR 653 .… 22.19 Pryor v Government Insurance Office (NSW) (1989) 10 MVR 83 .… 8.36 Psathas v Chenoweth (SA FC, 26 November 1993, unreported) .… 11.8 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2011) 192 FCR 393; 277 ALR 67 .… 29.8 — v — [2012] HCA Trans 101 .… 29.8 PTY Homes Ltd v Shand [1968] NZLR 105 .… 21.45, 21.49 Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107; 14 ALR 273 .… 3.6, 5.10, 6.3, 7.38

Public Trust (WA) v Nickisson (1964) 111 CLR 500 .… 11.51 Public Trustee v Hermann [1968] 3 NSWR 94; (1968) 88 WN (NSW) 442 .… 5.15, 14.49 — v Sutherland Shire Council (1992) Aust Torts Reports 81–149 .… 7.39 — v Taylor [1978] VR 289 .… 23.18 — v Western Hauliers Pty Ltd (1971) 1 SASR 27 .… 8.50 — v Zoanetti (1945) 70 CLR 266 .… 11.40, 11.51, 27.8 Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 .… 28.15 Pullman v Hill & Co [1891] 1 QB 524 .… 18.18 Purcell v Watson (1979) 26 ALR 235 .… 10.9 Purdew v Seress-Smith [1993] IRLR 77 .… 19.33 Purkess v Crittenden (1965) 114 CLR 164 .… 9.19 Pursell v Horn (1838) 8 Ad & El 602 .… 3.13 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 .… 14.9, 14.45 Pyne v Wilkenfield (1981) 26 SASR 441 .… 9.14 Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 .… 1.18, 7.12, 7.17, 7.31, 7.34, 7.36, 16.17

Q Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 .… 21.30 QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 .… 25.14, 25.17, 25.23, 25.26 Quach v Huntof Pty Ltd (2000) 32 MVR 263 .… 25.34 Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743; 2 All ER 38 .… 8.12 Quarman v Burnett (1840) 6 M & W 499; 151 ER 509 .… 26.5 Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 .… 25.16, 25.17, 25.20, 25.21 Queen v Linh Quoc Huynh (The) [2006] VSCA 213 .… 3.27 — v Pedersen (unreported, NZCA, CA 209/04) .… 5.11 Queensland v Nolan [2002] 1 Qd R 454 .… 6.21 Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93 .… 13.79 Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286 .… 18.7, 18.10 Queensland Stations Pty Ltd v Federal Commr of Taxation (1945) 70 CLR 539 .… 26.3, 26.6 Queenstown Lakes District Council v Charterhall Trustees Ltd [2009] 3 NZLR 786 .… 13.73 Quickenden v O’Connor (1999) 91 FCR 597; 166 ALR 385 .… 22.5 Quilty v Bellambi Coal Co Pty Ltd (1966) 67 SR (NSW) 193 .… 16.29 Quinn v Burch Bros (Builders) Ltd [1966] 2 QB 370; [1965] 3 All ER 801 .… 27.39 — v CC Automotive Group Ltd [2010] EWCA Civ 1412 .… 26.53 — v Hill [1957] VR 439 .… 7.24

— v Leathem [1901] AC 495 .… 21.6, 21.24, 21.44 — v Scott [1965] 2 All ER 588 .… 8.7, 8.21 Quintano v BW Rose Pty Ltd [2009] NSWSC 446 .… 10.9 R R v Alexander [1989] 3 NZLR 395 .… 6.45 — v Applebee (1995) 79 A Crim R 554 .… 6.49 — v Austin (No 2) [2010] ACTSC 136 .… 6.49 — v Banner [1970] VR 240 .… 6.45 — v Barker (1978)19 SASR 448 .… 6.44 — v Billingham, Savage and Skinner (1825) 2 C & P 234; 172 ER 106 .… 6.11 — v Billinghurst [1978] Crim LR 553 .… 6.6 — v Blamires Transport Services Ltd [1964] 1 QB 278; [1963] 3 All ER 170 .… 21.47 — v Bottrill; Ex parte Kuechenmeister [1947] KB 41 .… 6.55 — v Bournewood Community and Mental Health NHS Trust; Ex parte L [1999] 1 AC 458; [1998] 3 All ER 289 .… 3.26, 3.33, 6.21 — v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61; [1998] 4 All ER 897 .… 6.55 — v Bree [2008] QB 131; [2007] 2 All ER 676 .… 6.5 — v Buchinsky (1983) 145 DLR (3d) 1 .… 20.14, 20.16, 20.19 — v Chaytor [2011] 1 AC 684; 1 All ER 804 .… 6.53 — v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 2 QB 458; [1981] 3 All ER 826 .… 6.26, 6.37 — v Christiansen [2001] NZCA 246 .… 6.17 — v Clark (Serial No 50/1984, unreported) .… 6.45 — v Clegg [1995] 1 AC 482; 1 All ER 334 .… 6.15 — v Clifford [1980] 1 NSWLR 314 .… 14.54 — v Clune [1982] VR 1 .… 6.45 — v Cotesworth (1704) 6 Mod Rep 172 .… 3.11 — v Cuerrier (1996) 141 DLR (4th) 503 .… 6.7 — v Day (1845) 4 LT OS 493 .… 3.13 — v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; [1991] 3 All ER 733 .… 3.25, 3.26, 16.8, 16.23 — v Donovan [1934] 2 KB 498 .… 3.7 — v Drinkwater (1981) 27 SASR 396 .… 15.12 — v Dudley and Stephens (1884) 15 Cox CC 624; 14 QBD 273 .… 6.21 — v Eyres (1977) 16 SASR 226 .… 6.44

— v Fahey [2000] NZCA 48 .… 5.6 — v Fraser [2005] 2 NZLR 109 .… 5.5 — v Gabriel [2004] ACTSC 30 .… 3.19, 3.20 — v Galvin (No 1) [1961] VR 733 .… 6.41 — v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19; [2000] 4 All ER 15 .… 3.25 — v Graham-Campbell; Ex parte Herbert [1935] 1 KB 594 .… 6.53 — v Grassby (1991) 55 A Crim R 419 .… 19.32 — v Hansford (1974) 8 SASR 164 .… 4.17 — v Holmes [1981] 2 All ER 612 .… 6.45 — v Hopley (1860) 2 F & F 202; 175 ER 1024 .… 6.32 — v Howe (1958) 100 CLR 448 .… 6.15 — v — [1958] SASR 95 .… 6.15 — v Howell [1982] QB 416; [1981] 3 All ER 383 .… 6.37 — v Howson (1966) 55 DLR (7d) 582 .… 6.28 — v ICR Haulage Ltd [1944] KB 551; 1 All ER 691 .… 21.47 — v Iorlano (M & G), Re Mullally; Ex parte Attorney-General (Cth) (1983) 151 CLR 678; 50 ALR 291 .… 6.44 — v Ireland [1998] AC 147 .… 3.19 — v Jackson (1822) Russ & Ry 487; 168 ER 911 .… 6.7 — v James Smith (1876) 14 SCR (NSW) 419 .… 6.37 — v Jeffries (1946) 47 SR (NSW) 284 .… 6.44 — v Johnson (1805) 29 State Tr 414; 7 East 65; 103 ER 26 .… 6.51 — v Johnston [1964] Qd R 1 .… 6.41 — v Kazakoff [2001] 2 Qd R 320 .… 12.15 — v Kelly; R v Lindsay [1999] QB 621 .… 4.16 — v Knight (1988) 35 A Crim R 314 .… 3.20 — v Knightsbridge Crown Court; Ex parte Umeh [1979] Crim LR 727 — v Knowsley Metropolitan Borough Council, Ex parte Maguire (1992) 90 LGR 653 .… 25.28 — v Lam [2005] VSC 296 .… 9.14 — v Lamsatef [1977] 2 All ER 835 .… 6.44 — v Larson and Lees [1984] VR 559 .… 6.45 — v Linekar [1995] 3 All ER 69 .… 6.7 — v MacGowan [1984] 3 NSWLR 440 .… 12.16 — v Macquarie (1875) 13 SCR (NSW) 264 .… 3.28, 3.29 — v Manchester City Magistrates’ Court; Ex parte Davies [1989] QB 631; 1 All ER 90 .… 6.51

— v Masnec [1962] Tas SR 254 .… 6.41 — v McMeikan (1869) 6 WW & a’B (L) 68 .… 14.45 — v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118; 1 All ER 763 .… 7.30 — v Miller (1980) 25 SASR 170 .… 6.46 — v Mobilio [1991] 1 VR 339 .… 6.7 — v Murphy (1986) 5 NSWLR 18 .… 6.53 — v Newport (Salop) Justices, Ex parte Wright [1929] 2 KB 416 .… 6.32 — v Phillips (1971) 45 ALJR 467 .… 3.5, 3.20 — v Pou [2002] 3 NZLR 637 .… 5.5 — v Ramalingam [2011] ACTSC 86 .… 3.16 — v Ratima and Warren [1999] NZCA 307 .… 5.5 — v Reid [1973] QB 299; [1972] 2 All ER 1350 .… 6.30 — v Reynhoudt (1962) 107 CLR 381 .… 6.41 — v Richardson and Adams [1948] 2 DLR 305 .… 20.19 — v Roberts [1954] 2 QB 329; [1953] 2 All ER 340 .… 6.44 — v Rule [1937] 2 KB 375; 2 All ER 772 .… 19.43 — v Sanders [1994] 3 NZLR 451 .… 6.47 — v Saskatchewan Wheat Pool (1983) 143 DLR (3d) 9 .… 16.7 — v Saunders (1838) 8 Car & P 265; 173 ER 488 .… 6.7 — v Shorrock [1994] QB 279; [1993] 3 All ER 917 .… 14.37 — v Solanki NZCA CA106/05 [6 September 2005] .… 3.16 — v St George (1840) 9 C & P 483 .… 3.18 — v St Georges’ Union (1871) LR 7 QB 90 .… 5.11 — v Stafford (1976) 13 SASR 392 .… 6.42, 6.44 — v Tate [2010] ACTSC 144 .… 3.10 — v Terry [1955] VLR 114 .… 6.31, 6.32, 6.33 — v Thomas [1991] 3 NZLR 141 .… 6.17 — v Tommy Ryan (1890) 11 LR(NSW) 171 .… 6.41 — v Turner [1962] VR 30 .… 6.40 — v Welch [2009] ACTSC 35 .… 6.42 — v Williams [1923] 1 KB 340 .… 6.7 — v Wilson [1955] 1 All ER 744 .… 3.19 — v Winchester [2011] QCA 374 .… 6.7 — v Wraight [1980] Qd R 582 .… 12.16 — v Wright (1799) 8 TR 293; 101 ER 1396 .… 19.40

— v Young (1878) 38 LT 540; 14 Cox CC 114 .… 6.7 R (Atapattu) v Home Secretary [2011] EWHC 1388 .… 4.58 R (Factortame Ltd) v Secretary of State for the Environment (No 8) [2003] QB 381; [2002] 4 All ER 97 .… 25.37 R (Kambadzi) v Home Secretary [2011] 1 WLR 1299; 4 All ER 975 .… 6.49 R (Laporte) v Chief Constable of Gloucester Constabulary [2007] 2 AC 105; 2 All ER 529 .… 6.37 R (Munjaz) v Mersey Care NHS Trust [2004] QB 395 .… 3.26 — v — [2006] 2 AC 148; [2004] 4 All ER 736 .… 3.26 R (Sino) v Home Secretary [2011] EWHC 2249 .… 6.49 R and A-G (Cth) v Associated Northern Collieries (1911) 14 CLR 387 .… 21.47 R B Policies at Lloyd’s v Butler [1950] 1 KB 76; [1949] 2 All ER 226 .… 28.8 R H Willis and Son v British Car Auction Ltd [1978] 2 All ER 392 .… 4.28 Rabadan v Gale [1996] 3 NZLR 220 .… 28.16 Raciti v Hughes (1995) 7 BPR 14,837 .… 14.11 Racz v Home Office [1994] 2 AC 45; 1 All ER 97 .… 25.29, 25.30, 26.42 Radford v Ward (1990) 11 MVR 509 .… 10.28 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606 .… 18.7 — v Parker (1992) 29 NSWLR 448 .… 19.17, 19.44 Radley v London & North Western Ry Co (1876) 1 App Cas 754 .… 10.5 Radstock Co-operative & Industrial Socy Ltd v Norton-Radstock UDC [1968] Ch 605; 2 All ER 59 .… 14.40 Ragnelli v David Jones (Adelaide) Pty Ltd [2004] SASC 393 .… 8.5 RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164; 112 ALR 511 .… 17.15, 22.26, 22.30, 23.3 Rail Corp of NSW v Fluor Australia Pty Ltd [2009] NSWCA 344 .… 13.52 Rainbow Industrial Caterers Ltd v Canadian National Rly Co (1991) 84 DLR (4th) 291 .… 13.41 Rajski v Powell (1987) 11 NSWLR 522 .… 6.51, 25.1 Ralph v Henderson & Pollard Ltd [1968] NZLR 759 .… 8.15, 8.16 Ramage v Sharp (1993) ATPR 41–242 .… 22.8 — v — (1995) 12 WAR 325 .… 22.8 Ramco v Gan Soo Swee [1971] 3 All ER 320 .… 29.36 Ramsay v Larsen (1964) 111 CLR 16 .… 6.33, 26.29, 26.59 — v Pigram (1968) 118 CLR 271 .… 26.59 Rance v Mid-Downs Health Authority [1991] 1 QB 587; 1 All ER 801 .… 7.16 Rand Ltd v Craig [1919] 1 Ch 1 .… 26.51 Randall v Tarrant [1955] 1 All ER 600 .… 5.7

Randel v Brisbane City Council [1984] 2 Qd R 276 .… 28.27 Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224 .… 18.3, 18.7 Rands v McNeil [1955] 1 QB 253; [1954] 3 All ER 593 .… 15.14 Randwick Municipal Council v Commissioner for Government Transport [1967] 1 NSWR 428 .… 6.26 Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union (1987) 54 NTR 6 .… 21.18, 21.40 Ranieri v Ranieri (1973) 7 SASR 418 .… 10.29 Rankine v Garton Sons & Co Ltd [1979] 2 All ER 1185 .… 7.3 Rann v Olsen (2000) 76 SASR 450 .… 19.32 Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571 .… 4.26 Rapley v Rapley (1930) 30 SR (NSW) 94 .… 25.7, 25.14, 25.15 Ratcliff v McConnell [1999] 1 WLR 670 .… 10.30 Ratcliffe v Evans [1892] 2 QB 524 .… 18.7, 23.2, 27.5 Ratcliffe v Jackson (1994) Aust Torts Reports 81–284 .… 8.32 Ravenga v Mackintosh (1824) 2 B & C 693; 107 ER 541 .… 25.11 Rawlings v Till (1837) 3 M & W 28 .… 3.10 Rawlinson v Oliver [1995] 3 NZLR 62 .… 19.33 — v Purnell Jenkinson & Roscoe [1999] 1 NZLR 479 .… 25.21 — v Rice (No 2) [1998] 1 NZLR 454 .… 25.27 Rawlinson & Brown Pty Ltd v Witham (1995) Aust Torts Reports 81–341 .… 13.23 Rayner v Mitchell (1887) 2 CPD 357 .… 26.49 — v Shearing [1926] SASR 313 .… 15.4 Rayson v South London Tramways Co [1893] 2 QB 304 .… 25.17, 25.19 RCA Corporation v Pollard [1983] Ch 135; [1982] 3 All ER 771 .… 16.14, 21.28 Read v Coker (1853) 13 CB 850 .… 3.16, 3.19 — v Edwards (1864) 17 CB (NS) 245; 144 ER 99 .… 15.16 — v Friendly Society of Operative Stonemasons [1902] 2 KB 732 .… 21.18 Reader v Molesworth Bright Clegg [2007] 3 All ER 107 .… 11.32 Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873 .… 23.7 Redding v Lee (1983) 151 CLR 117; 47 ALR 241 .… 11.22, 11.23 Redgrave v Hurd (1881) 20 Ch D 1 .… 23.15, 23.16 Redland Bricks Ltd v Morris [1970] AC 652; [1969] 2 All ER 576 .… 27.51 Reef Shipping Co Ltd v The Ship ‘Fua Kavenga’ [1987] 1 NZLR 550 .… 29.7 Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091; 4 All ER 987 .… 7.12 — v — [2003] QB 20; [2002] 2 All ER 177 .… 7.59

— v — [2004] 1 AC 309; [2003] 4 All ER 987 .… 7.59 — v Sinclair [1974] 1 NZLR 180 .… 7.57 Reeve v Palmer (1858) 27 LJ CP 327; 5 CB (NS) 84; 141 ER 33 .… 4.56 Reeves v Metropolitan Police Commissioner [1998] 2 All ER 381 .… 9.14 — v — [2000] 1 AC 360; [1999] 3 All ER 897 .… 9.5, 9.14, 11.36 — v New South Wales [2010] NSWSC 611 .… 7.13 Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135; [2006] 4 All ER 48 .… 14.51 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1 .… 19.73 Reglon Pty Ltd v Hill [2006] NSWSC 1360 .… 4.34 Reibl v Hughes (1980) 114 DLR (3d) .… 6.8 Reid v Fairbanks (1853) 13 CB 692 .… 4.40 Reindel v James Hardie & Co Pty Ltd [1994] 1 VR 619 .… 11.40, 27.12 Reinhold v NSW Lotteries Corp (No 2) [2008] NSWSC 187 .… 29.42 Reis v Perry (1895) 64 LJ QB 566 .… 19.42 Reitano v Jones (2001) 54 NSWLR 661 .… 21.49 Reliance Car Facilities Ltd v Roding Motors [1952] 2 QB 844; 1 All ER l .… 4.7 Reliance Finance Corp Pty Ltd v Orwin, Walshe and Ward [1964–5] NSWR 970 .… 5.20 Rely-a-Bell Burglar & Fire Alarm Co Ltd v Eisler [1926] Ch 609 .… 21.22 Remorquage a Helice (SA) v Bennetts [1911] 1 KB 243 .… 13.59 Rendell v Associated Finance Pty Ltd [1957] VR 604 .… 4.18, 4.22, 6.2 Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 151 NTR 1 .… 11.9 Rennie v Commonwealth (1995) 61 FCR 351 .… 13.33 Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 .… 19.14, 19.22 Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (2009) 263 ALR 93 .… 16.24 Repco Corp Ltd v Scardamaglia [1996] 1 VR 7 .… 28.25 Revenue and Customs Commissioners v Total Network SL [2008] AC 1174; 2 All ER 413 .… 21.27, 21.53 Revesz v Commonwealth (1951) 51 SR (NSW) 63 .… 7.35 Revill v Newbery [1996] QB 567; 1 All ER 291 .… 6.18 Revis v Smith (1856) 18 CB 126; 139 ER 1314 .… 19.34 Reynolds v Clarke (1725) 2 Ld Raym 1399 .… 5.2 — v Kennedy (1748) 1 Wils KB 232; 95 ER 591 .… 25.5 — v Times Newspapers Ltd [2001] 2 AC 127; [1999] 4 All ER 609 .… 19.61, 19.66, 19.67 RH Willis & Son v British Car Auctions Ltd [1978] 2 All ER 392 .… 4.18 Rhodes v Moules [1895] 1 Ch 236 .… 4.39

Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477; 68 ALR 77 .… 23.3, 23.38, 22.40 Ricardo Pty Ltd v Toppi (No 2) [1998] NSWSC 576 .… 4.39 Rice v Reed [1900] 1 QB 54 .… 28.43 Ricegrowers’ Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR 40–778 .… 22.20 Rich v Commr for Railways (NSW) (1959) 101 CLR 135 .… 7.38 Rich (Marc) & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211; [1995] 3 All ER 307 .… 1.18 Richard Evans & Co Ltd v Astley [1911] AC 674 .… 8.38 Richards v Davies [1921] 1 Ch 90 .… 5.7 — v Mills (2003) 27 WAR 200 .… 11.22 — v Naum [1967] 1 QB 620; [1966] 3 All ER 812 .… 19.35 — v State of Victoria [1969] VR 136 .… 7.21, 9.7 Richardson v Atkinson (1723) 1 Stra 576 .… 4.21 — v Mt Druitt Workers Club [2011] NSWSC 31 .… 9.6 — v O’Neill [1959] NZLR 540 .… 29.39, 29.40 — v Pitt-Stanley [1995] QB 123; 1 All ER 460 .… 16.14, 16.20 — v Schultz (1980) 25 SASR 1 .… 27.21 — v Sunraysia Institute of TAFE [2001] VSCA 170 .… 10.16 Riches v Director of Public Prosecutions [1973] 2 All ER 935 .… 25.12 Richley v Faull [1965] 3 All ER 109 .… 8.42 Richmond City Council v Scantelbury [1991] 2 VR 38 .… 14.41 Richmond City v Scantelbury [1991] 2 VR 38 .… 14.53 Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 .… 11.36 Rick Cobby Haulage Pty Ltd v Simsmetal Pty Ltd (1986) 43 SASR 533 .… 4.20 Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (2004) 220 ALR 267 .… 27.41 Ricketts v Thos Tilling Ltd [1915] 1 KB 644 .… 26.44 Rickless v United Artists Corp [1988] QB 40; [1987] 1 All ER 679 .… 16.14 Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd (1993) 41 FCR 229; 113 ALR 30 .… 22.48 Riddick v Thames Board Mills Ltd [1977] QB 881; 3 All ER 677 .… 18.18, 19.46, 19.57 Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242 .… 6.21, 6.22, 6.23, 7.33, 8.7 Rigg v Alietti [1982] WAR 203 .… 15.23, 15.25 Rigter v J C Taylor Constructions Pty Ltd (1974) 9 SASR 282 .… 16.37 Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561 .… 22.35 Rinsale Pty Ltd v ABC (1993) Aust Torts Reports 81–231 .… 5.1, 5.22

River Wear Comrs v Adamson (1877) 2 App Cas 743 .… 2.18 Rivtow Marine Ltd v Washington Iron Works (1973) 40 DLR (3d) 530 .… 13.65, 13.64 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 .… 3.5 RM Turton & Co Ltd v Kerslake & Partners [2000] 3 NZLR 406 .… 7.14 Roads and Traffic Authority v Cremona (2001) 35 MVR 190 .… 11.46 — v Ryan (2005) 62 NSWLR 609 .… 29.41 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761 .… 7.40, 8.1, 8.4, 8.14, 8.31, 8.33, 8.36, 10.27 — v McGregor (2005) 44 MVR 261 .… 11.17 Robb v Everard [1999] EWCA Civ 1022 .… 9.8 — v Morrison (1920) 20 SR (NSW) 163 .… 18.18 Robert v Czycyerskyj [1961] WAR 175 .… 14.48 Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 .… 7.38 Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 .… 19.49, 19.53, 19.54, 19.57, 19.63, 19.64 — v Chief Constable of the Cheshire Constabulary [1999] 2 All ER 326 .… 3.37 — v Johnstone [1989] QB 878 .… 11.21 — v Ramsbottom [1980] 1 All ER 7; [1980] 1 WLR 823 .… 3.6, 8.19, 29.16 — v Roberts (1657) Hard 96 .… 6.31 — v — [1957] Tas SR 84 .… 4.35, 4.52 — v Rose (1864) 3 H & C 162 .… 6.26 — v — (1865) 4 H & C 103 .… 6.26 — v Taylor (1845) 1 CB 117 .… 6.18 — v Wyatt (1810) 2 Taunt 268 .… 4.4 Robertson v Belson [1905] VLR 555 .… 23.18 — v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246 .… 18.13 — v Ridley [1989] 2 All ER 474 .… 29.13 — v Swincer (1989) 52 SASR 356 .… 1.16, 7.23, 24.15, 24.16 — v Western Australia (1997) 92 A Crim R 115 .… 6.47 Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 .… 22.10 Robins Dry Dock & Repair Co v Flint 275 US 303; 72 L Ed 290 (1927) .… 13.59 Robinson v Abbott (1894) 20 VLR 346 .… 23.15 — v Balmain New Ferry Co Ltd (1906) 4 CLR 379 .… 3.31 — v — [1910] AC 295 .… 3.31 — v Beaconsfield Rural Council [1911] 2 Ch 188 .… 26.25, 26.35 — v Craven (1994) 63 SASR 267 .… 28.2

— v Glover [1952] NZLR 669 .… 8.19 — v Kilvert (1889) 41 Ch D 88 .… 14.12 — v Kuwait Liaison Office (1997) 145 ALR 68 .… 29.8 — v Post Office [1974] 2 All ER 737 .… 9.11, 9.17 — v Tait [2002] 2 NZLR 30 .… 29.28 Robshaw v Smith (1878) 38 LT 423 .… 19.46 Robson v Hallett [1967] 2 QB 939; 2 All ER 407 .… 5.5, 6.12 — v Leischke (2008) 72 NSWLR 98 .… 14.41 Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 .… 9.2 Rocca v Manhire (1992) 57 SASR 224 .… 19.25 Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184 .… 8.34, 8.37 Roche v Douglas (2000) 22 WAR 331 .… 4.16 Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 .… 19.77 Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196 .… 3.37 Rodgers v Maw (1846) 15 M & W 444; 153 ER 924 .… 27.47 Rodrigues v Ufton (1894) 20 VLR 539 .… 5.11, 5.23 Roe v Minister of Health [1954] 2 QB 66; 2 All ER 131 .… 7.3, 7.4, 7.15, 8.23, 8.46, 26.7, 26.29 Rogers v Legal Services Commission (1995) 64 SASR 572 .… 25.30 — v Macnamara (1853) 14 CB 27 .… 4.65 — v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184 .… 19.41 — v Rawlings [1969] Qd R 262 .… 7.23, 24.15 — v Television New Zealand Ltd [2008] 2 NZLR 277 .… 17.4 — v Whitaker (1992) 175 CLR 479; 109 ALR 625 .… 6.8, 7.22, 8.2, 8.24, 8.27, 8.35 Rogerson v Law Society of the Northern Territory (1991) 1 NTLR 100 .… 25.37 Roggenkamp v Bennett (1950) 80 CLR 292 .… 10.12, 10.22, 10.28 Rokich v Gianoli (FC(WA), 4 March 1997, unreported) .… 15.20 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd (2001) 53 NSWLR 626 .… 29.39 Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340 .… 22.18 Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 .… 7.14, 13.14 Rolton v Dalgety Farmers Ltd (1992) 58 SASR 581 .… 20.15 Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 .… 26.11 Roman Catholic Church, Diocese of Bathurst, Trustees of v Koffman (1996) Aust Torts Reports 81– 399 .… 7.4, 7.21 Roman v Commonwealth [2004] NTSC 9 .… 3.29 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263 .…

7.10, 7.12, 7.34, 7.39, 8.5, 8.8, 8.10 Ron West Motors Ltd v Broadcasting Corp of NZ (No 2) [1989] 3 NZLR 520 .… 17.15, 19.83 Ronald v Harper [1913] VLR 311 .… 19.34 Roncarelli v Duplessis (1959) 16 DLR (2d) 689 .… 25.31, 25.32 Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993 .… 7.57 Rookes v Barnard [1964] AC 1129; 1 All ER 367; .… 4.40, 21.8, 21.24, 21.31, 21.36, 27.7, 27.10 Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231 .… 21.14 Rootes v Shelton (1967) 116 CLR 383 .… 10.22, 10.26 Rooth v Wilson (1817) 1 B & Ald 59 .… 4.48 Rose v Ford [1937] AC 826; 3 All ER 359 .… 11.33, 11.55 Rosebanner Pty Ltd v Energy Australia [2011] NSWCA 28 .… 6.49 Rosecrance v Rosecrance (1995) 105 NTR 1 .… 1.17, 11.21 — v — (1998) 8 NTLR 1 .… 11.21 Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 .… 8.2, 8.7, 8.23, 8.31, 8.35, 9.3, 9.4, 9.6 Rosenthal v Alderton and Sons Ltd [1946] KB 374; 1 All ER 583 .… 4.63 Roshik v Pachkowsky (1980) 4 Man R (2d) 181 .… 27.19 Ross v Associated Portland Cement Manufacturers Ltd [1964] 2 All ER 452 .… 16.34 — v Caunters [1980] Ch 297; [1979] 3 All ER 580 .… 7.22, 13.77 — v Edwards (1895) 73 LT 100 .… 4.15 — v Rugged-Price (1876) 1 Ex D 269 .… 16.11, 16.13 — v Town of Victoria Park [1999] WASC 91 .… 5.4 — v Warrick Howard (Australia) Pty Ltd (1986) 4 SR (WA) 1 .… 2.11, 2.14 Ross & Glendining Ltd v Hancock & Co [1929] NZLR 204 .… 14.37 Ross (Sid) Agency Pty Ltd v Actors & Announcers Equity Assn [1971] 1 NSWLR 760 .… 14.43 Rothwell v Chemical & Insulating Co Ltd, Re Pleural Plaques Litigation [2008] 1 AC 281; [2007] 4 All ER 1047 .… 1.14, 27.8 Rouse v Shepherd (1994) 35 NSWLR 250 .… 11.46, 11.47 — v Squires [1973] QB 889; 2 All ER 903 .… 9.17 Roux v Australian Broadcasting Commn [1992] 2 VR 577 .… 25.40 Rowan v Attorney-General [1997] 2 NZLR 559 .… 16.23 — v Cornwall (1997) 68 SASR 253 .… 19.32 — v — (No 5) (2002) 82 SASR 152 .… 17.3, 18.16, 25.32 Rowe v Herman [1997] 1 WLR 1390 .… 26.36 — v McCartney [1976] 2 NSWLR 72 .… 7.42, 9.7, 9.8, 9.13 — v Scanlan [1969] 1 NSWR 43 .… 11.51

— v Turner Hopkins & Partners [1980] 2 NZLR 550 .… 10.18, 27.39 — v — [1982] 1 NZLR 178 .… 27.39 Rowlands v Callow [1992] 1 NZLR 178 .… 27.7 — v Chief Constable of Merseyside Police [2007] 1 WLR 1065 .… 26.40 Rowling v Takaro Properties Ltd [1988] AC 473; 1 All ER 163 .… 7.33, 13.6, 13.21, 13.38 Rowning v Goodchild (1773) 2 W B1 906; 96 ER 536 .… 16.2 Roy v Prior [1971] AC 470; [1970] 2 All ER 729 .… 25.1 Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431 .… 19.33, 19.50 Royscot Trust Ltd v Rogerson [1991] 2 QB 297; 3 All ER 294 .… 23.28 Rubenstein v HSBC Bank plc [2012] All ER (D) 75 (Sep) .… 13.40 Ruddiman & Co v Smith (1889) 60 LT 708 .… 26.47 Ruddock v Taylor (2003) 58 NSWLR 269 .… 3.25 — v — (2005) 222 CLR 612; 221 ALR 32 .… 3.34 Rufo v Hosking [2004] NSWCA 391 .… 9.4 Ruhan v The Water Conservation and Irrigation Commission (1920) 20 SR (NSW) 439 .… 5.11, 14.33 Rumcoast Holdings Pty Ltd v Prospero Publishing Pty Ltd (1999) 152 FLR 240 .… 22.23 Russell v Craddock [1985] 1 Qd R 377 .… 10.10 — v Jorgenson (1909) 9 SR (NSW) 164 .… 10.14 — v McCabe [1962] NZLR 392 .… 7.25, 7.27 — v Rail Infrastructure Corp [2007] NSWSC 402 .… 10.11 Russell Transport Ltd v Ontario Malleable Iron Co [1952] 4 DLR 719 .… 14.9 Rust v Needham (1974) 9 SASR 510 .… 8.20 Rutherford v A-G [1976] 1 NZLR 403 .… 13.26 — v Hawke’s Bay Hospital Board [1949] NZLR 400 .… 26.43 — v Poole [1953] VLR 130 .… 21.14 Ryan v Ann St Holdings Pty Ltd [2006] 2 Qd R 486 .… 26.43 — v ETSA (1987) 47 SASR 220 .… 8.4, 8.8 — v Fildes [1938] 3 All ER 517 .… 6.32 — v Lum (1989) 86 ALR 670 .… 22.46 — v State Rail Authority of NSW [1999] NSWSC 1236 .… 7.40, 8.16 — v Youngs [1938] 1 All ER 522 .… 8.17 Ryde City Council v Tourtouras [2007] NSWCA 218 .… 13.74 Ryder v Wombell (1868) LR 4 Exch 32 .… 8.38 Rylands v Fletcher (1866) LR 1 Ex 265 .… 8.4, 15.2, 15.10, 15.11, 26.31 — v — (1868) LR 3 HL 330 .… 26.31

S S v Attorney-General [2003] 3 NZLR 450 .… 26.40, 26.55, 28.14, 28.31 — v Crimes Compensation Tribunal [1998] 1 VR 83 .… 12.16 — v G [1995] 3 NZLR 681 .… 28.14 — v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217; 216 ALR 252 .… 26.30 — v Turner (1979) 1 NTR 17 .… 12.16 S & B Pty Ltd v Podobnik (1994) 53 FCR 380 .… 28.25 S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354; 168 ALR 396 .… 22.19 S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14 .… 12.12 S (Adult Patient: Sterilisation), Re [2001] Fam 15 .… 6.10 SA Management Corp v Sheahan (1995) 16 ACSR 45 .… 25.41, 27.41, 29.22 Sacca v Adam (1983) 33 SASR 429 .… 13.34, 23.19 Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552 .… 29.33 Sachs v Miklos [1948] 2 KB 23; 1 All ER 67 .… 4.27, 4.39, 4.40 Sadgrove v Hole [1901] 2 KB 1 .… 18.18 Sadler v South Staffs Tramways Co (1889) 23 QBD 17 .… 3.12 Safari 4x4 Engineering Pty Ltd v Doncaster Motors Pty Ltd [2006] VSC 460 .… 4.18 Safeway Stores Ltd v Twigger [2010] EWHC 11 (Comm) .… 6.58 Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty Ltd [2007] QSC 264 .… 21.9 Said v Butt [1920] 3 KB 497 .… 21.7, 21.14 Saif Ali v Sydney Mitchell & Co [1980] AC 198 .… 7.57, 8.27 Sainsbury v Great Southern Energy Pty Ltd [2000] NSWSC 479 .… 8.16 Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 524 .… 22.28 Salaman v Secretary of State for India [1906] 1 KB 613 .… 6.55 Saler v Klingbiel [1945] SASR 171 .… 6.17 Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264 .… 7.26 Salsbury v Woodland [1970] 1 QB 324; [1969] 3 All ER 863 .… 26.36 Salvin v North Brancepeth Coal Co (1874) 9 Ch App 705 .… 14.8 Samios v Repatriation Commn [1960] WAR 219 .… 26.7 Sampson v Hodson-Pressinger [1981] 3 All ER 710 .… 14.37 Samuel and Escombe v Rowe (1892) 8 TLR 488 .… 4.40 Samuel Trustee v Kerman, Re [1945] Ch 408; 2 All ER 437 .… 4.28 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979

(1986) 162 CLR 340; 68 ALR 161 .… 7.9, 7.38, 13.10, 13.11, 13.21, 13.22, 13.23, 13.32, 13.33, 13.45, 22.30, 23.19 Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 .… 21.13, 21.25, 25.29, 25.31 — v — (2003) 198 ALR 560 .… 25.31 Sanderson v Marsden and Jones (1922) 10 Ll L Rep 467 .… 4.20 Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 .… 18.8, 19.4 Sandstone DMC Pty Ltd v Trajkovski [2006] NSWCA 205 .… 26.43 Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 .… 6.53 Sanrod Pty Ltd v Dainford Ltd (1984) 54 ALR 179 .… 22.42, 23.39 Sarch v Blackburn (1830) 4 C & P 297; 172 ER 712 .… 15.14 Sargeant, Re; Re Farrelly (1973) 6 SASR 321 .… 12.16 Sarian v Elton [2011] NSWCA 123 .… 8.36 Sasin v Commonwealth (1984) 52 ALR 299 .… 7.32, 7.34 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 .… 17.3 Savige v News Ltd [1932] SASR 240 .… 19.5 Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147 .… 25.16, 25.18, 25.19, 25.20 Savill Bros Ltd v Langman (1898) 79 LT 44 .… 25.34 Sawicki v O’Sullivan [1960] Qd R 547 .… 9.11 Sayers v Perrin [1966] Qd R 74 .… 9.2 — v — (No 3) [1966] Qd R 89 .… 9.5, 9.11 SB v New South Wales (2004) 13 VR 527 .… 28.31 Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] 3 All ER 220 .… 21.60 Scanlon v American Cigarette Co (Overseas) Pty Ltd [1987] VR 281 .… 7.7 — v —(No 3) [1987] VR 289 .… 10.24, 10.30 — v Director-General, Department of the Arts, Sport and Recreation (2006) 66 NSWLR 292 .… 25.1 Scarcella v Lettice (2000) 51 NSWLR 302 .… 28.17 Schapiro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 .… 16.6 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 .… 8.41, 8.49 Schemmell v Pomeroy (1989) 50 SASR 450 .… 4.22, 4.47 Schiller v Mulgrave Shire Council (1972) 129 CLR 116 .… 7.39 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 .… 21.8, 21.12, 21.13, 23.3 Schleter v Brazakka Pty Ltd (2002) 12 NTLR 76 .… 5.9 Schmitz v Pilpel (1988) Aust Torts Reports 80–178 .… 7.38 Schneidas v Corrective Services Commission (SC(NSW), 8 April 1983, unreported) .… 6.22 Schneider v Eisovitch [1960] 2 QB 430; 1 All ER 169 .… 7.48

Scholz v Standish [1961] SASR 123 .… 8.19 Schultz v Ocean Accident & Guarantee Corp Ltd (1923) 23 SR (NSW) 153 .… 25.39, 25.40 Schumann v Abbott [1961] SASR 149 .… 21.52, 29.25 Schwarzschild v Harrods Ltd [2008] EWHC 521 .… 4.2 Schweizer v Central Hospital (1974) 6 OR (2d) 606 .… 3.7 SCM (UK) Ltd v W J Whittal & Son Ltd [1970] 2 All ER 417 .… 14.17 — v — [1971] 1 QB 337; [1970] 3 All ER 245 .… 13.56, 14.17 Scott v Bowyer [1998] 1 VR 207 .… 20.11, 20.20, 24.3 — v Davis (2000) 204 CLR 333; 175 ALR 217 .… 3.11, 26.19 — v Department of Social Security (2000) 65 ALD 79 .… 16.24 — v Edington (1888) 14 VLR 41 .… 15.14 — v English [1947] VLR 445 .… 28.46 — v London and St Katherine Docks Co (1865) 3 H & C 596 .… 8.41, 8.44 — v Matthew Brown & Co Ltd (1884) 51 LT 746 .… 6.18 — v Sampson (1882) 8 QBD 491 .… 19.77 — v Shepherd (1773) 2 Wm Bl 892 .… 3.4, 3.12, 4.45, 9.14 — v Stansfield (1868) LR 3 Ex 220 .… 19.33 — v Windsor Holdings Pty Ltd (1986) ATPR 40–737 .… 22.29 Scott Group Ltd v McFarlane [1978] 1 NZLR 553 .… 1.19, 7.8, 13.10, 13.17, 13.21, 13.23, 13.27, 13.41, 23.23 Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720 .… 27.31 Seafolly Pty Ltd v Madden [2012] FCA 1346 .… 22.30, 22.50 Seale v Perry [1982] VR 193 .… 1.19 Seaman v Cuppledick (1615) Owen 150 .… 6.17 — v Netherclift (1876) 2 CPD 53 .… 19.33 Searle v Wallbank [1947] AC 341 .… 7.62 Searles v Scarlett [1892] 2 QB 56 .… 19.42 Secretary of State for the Home Department v Robb [1995] Fam 127; [1995] 1 All ER 677 .… 6.22 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218; 106 ALR 385 .… 2.17, 3.7, 6.5, 6.9 Securitibank Ltd, Re [1986] 2 NZLR 280 .… 29.33 Sedleigh-Denfield v O’Callaghan [1940] AC 880; 3 All ER 349 .… 14.2, 14.17, 14.19, 14.35, 14.39, 14.40, 14.58 Seear v Lawson (1880) 15 Ch D 426 .… 25.42 Seiwa Australia Pty Ltd v Beard (2009) 75 NSWLR 74 .… 8.36 Select 2000 Ltd v ENZA Ltd [2002] 2 NZLR 367 .… 16.23, 16.24

Seligman v Docker [1949] Ch 53; [1948] 2 All ER 887 .… 14.30 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16 .… 13.41 Sellick v De Young [1955] SASR 191 .… 11.54 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 .… 9.2, 9.4 Seltsam v McNeill [2006] NSWCA 158 .… 8.13 Semenov v Pirvu [2011] VSC 605 .… 4.39 Sempra Metals Ltd v Inland Revenue Commissioners [2008] 1 AC 561; [2007] 4 All ER 657 .… 27.27 Senanayake v Cheng [1966] AC 63; [1965] 3 All ER 296 .… 22.35 Senior v Ward (1859) 1 El & El 385; 120 ER 954 .… 11.39 Sergi v Australian Broadcasting Commn [1983] 2 NSWLR 669 .… 18.10, 19.4 Serisier Investments Pty Ltd v English [1989] 1 Qd R 678 .… 27.29 Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust [2012] 2 WLR 1071 .… 3.30 Seton, Laing, & Co v Lafone (1887) 19 QBD 68 .… 4.31 Settree v Roberts [1982] 1 NSWLR 649 .… 8.33, 11.16 Sewai Jaipur v Arjun Lal [1937] 4 All ER 5 .… 5.7 Sewell v National Telephone Co Ltd [1907] 1 KB 557 .… 3.34 Seymour v Butterworth (1862) 3 F & F 372; 176 ER 166 .… 19.14 — v Seymour (1996) 40 NSWLR 358 .… 28.33 Shaddock (L) & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385 .… 1.19, 23.19 Shaddock (L) & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; 36 ALR 385 .… 13.21 Shaddock v Parramatta (1981) 150 CLR 225; 36 ALR 385 .… 13.22, 13.23, 13.25, 13.32 Shah v Standard Chartered Bank [1999] QB 241; [1998] 4 All ER 155 .… 19.5 Shakoor v Situ [2000] 4 All ER 181 .… 8.24 Shapiro v La Morta (1923) 130 LT 622 .… 3.22 Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 .… 11.2, 11.6, 11.8, 11.11, 11.13, 11.14, 11.28, 11.29, 11.30 Sharp v Biggs (1932) 48 CLR 81 .… 25.9, 25.10, 25.11, 25.15 — v Ramage (1995) 12 WAR 325 .… 22.26 Sharrod v London and North Western Ry Co (1849) 4 Exch 580; 154 ER 1345 .… 2.20, 3.11 Shattock v Devlin [1990] 2 NZLR 88 .… 5.5, 6.22, 27.7 Shaw v Commonwealth of Australia (1992) 110 FLR 379 .… 7.21 — v Donaldson (1988) 78 ACTR 1 .… 6.39, 6.44 — v Hackshaw [1983] 2 VR 65 .… 2.22, 6.18

Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 .… 6.20, 6.22, 29.6 Shears v Mendeloff (1914) 30 TLR 342 .… 21.7 Sheehan, Re (1990) 13 Fam LR 736 .… 25.37 —, Re (1991) FLC 92–221 .… 25.37 Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] AC 102; [1995] 2 All ER 558 .… 28.33 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 .… 14.22, 14.51, 27.51 Shell UK Ltd v Total UK Ltd [2011] QB 86; [2010] 3 All ER 793 .… 13.60 Shelley v Shelley [1971] SASR 430 .… 10.13 Shelmerdine v Mewett (1993) 170 LSJS 228 .… 19.53 Shepheard v Whitaker (1875) LR 10 CP 502 .… 18.7 Shepherd v SJ Banks and Son Pty Ltd (1987) 45 SASR 437 .… 8.8, 29.26 Sheppard v Glossop Corporation [1921] 3 KB 132 .… 7.35 Sheridan v New Quay Co (1858) 4 CB (NS) 618 .… 4.24, 4.28 Sherman and Apps, Re (1980) 72 Cr App R 266 .… 6.45 Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 .… 16.31 Sherras v Van der Maat [1989] 1 Qd R 114 .… 29.38 Sherrin v Haggerty [1953] OWN 962 .… 6.22, 6.23 Shipard v Motor Accident Commn (1997) 70 SASR 240 .… 7.51 Shire of Corrigin v Hunter Holdings Pty Ltd [2007] WASCA 31 .… 9.15 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 .… 8.10, 8.13, 9.8 Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81–104 .… 8.38, 9.2 Shorland v Govett (1826) 5 B & C 485 .… 4.53 Short v City Bank Ltd (1912) 15 CLR 148 .… 4.5 — v The City Bank of Sydney Ltd (1912) 15 CLR 148 .… 21.6 — v Wenham [2002] SASC 369 .… 10.8 Shrewsbury’s (Countess) Case (1600) 5 Co Rep 13b .… 5.11 Sianis v Barlow (1987) 48 SASR 471 .… 9.10 Sibley v Kais (1967) 118 CLR 424 .… 8.32, 10.10, 16.12 — v Milutinovic (1990) Aust Torts Reports 81–013 .… 3.2, 6.6 Sibthorpe v Southwark London Borough Council [2011] 2 All ER 240 .… 25.33 Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1970] 2 NSWR 47 . … 21.25 — v — [1971] 1 NSWLR 760 .… 21.8, 21.25, 21.31, 21.36 Sidameneo (No 456) Pty Ltd v Alexander [2011] NSWCA 418 .… 21.10 Sidaway v Governors of Bethlem Royal Hospital and the Maudsley Hospital [1984] QB 493; 1 All ER

1018 .… 6.8 Sidaway v Governors of Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871; 1 All ER 643 .… 6.8, 7.22, 8.2, 8.34 Sideris v Censori [1983] WAR 17; Re DA (1995) 128 FLR 143 .… 12.15 Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229; 2 All ER 857 .… 9.3 Sievwright v Ward [1935] NZLR 43 .… 25.33, 25.37, 25.40 Silservice Pty Ltd v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 127 .… 14.56 Sim v Stretch [1936] 2 All ER 1237 .… 18.6 Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758; 1 All ER 791 .… 13.14, 13.76 Simmons v British Steel Plc (Scotland) [2004] UKHL 20 .… 9.11 — v Lillystone (1853) 8 Exch 431 .… 4.21 Simms Jones Ltd v Protochem Trading NZ Ltd [1993] 3 NZLR 369 .… 13.13, 27.46 Simms v Leigh Rugby Football Club Ltd [1969] 2 All ER 923 .… 10.26 Simms, Re; Ex parte Trustee [1934] Ch 1 .… 4.40 Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 .… 27.26, 27.40 Simpson v Attorney-General (Baigent’s case) [1994] 1 NZLR 667 .… 6.47, 6.48 — v Bannerman (1932) 47 CLR 378 .… 15.22, 15.24, 15.25 — v Blanch (1998) Aust Torts Reports 81–458 .… 26.31 — v Savage (1856) 1 CB (NS) 347; 140 ER 143 .… 14.33 — v Thomson (1877) 3 App Cas 279 .… 4.66 — v Weber (1925) 133 LT 46 .… 5.3 Simpson & Co v Thomson (1877) 3 App Cas 279 .… 13.59 Sims v Wran [1984] 1 NSWLR 317 .… 18.20, 19.17 Sinclair v Haynes [2000] NSWSC 642 .… 4.38 — v William Arnott Pty Ltd (1963) 64 SR (NSW) 88 .… 29.36, 29.37 Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153; 4 All ER 335 .… 4.17 Singh v Ali [1960] AC 167; 1 All ER 269 .… 6.58 — v Smithenbecker (1923) 23 SR (NSW) 207 .… 5.6 Singleton v Ffrench (1986) 5 NSWLR 425 .… 19.3 Sirros v Moore [1975] QB 118; [1974] 3 All ER 776 .… 6.51, 6.52, 6.57, 19.33 Sirway Asia Pacific Pty Ltd v Commonwealth [2002] FCA 1152 .… 22.6 Sivasubramaniam v Yarrall [2005] 3 NZLR 268 .… 9.5 Siveyer v Allison [1935] 2 KB 403 .… 6.59 SJ Weir Ltd v Bijok [2011] SASCFC 165 .… 14.18

Skalkos v Assaf (2002) Aust Torts Reports 81–644 .… 19.55 Skea v NRMA Insurance Ltd (2005) 43 MVR 495 .… 7.47 Skelton v Collins (1966) 115 CLR 94 .… 11.2, 11.11, 11.28, 11.29, 11.30 Skinner v Commr for Railways (1937) 37 SR (NSW) 261 .… 29.2 Skinner v London, Brighton & South Coast Ry Co (1850) 5 Ex 787; 155 ER 345 .… 8.43 Skyways Pty Ltd v Commonwealth (1984) 57 ALR 657 .… 7.7 Slack v Glenie [2000] EWCA Civ 145 .… 10.26 Slaveski v Victoria [2010] VSC 441 .… 3.19, 3.25, 6.49 Slim v Croucher (1860) 1 De G F & J 518; 45 ER 462 .… 23.15 — v Daily Telegraph Ltd [1968] 2 QB 157; 1 All ER 497 .… 19.14 Slipper v British Broadcasting Corp [1991] 1 QB 283; 1 All ER 165 .… 18.20 Sloan v Kirby (1979) 20 SASR 263 .… 10.12, 24.4 Smaill v Buller District Council [1998] 1 NZLR 190 .… 16.14, 16.23 Smedley v Smedley (1984) Tas R 49 .… 10.7 Smith v Auckland Hospital Board [1965] NZLR 191 .… 9.2, 9.5, 9.6 — v Baker & Sons [1891] AC 325 .… 10.25 — v Central Asbestos Co Ltd [1973] AC 518; [1972] 2 All ER 1135 .… 28.27 — v Chadwick (1882) 20 Ch D 27 .… 23.15 — v Coleman (1996) 5 Tas R 469 .… 29.23 — v Colles (1871) 2 VLR 195 .… 6.48 — v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552 .… 25.16 — v Cotton (1926) 27 SR (NSW) 41 .… 25.6 — v East Elloe Rural District Council [1956] AC 736; 1 All ER 855 .… 25.32 — v Emerson (1986) Aust Torts Reports 80–022 .… 6.6 — v Enright (1893) 63 LJQB 220 .… 6.29 — v Eric s Bush [1990] 1 AC 831; [1989] 2 All ER 514 .… 10.24, 13.25, 23.23 — v Great Eastern Rly Co (1866) LR 2 CP 4 .… 15.17 — v Harris [1996] 2 VR 335 .… 19.41, 19.42 — v Jenkins (1970) 119 CLR 397 .… 6.58, 6.59 — v John Fairfax & Sons Ltd (1987) 81 ACTR 1 .… 19.59, 19.80 — v — (Fed Ct, FC, 18 January 1988, unreported) .… 19.59, 19.80 — v Leech Brain & Co Ltd [1962] 2 QB 405; [1961] 3 All ER 1159 .… 9.11, 9.18 — v Leurs (1945) 70 CLR 256 .… 7.23, 7.28, 24.14 — v Littlewoods Organisation Ltd [1987] AC 241; 1 All ER 710 .… 14.40 — v London & South Western Ry Co (1870) LR 6 CP 14 .… 7.15, 9.7

— v Lloyds TSB Bank plc [2001] 1 All ER 424 .… 4.16 — v Mackrill [1978] Qd R 403 .… 11.55 — v Mclntyre [1958] Tas SR 36 .… 10.17 — v O’Byrne; Ex parte O’Byrne (1894) 5 QLJR 126 .… 6.32 — v Police (1996) 14 CRNZ 480 .… 5.5 — v Scott (1847) 2 Car & Kir 580; 175 ER 241 .… 19.77 — v — [1973] Ch 314; [1972] 3 All ER 645 .… 14.37 — v Stages [1989] AC 928 .… 26.46 — v State Bank of NSW Ltd (2001) 188 ALR 729 .… 22.26 — v Stone (1647) Sty 65; 82 ER 533 .… 3.6, 5.3, 5.10 — v Yarnold [1969] 2 NSWR 410 .… 29.13 Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254; [1996] 4 All ER 769 .… 23.28, 27.15 Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 .… 19.17 Smithies v National Association of Operative Plasterers [1909] 1 KB 310 .… 21.9 Smoker v London Fire Authority [1991] 2 AC 502; 2 All ER 449 .… 11.22 Sneddon v New South Wales [2012] NSWCA 351 .… 26.57 Snoid v Handley (1981) 38 ALR 383 .… 22.20, 22.24 Snorkel Elevating Work Platform Pty Ltd v Borren Metal Forming Ltd [2010] ACTCA 23 .… 9.2 Snuffer v London Express Newspaper Ltd [1944] AC 116; 1 All ER 495 .… 18.16 Soane v Knight (1827) Mood & M 74; 173 ER 1086 .… 19.15 Soare v Ashley [1955] VLR 438 .… 25.16 Soblusky v Egan (1960) 103 CLR 215 .… 26.16, 26.17, 26.18 Sochacki v Sas [1947] 1 All ER 344 .… 8.43 Society of Lloyd’s v Henderson [2008] 1 WLR 2255 .… 25.30 Software Integrators Pty Ltd v Roadrunner Couriers Pty Ltd (1997) 69 SASR 288 .… 23.39 Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; 75 ALR 513 .… 28.23 Solloway v Hampshire County Council (1981) 76 LGR 449 .… 14.41 Solloway v McLaughlin [1938] AC 247; [1937] 4 All ER 328 .… 4.39, 4.41 Sommerhalder v Burjan [1962] SASR 271 .… 5.17 Sons & Co v Gulliver [1914] 1 Ch 631 .… 14.54, 14.55, 14.56 Sony Music Productions Pty Ltd v Tansing (1993) 27 IPR 640 .… 22.25 Sorrell v Smith [1925] AC 700 .… 21.5, 21.51, 21.60 Sorrenson v McNamara [2004] 1 Qd R 82 .… 19.54 Soultanov v The Age Co Ltd (2009) 23 VR 182 .… 19.11

Sousaari v Steinhardt (1989) Aust Torts Reports 80–268 .… 8.1 South Australia v Ellis [2008] WASCA 200 .… 10.9 South Australia v Johnson (1982) 42 ALR 161 .… 13.40, 23.29, 28.23 — v Kubicki (1987) 46 SASR 282 .… 26.57 — v Lampard-Trevorrow (2010) 106 SASR 331 .… 3.27, 3.33, 25.30, 25.31, 28.23 — v McDonald (2009) 104 SASR 344 .… 12.11 — v Wilmot (1993) 62 SASR 562 .… 7.39 South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215 .… 8.7, 8.12 South Australian Co v The Corporation of the City of Port Adelaide [1914] SALR 16 .… 5.20 South Australian Railways Commr v Riggs (1951) 84 CLR 586 .… 7.34 South Hetton Coal Co v North-Eastern News Association Ltd [1894] 1 QB 133 .… 18.13 South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301; 157 ALR 443 .… 12.42 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd [1992] 2 NZLR 282 .… 7.14, 13.14, 13.27 South Staffordshire Water Co v Sharman [1896] 2 QB 44 .… 4.12 South Wales Miners Federation v Glamorgan Coal Co [1905] AC 239 .… 21.6, 21.18 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 .… 28.25 Southan v Grounds (1916) 16 SR (NSW) 274 .… 21.51 Southern Cross Coaches Ltd, Re (1932) 49 WN (NSW) 230 .… 29.20 Southern Portland Cement Ltd v Cooper [1974] AC 623 .… 7.38 Southern Properties (WA) Pty Ltd v Department of Conservation & Land Management [2012] WASCA 79 .… 14.46 — v Executive Director of the Dept of Conservation and Land Management [2012] WASCA 79 .… 7.36 Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 .… 11.21 Southgate v Commonwealth (1987) Aust Torts Reports 80–089 .… 5.9 Southport Corporation v Esso Petroleum Co Ltd [1953] 2 All ER 1204 .… 14.36, 14.43 — v — [1954] 2 QB 182; 2 All ER 561 .… 5.2, 14.58 — v — [1956] AC 218; [1955] 3 All ER 864 .… 5.2, 14.55 Southwark London Borough Council v Mills [2001] 1 AC 1; [1999] 4 All ER 449 .… 14.45 — v Williams [1971] Ch 734; 2 All ER 175 .… 6.21 Southwell v Tomomotu (1992) 109 FLR 12 .… 8.41 Soutter v P & O Resorts Pty Ltd [1999] 2 Qd R 106 .… 16.23, 16.25 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 .… 6.58, 16.19, 16.32 SP Hywood Pty Ltd v Standard Chartered Bank Ltd [1992] SASC 3764 .… 4.24 Spackman v Foster (1883) 11 QBD 99 .… 28.9

Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39 .… 11.8, 29.37 Sparke v Osborne (1908) 7 CLR 51 .… 14.27, 14.41 Sparks v Van Den Ham [2003] WASCA 143 .… 29.26 Sparrow v Fairey Aviation Co Ltd [1964] AC 1019; [1962] 3 All ER 706 .… 16.27 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; [1972] 3 All ER 557 .… 1.19, 13.17, 13.56, 27.6 Spautz v Butterworth (1996) 41 NSWLR 1 .… 3.37 Spautz v Gibbs (1990) 21 NSWLR 230 .… 25.5, 25.22 Specialty Equipment Co Inc v R E Phillips Nominees Pty Ltd (2007) 99 SASR 535 .… 22.28 Specsavers Pty Ltd v Optical Superstore Pty Ltd (2010) 276 ALR 569 .… 22.45 Speed Seal Products Ltd v Paddington [1986] 1 All ER 91 .… 25.23 Speirs v Caledonian Collieries Ltd [1957] SR (NSW) 483 .… 9.17 — v Gorman [1966] NZLR 897 .… 10.11 Spence v Dimasi (1987) 6 MVR 231 .… 10.12 — v Percy [1992] 2 Qd R 299 .… 7.47 Spencer v Associated Milk Services Pty Ltd [1968] Qd R 393 .… 7.48 — v Franses Ltd [2011] EWHC 1269 .… 4.31 — v Silva [1942] SASR 213 .… 14.52, 27.51 — v Wincanton Holdings Ltd [2009] EWCA Civ 1404 .… 9.15 Spicer v Coppins (1991) 56 SASR 175 .… 10.12 — v Smee [1946] 1 All ER 489 .… 14.17, 14.38, 14.42, 14.48 Spiers v Caledonian Collieries Ltd (1956) 57 SR (NSW) 483 .… 29.29 — v — (1957) 97 CLR 202 .… 29.29 Spill v Maule (1869) LR 4 Ex 232 .… 19.48 Spotless Services Australia Ltd v Herbath (2009) 26 VR 373 .… 10.15 Spring v Guardian Assurance plc [1995] 2 AC 296; [1994] 3 All ER 129 .… 7.11, 13.23, 17.3 Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports 81–921 .… 26.43 Square v Model Farm Dairies (Bournemouth) Ltd [1939] 2 KB 365; 1 All ER 259 .… 16.20, 16.24 SS Heranger (Owners) v SS Diamond (Owners) [1939] AC 94 .… 8.12, 10.9 SSC & B: Lintas New Zealand Ltd v Murphy [1986] 2 NZLR 436 .… 21.12, 21.45 St Anne’s Well Brewery Co v Roberts (1928) 140 LT 1 .… 14.40, 14.42 St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666 .… 29.42 St George Club Ltd v Hines (1962) 35 ALJR 106 .… 8.38 St George’s Healthcare NHS Trust v S [1999] Fam 26; [1998] 3 All ER 673 .… 6.8, 6.10 St Helen’s Smelting Co v Tipping (1865) 11 HLC 642; 11 ER 1483 .… 14.8, 14.9

St Pierre v Ontario (1987) 39 DLR (4th) 10 .… 14.24 Stack v Coast Securities No 9 Pty Ltd (1983) 46 ALR 451 .… 22.33 Staines v Commonwealth (1991) Aust Torts Reports 81–106 .… 8.39 Staley v Suffolk CC and Dean Mason (26 November 1985, unreported) .… 8.16 Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959; 1 All ER 173 .… 10.18, 22.36, 23.32, 23.35 Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447 .… 4.9, 4.14, 4.35, 4.48 Standfield v Uhr [1964] Qd R 66 .… 10.30 Stanley v Powell [1891] 1 QB 86 .… 2.2, 2.4 Stansibie v Troman [1948] 2 KB 48; 1 All ER 599 .… 9.16 Stanton v Callaghan [2000] QB 75; [1998] 4 All ER 961 .… 25.1 — v Collinson [2010] EWCA Civ 81 .… 10.7 Stapeley v Annetts [1969] 3 All ER 1541 .… 25.7 Stapley v Gypsum Mines Ltd [1953] AC 633; 2 All ER 478 .… 9.6, 10.6, 10.17 Star Energy Weald Basin Ltd v Bocardo SA [2011] AC 380; [2010] 3 All ER 975 .… 5.8 Starks v RSM Security Pty Ltd (2004) Aust Torts Reports 81–763 .… 26.43 State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 .… 18.18 — v Yee (1994) 33 NSWLR 618 .… 13.38, 13.40, 27.27 State Electricity Commn v Fooks [1994] 1 VR 259 .… 28.34 State Government Insurance Commission v J M Insurance Pty Ltd (1984) ATPR 40–465 .… 22.15 — v Oakley (1990) Aust Torts Reports 81–003 .… 9.11 — v Trigwell (1979) 142 CLR 617 .… 7.62 State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539; 49 ALR 247 .… 11.43 — v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228 .… 26.9 State of NSW v Gemma Fahry (2006) Aust Torts Reports 81–865 .… 9.2 — v Godfrey & Godfrey [2004] NSWCA 113 .… 7.30 — v Napier [2002] NSWCA 402 .… 7.24 — v Tyszyk [2008] NSWCA 107 .… 6.37 State of Victoria v Bryar [1970] ALR 809 .… 9.2 — v Horvath [2002] VSCA 177 .… 9.13 — v McIver (2005) 11 VR 458 .… 3.14 — v Subramanian [2008] VSC 9 .… 7.21 State Rail Authority (NSW) v Hammond (1988) 15 NSWLR 395 .… 28.32 — v Sharp [1981] 1 NSWLR 240 .… 24.4 — v Wiegold (1991) 25 NSWLR 500 .… 9.15, 9.22

State Rail Authority of NSW v Barnes [2001] NSWCA 133 .… 10.9 — v Chu [2008] NSWCA 14 .… 9.13 Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627; 1 All ER 403 .… 16.37, 26.39 Stearn v Prentice Brothers Ltd [1919] 1 KB 394 .… 14.30 Steel v Glasgow Iron and Steel Co Ltd 1944 SC 237 .… 7.25 — v United Kingdom [1999] 28 EHRR 603 .… 6.37 Steel Structures Ltd v Rangitikei County [1974] 2 NZLR 306 .… 26.9 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 .… 18.14 Steiner v Magic Carpet Tours Pty Ltd (1984) ATPR 40–490 .… 22.50 Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81–537 .… 18.7 Stephens v Anglian Water Authority [1987] 3 All ER 379 .… 14.24 — v Giovenco [2011] NSWCA 53 .… 8.33 — v Myers (1830) 4 C & P 349 .… 3.16 — v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80 .… 19.62, 19.63 Stephenson v Ku-ring-gai MC (1953) 19 LGR (NSW) 137 .… 14.40 — v Waite Tileman Ltd [1973] 1 NZLR 152 .… 9.8, 9.11 Stereff v Rycen [2010] QDC 117 .… 5.23 Stergiou v Stergiou (1987) 4 MVR 435 .… 7.42 Sterman v EW and WJ Moore Ltd [1970] 1 QB 596; 1 All ER 581 .… 2.7 Stern v Piper [1997] QB 123; [1996] 3 All ER 385 .… 19.5 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 .… 7.3, 26.4, 26.8, 26.32 — v Keogh (1946) 72 CLR 1 .… 25.34, 25.39 Stevenson v Basham [1922] NZLR 225 .… 3.21 — v Rodbourne [1998] EWCA Civ 1689 .… 10.16 Stevenson, Jordan and Harrison Ltd v Macdonald and Evans [1952] 1 TLR 101 .… 26.3, 26.8 Stewart v Andri (1994) 19 MVR 1 .… 11.29 — v Biggs [1928] NZLR 673 .… 19.53 — v Enfield MC (1915) 15 SR (NSW) 204 .… 14.39 — v Ronalds (2009) 76 NSWLR 99 .… 6.53, 17.3 — v West African Terminals Ltd [1964] 2 Lloyd’s Rep 371 .… 9.8 Stimac v Nicol [1942] VLR 66 .… 25.6 Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 .… 2.24, 3.9, 28.4, 28.14 Stoakes v Brydges [1958] QWN 5 .… 14.23, 14.43 Stocznia Gdanska SA v Latvian Shipping Co [2002] 2 Lloyd’s Rep 436 .… 21.5, 21.13

— v — (No 2) [1999] 3 All ER 822 .… 25.41 Stokes v Carlson (1951) 240 SW 2d 132 .… 3.6 Stollmeyer v Petroleum Development Co Ltd [1918] AC 498 .… 14.52, 27.51 Stone v Angus [1994] 2 NZLR 202 .… 25.42 Stone & Rolls Ltd (in Liq) v Moore Stephens (a firm) [2009] 1 AC 1391; 4 All ER 431 .… 6.59 Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173 .… 2.20, 5.8, 5.10, 14.38, 16.13, 16.18, 26.32, 26.35 Stoomvaart Maatschappy Nederland v Peninsular and Oriental Steam Navigation Company (1880) 5 App Cas 876 .… 8.19 Storey v Ashton (1869) LR 4 QB 476 .… 26.48 — v Robinson (1795) 6 Term Rep 138 .… 6.28 Stork v Germany (2005) 43 EHRR 96 .… 3.30 Storm v Geeves [1965] Tas SR 252 .… 7.48, 7.55 Stormer v Ingram (1978) 21 SASR 93 .… 15.12 Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651; 3 All ER 534 .… 29.33 Stovin v Wise [1996] AC 923; 3 All ER 801 .… 7.17, 7.33, 7.35, 7.36 Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246; 1 All ER 796 . … 4.40, 4.64, 5.17 Stratford v Phillips Shayle-George (2001) 21 FRNZ 307 .… 28.16 Stratford Borough v J H Ashman (NP) Ltd [1960] NZLR 503 .… 23.35 Street v Blay (1831) 2 B & Ad 456; 109 ER 1212 .… 23.15 — v Mountford [1985] AC 809; 2 All ER 289 .… 5.11, 5.13 Strempel v Wood [2005] WASCA 163 .… 8.35, 9.4 Stroms Bruks AB v Hutchison [1905] AC 515 .… 27.5 Strong v Woolworths Ltd (2012) 285 ALR 420 .… 9.2, 9.3, 9.6 Stroud v Bradbury [1952] 2 All ER 76 .… 6.18 Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161 .… 22.15, 22.18, 22.24 Stuart v Bell [1891] 2 QB 341 .… 19.45, 19.47 — v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 .… 7.24, 7.25, 7.36 — v Wilkins (1778) 1 Doug 19 .… 23.14 Stubbings v Webb [1993] AC 498; 1 All ER 322 .… 2.8, 28.14 Sturch v Willmott [1997] 2 Qd R 310 .… 11.19, 24.5 Sturdy v R (1974) 47 DLR (3d) 71 .… 15.17 Sturges v Bridgman (1879) 11 Ch D 852 .… 14.15, 14.31, 14.44, 14.45 Sullivan v Gordon (1999) 47 NSWLR 319 .… 11.19, 24.5

— v Micallef (1994) Aust Torts Reports 81–308 .… 11.28, 11.30 — v Moody (2001) 207 CLR 562; 183 ALR 404 .… 7.10, 7.12, 9.6, 13.23, 17.3, 27.45 Summers (John) & Son Ltd v Frost [1955] AC 740; 1 All ER 870 .… 16.30 Sumner and Commonwealth v Quince (1944) 68 CLR 227 .… 20.12 Sun Earth Homes Pty Ltd v Australian Broadcasting Corp (1990) 98 ALR 101 .… 22.5 — v — (1993) 45 FCR 265 .… 17.15, 22.5 Suncorp Insurance & Finance Ltd v Blakeney (1993) 18 MVR 361 .… 10.28, 10.30 Suncorp Metway Insurance Ltd v Norris [2012] QCA 101 .… 28.27 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 .… 10.10 Suosaari v Steinhardt [1989] 2 Qd R 477 .… 29.26 Surge Licensing Inc v Pearson (1991) 21 IPR 228 .… 22.21, 22.46 Sutcliffe v Thakrah [1974] AC 727; 1 All ER 859 .… 6.51 Sutherland Shire Council v Becker (2006) 150 LGERA 184 .… 14.2 — v Heyman [1982] 2 NSWLR 618 .… 7.34, 7.35 — v —(1985) 157 CLR 424; 60 ALR 1 .… 7.8, 7.9, 7.11, 7.17, 7.18, 7.19, 7.28, 7.31, 7.32, 7.34, 7.35, 7.36, 9.14, 13.15, 13.75, 16.17, 28.15 Sutherland v Stopes [1925] AC 47 .… 19.6 Sutton v A J Thompson Pty Ltd (1987) 73 ALR 233 .… 22.31 Suttons Motors Pty Ltd v Campbell (1956) 56 SR (NSW) 304 .… 27.47 Suvaal v Cessnock CC (2003) 200 ALR 1 .… 9.2 Svingos v Deacon Avenue Cartage & Storage Pty Ltd (1971) 2 SASR 126 .… 5.16, 27.15 Swadling v Cooper [1931] AC 1 .… 10.6, 10.13 Swaffer v Mulcahy [1934] 1 KB 608 .… 6.29 Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 .… 7.39, 8.1, 8.4, 8.5, 8.10, 8.31, 8.36, 8.37 8.38, 8.39 Swan v Salisbury Construction Co Ltd [1966] 2 All ER 138 .… 8.42 — v South Australia (1994) 62 SASR 532 .… 7.30 — v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 .… 7.42, 11.33, 11.47 Swannell v Farmer [1999] 1 VR 299 .… 12.26 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46 .… 26.2, 26.5, 26.14 Swenson v Drayton Shire Council [1932] St R Qd 98 .… 6.28 SWF Hoists & Industrial Equipment Pty Ltd v State Government Insurance Commn (1990) ATPR 41– 045 .… 22.51 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 .… 23.2 Swinney v Chief Constable of Northumbria Police Force [1997] QB 465 [1996] 3 All ER 449 .… 7.30 Swinton v The China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553 .… 8.5, 8.6, 8.22

Switzerland Australia Health Fund Pty Ltd v Shaw (1988) 81 ALR 111 .… 17.15, 19.48, 19.51 Swordheath Properties Ltd v Tabet [1979] 1 All ER 240 .… 5.17 Sycamore v Ley [1932] All ER Rep 97 .… 15.14 Syd Matthews & Co Pty Ltd v Cavanagh [2005] WASCA 178 .… 10.10 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; 149 ALR 134 .… 22.5 Sydlow Pty Ltd v T G Kotselas Pty Ltd (1996) 65 FCR 234; 144 ALR 159 .… 29.32 Sydney City Council v Bosnich [1968] 3 NSWR 725 .… 20.19, 20.20 — v Dell’Oro (1974) 132 CLR 97 .… 7.15, 8.12 — v Furner (1991) 7 NSWCCR 210 .… 9.2 — v West (1965) 114 CLR 481 .… 10.23 Sydney South West Area Health Services v Stamoulis [2009] NSWCA 153 .… 9.4 Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 .… 7.13, 8.13 Syeds v Hay (1791) 4 Term Rep 260 .… 4.27 Sykes v Connolly (1895) 11 WN (NSW) 145 .… 14.37 — v — (1997) 151 ALR 579 .… 17.15, 22.7 — v — (1998) 88 FCR 511; 158 ALR 710 .… 22.7, 22.10 Sylvester v G B Chapman Ltd (1935) 79 SJ 777 .… 7.27, 10.30, 15.18 Symes v Mahon [1922] SASR 447 .… 3.29, 6.36 Symonds v Vass [2009] NSWCA 139 .… 7.57 Symons Nominees Pty Ltd v Roads & Traffic Authority (NSW) (1996) 25 MVR 174 .… 14.46 Szalatnay-Stacho v Fink [1946] 1 All ER 303 .… 19.35

T T v H [1995] 3 NZLR 37 .… 28.9 — v South Australia (1992) 59 SASR 278 .… 12.16 — v T [1988] Fam 52; 1 All ER 613 .… 3.2, 3.5, 3.10, 6.10 T (Adult: Refusal of Treatment), Re [1993] Fam 95; [1992] 4 All ER 649 .… 6.8, 6.10 Ta Ho Ma Pty Ltd Allen (1999) 47 NSWLR 1 .… 13.33 Tabet v Gett (2010) 240 CLR 537; 265 ALR 227 .… 9.2, 9.4, 9.6 — v Mansour [2007] NSWSC 36 .… 9.6 Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651 .… 21.23 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 .… 22.23, 22.24, 23.7 Taff Vale Rly Co v Jenkins [1913] AC 1 .… 11.41 Tai TeWhela v Scandlyn [1952] NZLR 30 .… 5.18 Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 .… 7.8, 7.33, 20.7 — v — [1986] 1 NZLR 22 .… 13.6, 13.21, 13.38, 13.41, 27.32

— v — [1988] AC 473; 1 All ER 163 .… 13.41, 27.32 Takhar v Animal Liberation SA Inc [2000] SASC 400 .… 5.22 TAL Structural Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545 .… 10.10 Talbot v Berkshire County Council [1994] QB 290; [1993] 4 All ER 9 .… 28.44 Talbot & Oliver v Whitcombe (2006) 32 WAR 179 .… 11.54 Talmax Pty Ltd v Telstra Corp Ltd [1997] 2 Qd R 444 .… 22.21 Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 .… 7.3, 7.4, 7.12, 7.13, 7.30, 7.41, 7.42, 7.44, 7.45, 7.47, 7.48, 7.50, 7.52, 8.4 Tampion v Anderson [1973] VR 321 .… 6.51 — v — [1973] VR 715 .… 25.29, 25.31 Tancred v Allgood (1859) 4 H & N 438 .… 4.65 Tanks and Vessels Industries Ltd v Devon Cider Co Ltd [2009] EWCH 1360 .… 4.40, 4.63 Tappenden v Artus [1964] 2 QB 185; [1963] 3 All ER 213 .… 4.27 Targett v Targett (1999) 9 Tas R 234 .… 11.47 Tasmania v Shaw (No 2) (2002) 12 Tas R 1 .… 27.27 Tassone v Metropolitan Water, Sewerage & Drainage Board [1971] 1 NSWLR 207 .… 16.25 Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; 1 All ER 1159 .… 7.31, 14.13, 14.55 Taupo Borough Council v Birnie [1978] 2 NZLR 397 .… 9.8, 13.56 Tavoulareas v Lau [2007] EWCA Civ 474 .… 4.31 Taylor v Auto Trade Supply Ltd [1972] NZLR 102 .… 14.49 — v Beere [1982] 1 NZLR 81 .… 19.82, 27.7, 27.10 — v Chester [1869] LR 4 QB 309 .… 6.58 — v City of Perth (1988) Aust Torts Reports 80–191 .… 14.56 — v Evatt (1943) 43 SR (NSW) 367 .… 24.10 — v Hyde [1918] NZLR 279 .… 23.2 — v Neri (1795) 1 Esp 386; 170 ER 393 .… 20.12 — v Plumer (1815) 3 M & s 562 .… 4.17 — v Rowan (1835) 7 C & P 70 .… 4.49 — v Serious Fraud Office [1992] 2 AC 177; [1998] 4 All ER 801 .… 25.1 Taylor (CR) (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784 .… 14.49 Taylor Bros Ltd v Taylors Group Ltd [1988] 2 NZLR 1 .… 22.19, 22.24, 23.9 TC v New South Wales [2000] NSWSC 292 .… 9.2 TC by his tutor Sabatino v New South Wales [2001] NSWCA 380 .… 9.4 TCN Channel 9 v Antoniadis (1998) 44 NSWLR 682 .… 19.12 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 .… 5.6, 5.16, 27.15

— v Ilvariy Pty Ltd (2008) 71 NSWLR 323 .… 5.19, 17.16, 27.11 — v — (2008) Aust Torts Reports 81–931 .… 5.19 Te Matai Properties Ltd v Hastings District Council [2009] 1 NZLR 460 .… 13.73 Tea Tree Gully City Council v Doyle (1986) 4 MVR 63 .… 10.10 Telecom Directories Ltd v AD Viser (NZ) Ltd (1992) 26 IPR 37 .… 22.15 Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209 .… 4.16 Telegraph Newspaper Ltd v Bedford (1934) 50 CLR 632 .… 17.9, 19.48 Teletax Consultants Ltd v Williams [1989] 1 NZLR 698 .… 19.34 Television New Zealand Ltd v Ah Koy [2002] 2 NZLR 616 .… 19.77 — v Haines [2006] 2 NZLR 433 .… 19.3, 19.9, 19.17 — v Quinn [1996] 3 NZLR 24 .… 19.82 — v Rogers [2008] 2 NZLR 277 .… 1.12 Telmak Teleproducts (Aust) Pty Ltd v Coles Myer Ltd (1989) 89 ALR 48 .… 22.18, 22.23, 22.24, 23.11 Telnikoff v Matusevitch [1992] 2 AC 343; [1991] 4 All ER 817 .… 19.17, 19.25 Telstra Corp Ltd v Optus Communications Ltd (1997) ATPR 41–541 .… 22.15 Temperton v Russell [1893] 1 QB 715 .… 21.5, 21.18 Tempest v Snowden [1952] 1 KB 130; 1 All ER 1 .… 25.10 Templeton v Jones [1984] 1 NZLR 448 .… 19.12 Tenant v Goldwin (1705) 2 Ld Raym 1089; 92 ER 222 .… 15.2 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 .… 22.21 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 .… 13.23 Tertiary Institutes Allied Staff Assoc Inc v Tahana [1998] 1 NZLR 41 .… 19.33 Testbank case 752 F 2d 1019 (The) (1985) .… 13.62 Tetley v Chitty [1986] 1 All ER 663 .… 14.37 Teubner v Humble (1963) 108 CLR 491 .… 11.28, 11.29 Teubner v Humble (1963) 108 CLR 491 .… 8.12, 10.6, 10.17 Tewari v Singh (1908) 24 TLR 884 .… 25.3 Texcrete Pty Ltd v Khavin [2003] NSWCA 337 .… 16.30 TGI Friday’s Australia Pty Ltd v TGI Friday’s Inc (1999) 48 IPR 65 .… 22.18 Thai Trading Co v Taylor [1998] QB 781; 3 All ER 65 .… 25.37 Thake v Maurice [1986] QB 644; 1 All ER 497 .… 7.59 Tharpe v Stallwood (1843) 5 Man & G 760 .… 4.50 Theaker v Richardson [1962] 1 All ER 229 .… 18.18 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1 .… 19.62, 19.63

Thermo King Corp v Provincial Bank of Canada (1981) 130 DLR (3d) 256 .… 21.15 Theyer v Prunell [1918] 2 KB 333 .… 15.8 Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 .… 19.57 348238 Ontario Ltd v The Queen in the Right of Canada (1983) 8 DLR (4th) 676 .… 4.20 Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 .… 19.15 — v Elder Smith Goldsbrough Mort Ltd (1982) 30 SASR 592 .… 7.4, 7.20 — v Gulf Oil Refining Ltd (1979) 123 Sol Jo 787 .… 7.5 — v Kula [2001] WASCA 362 .… 11.19 — v National Union of Mineworkers (South Wales Area) [1986] Ch 20; [1985] 2 All ER 1 .… 3.17 — v Quartermaine (1887) 18 QBD 685 .… 7.4, 10.25 Thomas Borthwick & Sons (A’asia) Ltd v Samco Meats Pty Ltd [1995] 2 VR 474 .… 29.26 Thomas Brown and Sons Ltd v Fazal Deen (1962) 108 CLR 391 .… 4.42, 4.62, 6.58 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1 .… 18.25, 18.26 — v — (1996) 186 CLR 574; 141 ALR 1 .… 29.25, 29.28 — v — (1998) 133 ACTR 1 .… 27.30 — v Australian Consolidated Press Ltd (1968) 89 WN (Pt 1) (NSW) 121 .… 19.41 — v Bankstown Corporation (1953) 87 CLR 619 .… 7.38 — v British Medical Association (New South Wales Branch) [1924] AC 764 .… 21.60 — v Earthy [1951] 2 KB 596; 2 All ER 235 .… 5.6 — v Faraonio (1979) 24 ALR 1 .… 27.31 — v Gibson (1841) 7 M & W 456; 151 ER 845 .… 14.36 — v Henderson & Partners Pty Ltd (1989) 51 SASR 431 .… 23.36, 26.13 — v — (1990) 58 SASR 548 .… 26.13 — v Johnson and Johnson Pty Ltd [1991] 2 VR 449 .… 8.5, 8.35 — v Mandla [1976] 2 NSWLR 307 .… 11.50 — v Mastertouch TV Service Pty Ltd (No 1) (1977) 15 ALR 487 .… 22.32, 22.33 — v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; 1 All ER 881 .… 8.34 — v Sydney Municipal Council (1938) 14 LGR (NSW) 32 .… 14.9, 14.33 — v ‘Truth’ & ‘Sportsman’ Ltd (1932) 34 SR (NSW) 21 .… 19.21 — v Turbott [1962] NZLR 298 .… 19.34 — v Vincent [2005] NSWCA 219 .… 5.5, 5.10 — v Ward [1953] 2 QB 153; 1 All ER 1169 .… 5.11 — v Williams (1915) 32 WN (NSW) 27 .… 26.59 — v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452 .… 7.39, 8.10, 10.9 Thompson (H W) Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667 .… 22.48

Thompson-Schwab v Costaki [1956] 1 All ER 652 .… 14.9, 14.11 Thomsen v Davison [1975] Qd R 93 .… 7.22 Thomson v Cremin [1953] 2 All ER 1185 .… 26.34 — v Scottish Ministers [2011] ScotCS CSOH 90 .… 7.11 Thor v Superior Court (1993) 855 P 2d 375 .… 6.22 Thorley v Lord Kerry (1812) 4 Taunt 355; 128 ER 367 .… 17.7, 18.4 Thorne v Strofeld [1997] 1 Qd R 540 .… 24.5 — v Western Australia [1964] WAR 147 .… 7.30, 26.59 Thorogood v Bryan (1849) 8 CB 115; 137 ER .… 10.14 Thorpe v Brumfitt (1873) 8 Ch App 650 .… 14.47 Thorpe Nominees Pty Ltd v Henderson [1988] 2 Qd R 216 .… 13.38 Three Meade Street Ltd v Rutorua DC [2005] 1 NZLR 504 .… 7.14 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2000] 3 All ER 1 .… 25.27, 25.30, 25.31, 25.32 Thurston v Todd [1966] 1 NSWR 321 .… 11.3 Thynne v Petrie [1975] Qd R 260 .… 27.19, 27.37, 28.10, 28.20 Tickell v Read (1773) Lofft 215 .… 6.17 Tidy v Battman [1934] 1 KB 319 .… 8.12 Tillander v Gosselin (1966) 60 DLR (2d) 18 .… 29.18 Tillett v Ward (1882) 10 QBD 17 .… 15.4 Tilley v Stevenson [1939] 4 All ER 207 .… 8.31 Tilly v Toowoomba City Council (1989) 69 LGRA 399 .… 13.23 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 .… 8.10, 9.2, 10.9 Timmings v Treadgold [1923] NZLR 73 .… 29.21 Timmins v Webb [1964] SASR 250 .… 24.12 Timms v Clift [1998] 2 Qd R 100 .… 18.20 Timothy v Simpson (1835) 1 Cr M & R 757; 149 ER 1285 .… 6.37 Timothy’s Pty Ltd, Re [1981] 2 NSWLR 706 .… 25.41, 27.41 Tingle v J B Hinz & Sons [1970] Qd R 108 .… 10.25, 10.30 Tinkler v Poole (1770) 5 Burr 2657 .… 4.20 Tipler v Fraser [1976] Qd R 272 .… 5.20, 5.21 Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488 .… 13.33 Tippett v Fraser (1999) 74 SASR 522 .… 20.13, 20.18 Tiufino v Warland (2000) 50 NSWLR 104 .… 27.36 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 .… 26.28, 29.26

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61 .… 22.7, 22.31 — v Woodward (1993) 32 NSWLR 559 .… 22.7, 22.10 Tobin v R (1864) 16 CBNS 310; 143 ER 1148 .… 26.57 Todd v Flight (1860) 9 CB (NS) 377; 142 ER 148 .… 14.42 — v Swan Television & Radio Broadcasters Pty Ltd (2001) 25 WAR 284 .… 18.12 Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481 .… 11.2, 11.7, 11.26, 11.43, 27.36 Tolega Pty Ltd v Sandell (2011) 110 SASR 42 .… 19.48 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; 211 ALR 342 .… 10.23, 22.43 Tomlinson v Congleton Borough Council [2004] 1 AC 46; [2003] 3 All ER 1122 .… 7.38 Tonkin Thompson & Associates Pty Ltd v Mayr (1998) 72 SASR 346 .… 22.40 Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 .… 19.38, 19.56 Toohey v Hollier (1955) 92 CLR 618 .… 24.5 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 .… 14.38, 26.21, 26.25 Toropdar v D [2009] EWHC 567 .… 10.11 Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106; 1 All ER 522 .… 21.3, 21.12, 21.24 Tot Toys Ltd v Mitchell [1993] 1 NZLR 325 .… 23.8 Towart v Adler (1989) 52 SASR 373 .… 24.16 Town of Port Hedland v Hodder (No 2) [2012] WASCA 212 .… 10.11 Townsend v Roussety & Co (WA) Pty Ltd (2007) 33 WAR 321 .… 22.48 — v Wathen (1808) 9 East 277 .… 3.23, 4.65 Toyne v Everingham (1993) 91 NTR 1 .… 19.39 Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101 .… 6.24 Trafigura Beheer BV v Mediterranean Shipping Co SA [2007] ICLC 594 .… 4.40 Traian v Ware [1957] VR 200 .… 6.26 Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1; 1 All ER 589 .… 14.34 Transfield Services (Australia) Pty Ltd v Hall (2008) 75 NSWLR 12 .… 26.31 Travel Compensation Fund v Tambree (2005) 224 CLR 627; 222 ALR 263 .… 7.12, 9.6, 9.14, 13.20, 22.50 Travis v Vanderloos (1984) 54 LGRA 268 .… 14.50 Traztand Pty Ltd v Government Insurance Office (NSW) [1984] 2 NSWLR 598 .… 18.18 Tremain v Pike [1969] 3 All ER 1303 .… 9.8 Trend Management Ltd v Borg (1996) 40 NSWLR 500 .… 27.11 Trendtex Trading Corp v Credit Suisse [1982] AC 679; [1981] 3 All ER 520 .… 25.41, 27.41 Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 .… 11.20 Tresize v National Australia Bank Ltd (2005) 220 ALR 706 .… 23.17

Trethowan v Capron [1961] VR 460 .… 15.13, 15.25 Trevett v Lee [1955] 1 All ER 406 .… 14.45, 14.55 Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 .… 26.15 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574 .… 1.2 Triffit v Dare and Bowater Tutt Industries Pty Ltd (No FCA 108/1992 Judgment No A109/1993) .… 4.22 Triggell v Pheeney (1951) 82 CLR 497 .… 19.81 Tripodi v Leonello (1982) 31 SASR 9 .… 11.47, 11.51 Trobridge v Hardy (1955) 94 CLR 147 .… 25.14 Trompp v Liddle (1941) 41 SR (NSW) 108 .… 10.10 Trotman v British Railways Board [1975] ICR 95 .… 8.35 Trotter v Maclean (1879) 13 Ch D 574 .… 5.18 Truss v Brazier [1993] 1 Qd R 691 .… 22.50 Trust Bank Auckland Ltd v ASB Bank Ltd [1989] 3 NZLR 385 .… 22.16, 22.23 Trustees of the Roman Catholic Church for the Diocese of Sydney v Ellis (2007) 70 NSWLR 565 .… 26.54, 29.13 Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; 216 ALR 415 .… 7.29 Truth (NZ) Ltd v Avery [1959] NZLR 274 .… 19.22 — v Holloway [1960] NZLR 69 .… 19.5 — v — [1961] NZLR 22 .… 18.19, 19.5 Tsanaktsidis v Oulianoff (1980) 24 SASR 500 .… 7.42 Tsiadis v Patterson (2001) 4 VR 114 .… 28.25 Tsouvalla v Bini [1966] SASR 157 .… 2.14 TTM v London Borough of Hackney [2011] 1 WLR 2873 .… 3.34 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 .… 8.40 Tuberville v Savage (1669) 1 Mod Rep 3 .… 3.10, 3.19 Tucker v McCann [1948] VLR 222 .… 8.35, 16.12 — v News Media Ownership Ltd [1986] 2 NZLR 716 .… 3.23 — v Westfield Design & Construction Pty Ltd (1993) 46 FCR 20; 123 ALR 278 .… 11.8 Tui Foods Ltd v New Zealand Milk Corp Ltd [1997] 2 NZLR 214 .… 22.18 Tullay v Reed (1823) 1 C & P 6 .… 6.18 Tunbridge Wells Corporation v Baird [1896] AC 434 .… 5.7 Tuohey v Freemasons Hospital [2012] VSCA 80 .… 11.11 Turner v Ambler (1847) 10 QB 252; 116 ER 98 .… 25.14, 25.15 — v Driver [2005] TASSC 85 .… 6.28

— v Mansfield Corporation (1975) 119 Sol Jo 629 .… 8.41, 8.45 — v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 .… 6.16, 19.15 — v NSW Mont de Piete Deposit and Investment Co Ltd (1910) 10 CLR 539 .… 5.19 Turton (R M) & Co Ltd v Kerslake and Partners [2000] 3 NZLR 406 .… 13.14 Tuson v Evans (1840) 12 Ad & El 733; 113 ER 991 .… 19.55 Tusyn v Tasmania (2004) 13 Tas R 51 .… 28.33 — v —(No 3) [2010] TASSC 55 .… 28.13 TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 .… 5.6 — v Fahey [1999] 2 NZLR 129 .… 19.83 TV-am plc v Amalgamated Television Services Pty Ltd (1988) ATPR 40–891 .… 22.24 Twentieth Century Blinds Pty Ltd v Howes [1974] 1 NSWLR 244 .… 15.21 Twentieth Century Fox Film Corp v South Australian Brewing Co Ltd (1996) 66 FCR 451; 34 IPR 225 .… 22.21 Twine v Bean’s Express Ltd [1946] 1 All ER 202 .… 26.38 Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 .… 18.14, 19.59, 22.15 U UBAF Ltd v European American Banking Corp [1984] QB 713; 2 All ER 226 .… 28.17 Ulowski v Miller [1968] SASR 277 .… 28.23 Ultramares Corp v Touche, Niven & Co 174 NE 441 (1931) .… 13.9 Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965 .… 16.24 Underhill v Sherwell (CA(NSW), 18 December 1997, BC9707083, unreported) .… 6.15 Underwood (AL) Ltd v Bank of Liverpool and Martins [1924] 1 KB 775 .… 4.24 Uniflex (Australia) Pty Ltd v Hanneybel [1999] WASC 75 .… 4.16 Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; 107 ALR 709 .… 22.9 — v — (1993) 44 FCR 481 .… 26.59 Union Bank of Australia v Waterston (1894) 12 NZLR 672 .… 27.26 Union Carbide Australia Ltd v Duracell Australia Pty Ltd (1986) 7 IPR 481 .… 22.15 Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205 .… 4.30 Union Oil Co v Oppen 501 F 2d 558 (9th Cir, 1974) .… 13.62 Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 .… 4.7, 4.18, 4.27 United Australia Ltd v Barclays Bank Ltd [1941] AC 1; [1940] 4 All ER 20 .… 27.47, 28.43, 28.44 United Merthyr Collieries Co, Re (1872) LR 15 Eq 46 .… 5.18 United Uranium NL v Fisher [1965] ALR 99 .… 10.13 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 .… 22.7

University of Wollongong v Mitchell [2003] NSWCA 94 .… 7.39 Unsworth v Commr for Railways (1958) 101 CLR 73 .… 10.14, 11.38, 29.41 Urban Transit Authority v Purcell (1994) 82 LGERA 284 .… 1.20 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81–127 .… 18.21 Ure v Humes Ltd [1969] QWN 25 .… 20.10 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 .… 5.19, 19.75, 27.10 US v Holmes (1842) 1 Wall Jr 1 .… 6.21 USA v Dollfus Mieg et Compagnie SA [1952] AC 582; 1 All ER 572 .… 4.41, 4.49 Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248; 2 All ER 344 .… 26.13, 26.53 Uzinterimpex JSC v Standard Bank Plc [2008] EWCA Civ 819 .… 4.36, 6.14

V Vabu Pty Ltd v Federal Commr of Taxation (1996) 33 ATR 537 .… 26.6 Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88; [1969] 3 All ER 1681 .… 27.39 Vail v Formato (1989) 10 MVR 12 .… 10.15 Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 .… 7.4, 7.12, 7.34, 7.39, 8.4, 8.10, 8.13, 8.31, 10.9, 10.26 Valherie v Strata Corp No 1841 Inc (2003) 86 SASR 245 .… 14.41 Valleyfield Pty Ltd v Primac Ltd [2003] QCA 339 .… 13.71 Van Camp Chocolates Ltd v Aulsebrooks Ltd [1984] 1 NZLR 354 .… 20.7, 21.25 Van Colle v Chief Constable of Hertfordshire Police [2008] 2 All ER 489 .… 7.12 — v — [2009] 1 AC 225; [2008] 3 All ER 977 .… 7.30 Van den Heuvel v Tucker (2003) 85 SASR 512 .… 9.4 Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283 .… 11.15, 11.16 Van Heeren v Cooper [1999] 1 NZLR 731 .… 25.5 Van Ingénue v Mail & Express Publishing Co (1898) 50 NE 979 .… 18.15 Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 .… 7.14, 7.42 Van Son v Forestry Commission of NSW (1995) 86 LGERA 108 .… 14.14 Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 .… 28.34 Vancouver General Hospital v McDaniel (1934) 152 LT 56 .… 8.34 Vanderpant v Mayfair Hotel Co Ltd [1930] 1 Ch 138 .… 14.15 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 .… 25.5, 25.6, 25.15, 25.22, 25.25 Varga v Galea [2011] NSWCA 76 .… 9.6 Varnas v Peake (2001) 80 SASR 351 .… 11.9 Vasilikopoulos v NSW Dept of Housing [2009] NSWDC 114 .… 7.40

Vassilef v BGC Marine Services (NSW) Pty Ltd [1980] Qd R 21 .… 11.29 Vaughan v Menlove (1837) 3 Bing NC 468; 132 ER 490 .… 7.2, 8.14, 8.20 — v Shire of Benalla (1891) 17 VLR 129 .… 5.13, 14.33 Veivers v Connolly [1995] 2 Qd R 326 .… 24.13 — v Roberts; Ex parte Veivers [1980] Qd R 226 .… 6.39 Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 .… 8.35 Vellino v Chief Constable of Greater Manchester Police [2002] 3 All ER 78 .… 6.58 Venning v Chin (1974) 10 SASR 299 .… 2.4, 2.11, 2.14, 2.18, 3.25 — v — (1974) 8 SASR 397 .… 2.19 Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188 .… 6.58 — v (2006) 157 FCR 442; 238 ALR 534 .… 4.33 Versic v Connors [1969] 1 NSWR 481 .… 11.36 Vesey v Public Trustee [1960] SASR 71 .… 27.12 Vial v Housing Commn of New South Wales [1976] 1 NSWLR 388 .… 26.34 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2005] 4 All ER 1181 . … 26.10 Vickery v McLean [2000] NZCA 338 .… 19.66 Victoria v Horvath (2002) 6 VR 326 .… 26.59 — v Subramanian (2008) 9 VR 335 .… 8.37 Victoria Aircraft Leasing Ltd v United States (2005) 12 VR 340 .… 29.8 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 .… 1.12, 5.1, 14.13, 14.24 Victorian Railways Commrs v Coultas (1888) 13 App Cas 222 .… 7.43 Videan v British Transport Commission [1963] 2 QB 650; 2 All ER 860 .… 7.26, 7.38 Viera v Water Board (1988) Aust Torts Reports 80–166 .… 9.15 Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports 81–541 .… 3.37, 27.7 Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330 .… 22.10 Villasevil v Pickering (2001) 24 WAR 167 .… 11.8 Vincent v Lake Erie Transportation Co (1910) 124 NW 221 .… 6.23 — v Peacock [1973] 1 NSWLR 466 .… 27.51 Vink v Schering Pty Ltd (1991) ATPR 41–064 .… 22.52 Viro v R (1978) 141 CLR 88; 18 ALR 257 .… 6.41 Visa International Services Assoc v Beiser Corporation Pty Ltd (1983) 1 IPR 471 .… 22.20 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 .… 18.23, 18.26 Voli v Inglewood Shire Council (1963) 110 CLR 74 .… 7.8, 7.38, 8.26, 13.71, 26.34, 29.39, 29.40 Von Hartmann v Kirk [1961] VR 544 .… 9.11, 9.18

Vozza v Tooth & Co Ltd (1964) 112 CLR 316 .… 8.38 Vreman v Albury CC [2011] NSWSC 39 .… 8.10 Vreman v Albury City Council [2011] NSWCA 98 .… 10.27 Vunic v The South Australian Housing Trust (1988) Aust Torts Reports 80–211 .… 8.33

W W v Attorney-General [2003] NZCA 150 .… 26.55 — v Eaton [2011] TASSC 4 .… 2.24 — v W [1999] 2 NZLR 1 .… 27.13 W (A Minor) (Medical Treatment: Court’s Jurisdiction), Re [1993] Fam 64; [1992] 4 All ER 627 .… 6.9 W H Brine & Co v Whitton (1981) 37 ALR 190 .… 4.38 Wade v Victoria [1999] 1 VR 121 .… 17.3 Wadsworth v Lydall [1981] 2 All ER 401 .… 27.27 Wagner v International Railway Co (1921) 232 NY Rep 176 .… 7.25 Wagon Mound (The) (No 1) see Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd Wagon Mound (The) (No 2) see Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd Wainwright v Home Office [2004] 2 AC 406; [2003] 4 AII ER 969 .… 3.11, 3.22, 3.23, 17.4 Waipa DC v Widdowson [2007] DCR 33 .… 7.14 Waite v North Eastern Railway Co (1858) 1 E B & E 719; 120 ER 679 .… 10.14 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 .… 18.19, 19.5 Wakelin v London and South Western Ry Co (1886) 12 App Cas 41 .… 9.2 Wakelin v LSW Ry Co (1886) 12 App Cas 41 .… 8.39, 8.40 Wakley v Cooke (1849) 4 Ex 511; 154 ER 1316 .… 19.3 Walker v Adelaide City Corporation (2004) 88 SASR 225 .… 26.31 — v Baird [1892] AC 491 .… 6.55 — v Clyde (1861) 10 CB (NS) 381 .… 4.31 — v Hall (1876) 40 JP 456 .… 15.17 — v Northumberland County Council [1995] 1 All ER 737 .… 7.32 — v Turton-Sainsbury [1952] SASR 159 .… 8.5, 8.27 Walker Hobson & Hill Ltd v Johnson [1981] 2 NZLR 532 .… 13.41, 27.45 Walkin v South Manchester Health Authority [1995] 4 All ER 132 .… 28.4 Wall v Meyrick (1879) 5 VLR 260 .… 6.48 Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 355 .… 9.2 Wallace v Kam [2012] HCA Trans 251 .… 9.5 — v — [2012] NSWCA 82 .… 9.5

Waller v James (2006) 226 CLR 136; 226 ALR 457 .… 7.60 Walsh v Ervin [1952] VLR 361 .… 14.6, 14.54, 14.58 — v Holst & Co Ltd [1958] 3 All ER 33 .… 8.46 — v Little [2009] NSWSC 267 .… 7.40 Walshe v Prest [2005] NSWCA 333 .… 11.10 Walter v Alltools Ltd (1944) 171 LT 371 .… 3.37 — v Selfe (1851) 4 De G & Sm 315; 64 ER 849 .… 14.11 Walters v Sloan (1977) 571 P 2d 609 .… 7.26 — v W H Smith & Sons Ltd [1914] 1 KB 595 .… 6.37 Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 .… 25.22 Wandsworth London Borough Council v Railtrack plc [2002] QB 756 .… 14.55 Wann v Fire & All Risks Insurance Co Ltd [1990] 2 Qd R 596 .… 11.14 Ward v Hopkins [1959] 3 All ER 225 .… 7.27 — v Macauley (1791) 4 Term Rep 489 .… 4.48, 4.49 — v Murphy (1937) 38 SR (NSW) 85 .… 6.47 — v Tesco Stores Ltd [1976] 1 All ER 219 .… 8.45 — v Walton (1989) 66 NTR 20 .… 28.23 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247 .… 22.49, 22.51, 28.12, 28.16, 28.17 Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180 .… 18.15 Warlock v Saws (1981) 260 Estates Gazette 920 .… 8.34 Warner v Riddiford (1858) 4 CB (NS) 180 .… 3.27, 3.29, 6.7 Warren v Coombes (1979) 142 CLR 531 .… 8.36 — v Haines (1986) Aust Torts Reports 80–014 .… 7.21, 7.29 — v Warren (1834) 1 Cr M & R 250; 149 ER 1073 .… 18.18 Warwicker v Zadow (1989) Aust Torts Reports 80–276 .… 7.9 Waterhouse v Australian Broadcasting Commn (1988) 90 FLR 25 .… 18.10 — v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 .… 19.41 Waters v Maynard (1924) 24 SR (NSW) 618 .… 5.6, 5.19, 27.3 Watkins v Home Office [2006] 2 AC 395; 2 All ER 353 .… 25.32 — v Lee (1839) 5 M & W 270; 151 ER 115 .… 25.5 Watson v Bodell (1845) 14 M & W 57 .… 6.47, 6.48 — v Cowen [1959] Tas SR 194 .… 5.3 — v Croft Promosport Ltd [2009] 3 All ER 249 .… 14.22, 14.52 — v Dolmark Industries Ltd [1992] 3 NZLR 311 .… 23.35

— v George (1953) 89 CLR 409 .… 7.40 — v Haines (1987) Aust Torts Reports 80–094 .… 7.21, 8.13 — v M’Ewan [1905] AC 480 .… 19.34, 25.1 — v Marshall and Cade (1971) 124 CLR 621 .… 3.29, 3.37 — v McClean (1858) E B & E 78 .… 4.17 — v Murray & Co [1955] 2 QB 1; 1 All ER 350 .… 5.6, 5.16 — v Walter (1868) LR 4 QB 73 .… 19.40 — v Winget Ltd (1960) SC (HL) 100 .… 28.10 Watt v Bretag (1981) 27 SASR 301 .… 10.12, 10.17 — v — (1982) 41 ALR 597 .… 10.12, 10.16, 10.17 — v Hertfordshire County Council [1954] 2 All ER 368 .… 8.7, 8.8 — v Longsdon [1930] 1 KB 130 .… 19.47 — v Rama [1972] VR 353 .… 7.16 — v Thomas [1947] AC 484; 1 All ER 582 .… 8.36 Watters v May Bros Ltd [1932] SASR 418 .… 21.51 — v Queensland Rail [2001] 1 Qd R 448 .… 28.27 Watters and Town of Glace Bay, Re (1987) 34 DLR (4th) 747 .… 3.30 Watts v Public Trustee [1980] WAR 97 .… 13.77 — v Rake (1960) 108 CLR 158 .… 9.11, 9.15, 9.19 — v Times Newspapers Ltd [1997] QB 650; [1996] 1 All ER 152 .… 19.44, 19.78 Waugh v Kippen (1986) 160 CLR 156 .… 8.5 — v Montgomery (1882) 8 VLR (L) 290 .… 15.7, 15.9 — v Waugh (1950) 50 SR (NSW) 210 .… 26.18, 26.40 Waverley Borough Council v Fletcher [1995] 3 WLR 772; 4 All ER 756 .… 4.12 Waverley Council v Ferreira [2005] NSWCA 418 .… 10.11 Waverley Municipal Council v Swain [2003] NSWCA 61 .… 8.36 Wayne v Broekhuyse [1997] ACTSC 51 .… 3.29 WD & HO Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 .… 1.18, 7.28 WEA International Inc v Hanimex Corp Ltd (1987) 77 ALR 456 .… 22.40 Wearing v Pirelli Ltd [1977] 1 All ER 339 .… 16.27 Weaver v Ward (1616) Hob 134 .… 2.2, 3.6, 3.8 Webb v Bloch (1928) 41 CLR 331 .… 19.3, 19.57 — v South Australia (1982) 43 ALR 465 .… 8.4, 8.32 — v Times Publishing Co [1960] 2 QB 535; 2 All ER 789 .… 19.41 Webber v Warren (1884) 1 WN (NSW) 5 .… 6.51

Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271 .… 19.3 Webster v Lampard (1993) 177 CLR 598; 116 ALR 545 .… 6.50 Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25 .… 26.43 Weedair (NZ) Ltd v Walker [1961] NZLR 153 .… 5.9 Weeks v Weeks (1977) 81 DLR (3d) 371 .… 15.8 Wehr v Thom [1969] WAR 39; Snarski v Barbarich [1969] WAR 46 .… 23.25 Weideck v Williams [1999] NSWCA 346 .… 11.21 Weinert v Schmidt (2002) 84 SASR 307 .… 11.19 Weitmann v Katies Ltd (1977) 29 FLR 336 .… 22.19 Weldon v ‘The Times’ Book Co Ltd (1911) 28 TLR 143 .… 18.23 Weldon v Home Office [1990] 3 All ER 672 .… 3.33 Wellaway v Courtier [1918] 1 KB 200 .… 5.7, 15.7, 15.10 Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569; [1965] 3 All ER 560 .… 13.6 Wells v Cooper [1958] 2 QB 265; 2 All ER 527 .… 8.24, 26.34 — v Croskery [1952] NZLR 312 .… 19.48 — v D’Amico [1961] VR 672 .… 27.36 — v Sainsbury [1962] NZLR 552 .… 9.10 — v Wells [1999] 1 AC 345; [1998] 3 All ER 481 .… 11.26 Wenck v Morris Woollen Mills (Ipswich) Pty Ltd [1974] Qd R 142 .… 16.30 Wenman v Ash (1853) 13 CB 836; 138 ER 1432 .… 18.18 Wennhak v Morgan (1888) 20 QBD 635 .… 4.49, 18.18 Wentworth v Wentworth (2000) 52 NSWLR 602 .… 25.1 — v Wiltshire County Council [1993] QB 654; 2 All ER 256 .… 16.22 Wershof v Commissioner of Police for the Metropolis [1978] 3 All ER 540 .… 6.37, 25.15 Wertheim v Cheel (1885) 11 VLR 107 .… 4.5 West v Government Insurance Office of New South Wales (1981) 148 CLR 62; 35 ALR 437 .… 8.39 — v Mirror Newspapers Ltd ((CA)NSW, 14 May 1973, unreported) .… 18.3 — v Smallwood (1838) 3 M & W 418 .… 3.36 West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535; 23 ALR 257 .… 17.10 — v Elliott (2008) 37 WAR 387 .… 19.11 West Wiltshire District Council v Garland [1995] Ch 297; 2 All ER 17 .… 16.14, 16.24 Western Australia v Bond Corp Holdings Ltd (1991) 5 WAR 40 .… 29.3 — v Ward (2002) 213 CLR 1 .… 5.13 — v Watson [1990] WAR 248 .… 9.2, 11.8

Western Bank of Scotland v Addie (1867) LR 1 Sc & Div 145 .… 23.15 Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184 .… 4.37, 4.39 Western Districts Development Pty Ltd v Baulkham Hills Shire Council (2009) 75 NSWLR 706 .… 13.52 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 .… 1.16, 7.39, 8.2 Weston v Woodroffe (1985) 36 NTR 34 .… 11.29 Westpac Banking Corp v Hughes [2012] 1 Qd R 581 .… 4.29 Westripp v Baldock [1938] 2 All ER 779 .… 5.3 — v — [1939] 1 All ER 279 .… 5.3 Whalley v Lancashire Ry Co (1884) 13 QBD 131 .… 6.23 Whatman v Pearson (1868) LR 3 CP 422 .… 26.48 Whayman v Motor Accidents Insurance Board [2003] TASSC 149 .… 7.47 Wheatley v Lodge [1971] 1 WLR 29 .… 6.42 Wheeler v Federal Capital Press of Australia Ltd (SC(ACT), Kelly J, 17 April 1984, unreported) .… 18.19 — v JJ Saunders Ltd [1996] Ch 19; [1995] 2 All ER 697 .… 14.25 — v New Merton Board Mills Ltd [1933] 2 KB 669 .… 16.33 — v Page (1982) 31 SASR 1 .… 27.32 Wheeler, Grace & Pierucci Pty Ltd v Wright (1989) ATPR 40–940 .… 22.34 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 .… 19.10 — v Padgett [1969] Tas SR 17 .… 8.49 Wherry v K B Hutcherson Pty Ltd (1987) Aust Torts Reports 80–107 .… 14.14, 14.26, 14.28 Whinray v Public Trustee [1943] NZLR 239 .… 23.35, 23.36 Whitbread v Rail Corp of NSW [2011] NSWCA 130 .… 3.14 White v Blackmore [1972] 2 QB 651; 3 All ER 158 .… 10.24, 10.26 — v Chief Constable of South Yorkshire Police [1999] 2 AC 455; 1 All ER 1 .… 7.25, 7.26, 7.43, 7.50, 7.52, 9.11 — v Humphries (1984) 1 MVR 426 .… 14.45, 14.55 — v Jones [1995] 2 AC 207; 1 All ER 691 .… 1.2, 7.11, 7.13, 13.7, 13.14, 13.72, 13.77, 13.78, 13.79 — v Morris (1852) 11 CB 1015 .… 4.50 — v South Australia (2010) 106 SASR 521 .… 27.7 — v Stone Lighting & Radio Ltd [1939] 2 KB 827; 3 All ER 507 .… 18.18 — v Withers LLP [2009] EWCA Civ 1122 .… 4.22 Whiteford v Hunter (1950) 94 Sol Jo 758 .… 8.34 Whitehouse v Jordan [1980] 1 All ER 650 .… 8.28 — v — [1981] 1 WLR 246; 1 All ER 267 .… 8.27, 8.28

Whiteley v Hilt [1918] 2 KB 808 .… 4.39, 4.60 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 .… 21.12, 21.18, 21.21, 27.10, 27.11 — v Turner (1920) 28 CLR 97 .… 26.51 — v McPherson (1995) 21 MVR 18 .… 10.28, 10.30 Whittaker v Child Support Registrar (2010) 264 ALR 473 .… 25.31 — v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 .… 16.26 Whitwham v Westminster Brymbo Coal and Coke Co [1896] 1 Ch 894 .… 5.17 — v — [1896] 2 Ch 538 .… 5.17 Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 All ER 117 .… 4.35, 4.37 Wicks v Fentham (1791) 4 Term Rep 247; 100 ER 1000 .… 25.5 — v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23 .… 7.47, 7.48 Wieben v Wain (1991) 13 MVR 393 .… 11.13 Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 .… 9.8, 9.14 Wiffen v Bailey [1915] 1 KB 600 .… 25.16, 25.17, 25.19 Wiffin v Kincard (1807) 2 Bos & Pul 471 .… 3.10 Wilbe v City of Munno Para [2002] SASC 425 .… 7.39 Wilchick v Marks [1934] 2 KB 56 .… 14.42 Wilcox v Police [1994] 1 NZLR 243 .… 6.21 Wilde v Waters (1855) 24 LJ CP 193 .… 4.31 Wilkins v Leighton [1932] 2 Ch 106 .… 14.40 — v Manning (1897) 13 WN (NSW) 220 .… 15.24, 15.25 Wilkinson v Downton [1897] 2 QB 57; 66 LJQB 493 .… 3.21, 3.22, 3.23 — v Verity (1871) LR 6 CP 206 .… 4.62 Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 2 All ER 369 .… 8.29 Willcock v Andrews [1965] WAR 129 .… 24.12 Willett v Futcher (2005) 221 CLR 627; 221 ALR 16 .… 11.20 Willey v Synan (1937) 57 CLR 200 .… 4.13 William Leitch and Co Ltd v Leydon [1931] AC 90 .… 4.46, 6.5 Williams v Archer (1847) 5 CB 318 .… 4.41, 4.61 — v Attorney-General [1990] 1 NZLR 646 .… 7.14 — v BOC Gases Ltd [2000] ICR 1181 .… 11.22, 11.24 — v Davidson (1923) 23 SR (NSW) 187 .… 27.16 — v Fanshaw Porter & Hazelhurst [2004] 2 All ER 616 .… 28.33 — v Hayes (1894) 42 Am SR 743 .… 8.17 — v Holland (1833) 10 Bing 112 .… 2.7

— v Humphrey, The Times, 13 February 1975 .… 3.2 — v Hursey (1959) 103 CLR 30 .… 21.5, 21.45, 21.51, 21.53, 21.56, 27.7, 27.11 — v John Fairfax Group Pty Ltd (1991) 7 BR 160 .… 18.20 — v Mersey Docks & Harbour Board [1905] 1 KB 804 .… 28.36 — v Milotin (1957) 97 CLR 465; [1957] ALR 1145 .… 2.3, 2.10, 2.11, 2.14, 2.18, 2.24, 3.25 — v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 .… 3.25 — v Minister, Aboriginal Lands Rights Act 1983 [1999] NSWSC 843 .… 7.23 — v Natural Life Health Foods Ltd [1998] 1 WLR 830; 2 All ER 577 .… 13.22, 26.15 — v Peel River Land and Mineral Co Ltd (1886) 55 LT 689 .… 4.61 — v R (1986) 161 CLR 278; 66 ALR 385 .… 6.38, 6.39, 6.43, 6.44, 6.45 — v Smith (1863) 14 CB NS 596 .… 6.47 — v Spautz (1992) 174 CLR 509; 107 ALR 635 .… 25.22, 25.23 — v The Peel River Land and Mineral Co Ltd (1886) 55 LT 689 .… 4.41 — v Volta [1982] VR 739 .… 27.29 — v Welsh Ambulance Service NHS Trust [2008] EWCA Civ 71 .… 11.46 — v Williams and Nathan [1937] 2 All ER 559 .… 6.47 — v Zupps Motors Pty Ltd [1990] 2 Qd R 493 .… 28.32 Williams (Bill) Pty Ltd v Williams (1972) 126 CLR 146 .… 12.8 Williamson v Allison (1802) 2 East 446; 102 ER 439 .… 23.14 — v Commr for Railways [1960] SR (NSW) 252 .… 27.23 — v Friend (1901) 1 SR (NSW) (Eq) 133 .… 14.42 — v John I Thorneycroft & Co Ltd [1940] 2 KB 658 .… 9.22 Willis v Castelein [1993] 3 NZLR 103 .… 13.13, 13.68, 16.22 Wills v Bell (2002) 37 MVR 494 .… 6.59 — v Wells (1818) 2 Moore CP 247 .… 4.17 Wilsher v Essex Area Health Authority [1987] QB 730; [1986] 3 All ER 801 .… 9.3 Wilson v Barker (1833) 4 B & Ad 614 .… 4.48 — v Brett (1843) 11 M & W 113 .… 8.30 — v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43 .… 10.23, 10.24 — v Hodgson’s Kingston Brewery Co (1915) 85 LJKB 270 .… 26.36 — v Horne (1999) 8 Tas R 363 .… 28.14 — v Kelly [1957] VR 147 .… 5.17 — v Lombank Ltd [1963] 1 All ER 740 .… 4.48, 4.51 — v Marshall [1982] Tas SR 287 .… 4.46 — v McLeay (1961) 106 CLR 523 .… 11.14

— v New Brighton Panelbeaters Ltd [1989] 1 NZLR 74 .… 4.27, 4.30, 4.47 — v New South Wales (2001) 53 NSWLR 407 .… 7.12 — v Nilepac Pty Ltd [2011] NSWCA 63 .… 9.6 — v Peisley (1975) 7 ALR 571 .… 9.11 — v Pringle [1987] QB 237; [1986] 2 All ER 440 .… 3.5, 3.10, 6.10 Wilsons & Clyde Coal Co v English [1938] AC 57; [1937] 3 All ER 628 .… 26.26 Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644 .… 4.16, 6.14 Wiltshire v Barrett [1966] 1 QB 312 .… 6.39 Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 .… 5.19, 5.22 Wing v London General Omnibus Co [1909] 2 KB 652 .… 8.45 Winkfield (The) [1902] P 42 .… 4.5, 4.14, 4.35, 4.48 Winnifred Wai Yue Yu v Allan Ni Kwan Kwok [1999] NSWSC 992 .… 4.27 Winnipeg Condominium Corp No 36 v Bird Construction Co (1995) 121 DLR (4th) .… 13.65, 13.66 Winnote Pty Ltd v Page (2006) 68 NSWLR 531 .… 28.16 Winstanley v Bampton [1943] KB 319; 1 All ER 661 .… 19.44 Winter v Bancks (1901) 84 LT 504 .… 4.28, 4.30 — v Bennett [1956] VLR 612 .… 10.15, 10.16 Winterbottom v Wright (1842) 10 M & W 109; 152 ER 402 .… 7.2 Winterbourne v Morgan (1809) 11 East 395 .… 5.5 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97; 111 ALR 649 .… 22.40 Withers v Perry Chain Co Ltd [1961] 3 All ER 676 .… 10.25 WMC Ltd v Westgold Resources NL (1997) 39 IPR 319 .… 22.19 Wodrow v Commonwealth (1993) 45 FCR 52 .… 8.29 Wollington v State Electricity Commission [1980] VR 91 .… 11.22 Wood v Balfour [2011] NSWCA 382 .… 23.18 — v Fetherston (1901) 27 VLR 492 .… 6.51 — v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 .… 28.27 — v Lane (1834) 6 C & P 774 .… 3.29 — v Morewood (1841) 3 QB 440n .… 5.18 Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 .… 10.20 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 .… 19.40 Woodland v Essex County Council [2012] EWCA Civ 239 .… 7.21, 26.29 Woodley v Boyd (CA(NSW), 2 March 2001, BC200100621, unreported) .… 6.41 Woodman v Rasmussen [1953] St R Qd 202 .… 27.45 Woods v Duncan [1946] AC 401; 1 All ER 420 .… 2.20, 8.48, 8.50

— v Lowns (1995) 36 NSWLR 344 .… 7.18 — v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 .… 7.39, 8.10, 10.26, 10.30 Woodward v Mayor of Hastings [1945] KB 174; [1944] 2 All ER 565 .… 26.34 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 .… 7.12, 13.15, 13.68, 13.69 Wooldridge v Sumner [1963] 2 QB 43; [1962] 2 All ER 978 .… 8.20, 8.27, 8.28, 10.22 Woollahra Municipal Council v Sved (1996) 40 NSWLR 101 .… 13.22, 13.26, 13.72, 13.74 Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 All ER 483; [1970] 1 WLR 411 .… 5.20, 5.21, 27.51 Woolley v Dunford (1972) 3 SASR 243 .… 21.3, 21.12, 21.22 Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540 .… 29.33 Woolworths Ltd v Crotty (1942) 66 CLR 603 .… 11.33, 11.35 Worden v Yeats [1964] SASR 381 .… 11.51 Workcover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; 271 ALR 203 .… 11.55 Workers’ Compensation Board v Seltsam Pty Ltd [1999] 2 Qd R 679 .… 28.34 Workington Harbour and Dock Board v SS Towerfield (Owners) [1951] AC 112; [1950] 2 All ER 414 . … 8.13 Workman v Cowper [1961] 2 QB 143; 1 All ER 683 .… 6.19 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 .… 22.19, 22.24 Wormald v Cole [1954] 1 QB 614; 1 All ER 683 .… 15.7, 15.9, 27.15 — v Robertson (1992) Aust Torts Reports 81–180 .… 9.16 Wornes v Rankmore; Ex parte Rankmore [1976] Qd R 85 .… 6.42 Worsfold v Howe [1980] 1 All ER 1028 .… 8.13 Worth v Gilling (1866) LR 2 CP 1 .… 15.14 Woyka & Co v London & Northern Trading Co (1922) 10 L1 L Rep 110 .… 23.35 Wright v A-G (Tasmania) (1954) 94 CLR 409 — v British Railways Board [1983] 2 AC 773; 2 All ER 698 .… 11.6, 27.25 — v Callwood [1950] 2 KB 515 .… 8.38 — v Cedzich (1930) 43 CLR 493 .… 24.3 — v Cheshire County Council [1952] 2 All ER 789 .… 8.34 — v Court (1825) 4 B & C 596; 107 ER 1182 .… 6.42, 6.44 — v Donatelli (1995) 65 SASR 307 .… 28.23 — v Johnson (1980) 25 SASR 595 .… 11.44 — v Lewis (1990) 53 SASR 416 .… 19.32 — v Midland Rly Co (1884) 51 LT 539 .… 11.39 — v Ramscot (1665) 1 Wms Saund 183 .… 4.46

— v WA Trustee Executor & Agency Co Ltd [1987] VR 771 .… 11.43 — v Wilson (1699) 1 Ld Raym 739 .… 3.26 — v Woodgate (1835) 2 Cr M & R 573; 150 ER 244 .… 19.51 Wringe v Cohen [1940] 1 KB 229; [1939] 4 All ER 241 .… 14.42 Wu v Body Corporate 366611 [2011] 2 NZLR 837 .… 14.43 Wyatt v Rosherville Gardens Co (1886) 2 TLR 282 .… 15.13 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 .… 10.17, 10.18 Wynn v NSW Insurance Ministerial Corp (1995) 184 CLR 485; 133 ALR 154 .… 11.8 Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 .… 16.6 Wynne v Green (1901) 1 SR (NSW) 40 .… 5.14 Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 .… 7.8, 7.39, 8.4, 8.5, 8.7, 8.31 — v Vairy (2004) Aust Torts Reports 81–754 .… 10.26

X X v Bedfordshire County Council [1995] 2 AC 633; 3 All ER 353 .… 7.12, 7.22, 7.33, 16.8, 16.23 — v Pal (1991) 23 NSWLR 26 .… 7.16, 9.2 — v South Australia (No 2) [2005] SASC 150 .… 7.30 — v — (No 3) (2007) 97 SASR 180 .… 25.1 X(1) and (X)2 v London Borough of Hounslow [2009] EWCA Civ 286 .… 7.12 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639 .… 5.19, 27.10, 27.11, 29.25

Y Yachuk v Oliver Blais Co Ltd [1949] AC 386; 2 All ER 150 .… 8.15 Yakamia Dairies Pty Ltd v Wood [1976] WAR 57 .… 5.17 Yates v Costain Australia Ltd (1989) 18 NSWLR 312 .… 28.34 — v Jones (1990) Aust Torts Reports 81–009 .… 9.15 — v Whitlam (1999) 32 ACSR 595 .… 22.10 Yates Property Corp Pty Ltd v Boland (1998) 85 FCR 84; 157 ALR 30 .… 8.27 — v — (1999) 167 ALR 575 .… 8.27 Yearworth v North Bristol NHS Trust [2010] QB 1; [2009] 2 All ER 986 .… 4.16, 27.7 Yeldham v Rajski (1989) 18 NSWLR 48 .… 25.1 Yellard v Powell Duffryn Associated Collieries Ltd [1941] 1 KB 154; 1 All ER 278 .… 16.32 Yorke v Lucas (1985) 158 CLR 661; 61 ALR 307 .… 22.27, 23.3 — v Ross Lucas Pty Ltd (1982) 45 ALR 299 .… 22.26, 22.27, 22.29, 22.50 Yorke Bros (Trading) Pty Ltd v Commr of Main Roads [1983] 1 NSWLR 391 .… 14.6, 14.22, 14.52, 14.55

Yorkshire Electricity Board v Naylor [1968] AC 529; [1967] 2 All ER 1 .… 11.30 Youl v Harbottle (1791) Peake 68 .… 4.30 Young v Bella (2006) 261 DLR (4th) 516 .… 17.3 — v Northern Territory (1992) 107 FLR 264 .… 8.35 — v Rank [1950] 2 KB 510; 2 All ER 166 .… 8.37 — v Tomlinson [1979] 2 NZLR 441 .… 27.7 — v Wheeler (1987) Aust Torts Reports 80–126 .… 14.15, 14.41, 14.53, 27.3 — v Wheeler (SC(NSW), 12 July 1985, BC8500699, unreported) .… 6.26 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 .… 18.3 Yuen Kun Yeu v A-G for Hong Kong [1988] AC 175; [1987] 2 All ER 705 .… 7.11, 7.33, 13.18, 13.34

Z Zabihi v Janzemini [2009] EWCA Civ 851 .… 4.38 Zaltron v Raptis [2001] SASC 209 .… 9.4 Zanatta v McCleary [1976] 1 NSWLR 230 .… 6.52 Zanker v Vartzokas (1988) 34 A Crim R 11 .… 3.20, 3.27 Zanner v Zanner (2010) 79 NSWLR 702 .… 9.6, 29.18 — v — [2010] NSWCA 343 .… 8.16 Zappia v Allsop (CA(NSW), 17 March 1994, unreported) .… 15.21 Zavitsanos v Chippendale [1970] 2 NSWR 495 .… 11.36 Zecevic v DPP (Vic) (1987) 162 CLR 645; 71 ALR 641 .… 6.15 Zheng v Deju Cai (2009) 239 CLR 446; 261 ALR 481 .… 11.22 Zhu v Treasurer of New South Wales (2004) 218 CLR 510; 211 ALR 159 .… 21.5, 21.15, 21.18, 21.19, 27.11 Zimmler v Manning [1863] 2 SCR 235 .… 6.24 Zinc Corporation v Scarce (1995) 12 NSWCCR 566 .… 9.6 Zoernsch v Waldock [1964] 1 WLR 675 .… 7.19 Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445 .… 22.50 — v — (1990) ASC 56–019 .… 22.50 Zordan v Metropolitan (Perth) Passenger Transport Trust [1963] ALR 513 .… 11.51 Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354 .… 26.40, 26.43 Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 .… 26.4 Zumeris v Testa [1972] VR 839 .… 9.11, 9.19 Zumpano v Montagnese [1997] 2 VR 525 .… 13.68, 26.33 Zwickert v Capital Territory Health Commn (1988) Aust Torts Reports 80–179 .… 8.29

Table of Statutes References are to paragraphs Commonwealth Administrative Appeals Tribunal Act 1975 s 60 .… 19.33 s 60(c)(2) .… 7.57 Australian Consumer Law .… 16.1, 23.12 s 2(2)(a) .… 22.37 s 2(2)(c) .… 22.37 s 4 .… 22.33, 22.34 s 4(2) .… 22.33 s 4(3) .… 22.33 s 18 .… 1.1, 1.4, 11.35, 13.20, 13.43, 17.14, 17.15, 17.16, 20.3, 20.6, 22.2, 22.3, 22.4, 22.7, 22.12, 22.13, 22.14, 22.16, 22.17, 22.18, 22.20, 22.21, 22.22, 22.23, 22.26, 22.27, 22.28, 22.29, 22.30, 22.32, 22.33, 22.35, 22.36, 22.37, 22.38, 23.39, 22.41, 22.44, 22.46, 22.48, 22.50, 22.51, 22.53, 23.1, 23.3, 23.8, 23.9, 23.11, 23.17, 23.20, 23.21, 23.24, 23.27, 23.30, 23.37, 23.40, 29.32, 29.42 s 18(1) .… 22.3 s 18(2) .… 22.3 s 19 .… 17.15, 17.16 s 29 .… 17.15 s 30 .… 22.32 s 38 .… 17.15 s 38 .… 17.15 s 38 .… 17.15 s 38 .… 17.15 s 38 .… 17.15 s 60 .… 10.27 s 64 .… 10.27 s 138(3) .… 11.34 s 138(3)(b) .… 11.35 s 145 .… 11.53 s 152 .… 22.32 s 232 .… 17.14, 22.4, 22.45 s 232(4) .… 22.45 s 232(4)(c) .… 23.3 s 234 .… 22.45 s 236 .… 10.27, 11.35, 13.20, 17.14, 22.4, 22.27, 22.46, 22.47, 22.48, 22.49, 22.53, 23.3, 23.30, 23.31, 23.34 s 236(2) .… 22.51, 22.52 s 237 .… 22.54 s 237(1) .… 22.54 s 237(3) .… 22.54 s 243 .… 22.54

Pt 3-1 .… 22.3 Pt 3-2 Div 1 .… 1.14, 13.64 Pt 3-5 .… 11.53 Pt 5-2 .… 22.44 Australian Federal Police Act 1979 s 64B .… 26.59 Australian Postal Corporation Act 1989 s 34(1) .… 18.26 Australian Securities and Investments Commission Act 2001 s 11GP(1) .… 29.42 s 12GNA .… 13.43 ss 12GP-12GW .… 29.42 s 12GP(3) .… 29.42 s 12GR(1) .… 29.42 s 12GR(3)(a) .… 29.42 s 12GR(3)(b) .… 29.42 s 12GT .… 29.42 Pt 2 Div 2 Subdiv GA .… 29.42 Bankruptcy Act 1966 s 60(2) .… 29.21 s 60(4) .… 29.21 s 82(2) .… 27.42, 27.48, 29.20 s 117 .… 29.20 s 134(1)(a) .… 25.42 s 153(1) .… 27.42, 29.20 Broadcasting Services Act 1992 Sch 5 cl 91(1) .… 18.26 Cheques Act 1986 s 98 .… 4.29 Civil Aviation (Carriers’ Liability) Act 1959 s 9D(2) .… 12.41 s 9E .… 12.41 s 12(3) .… 12.42 s 12(8) .… 12.42 s 15 .… 12.42 s 16 .… 12.42 s 25K .… 12.40 s 27(1) .… 12.40 s 28 .… 12.40 s 31(1) .… 12.41 s 34 .… 12.41, 28.7 s 35(2) .… 12.41 s 35(3) .… 12.42 s 35(8) .… 12.42 s 36 .… 12.41 s 38 .… 12.42 s 39 .… 12.42 Pt IV .… 12.40, 28.7 Sch 1A .… 12.40 Commonwealth of Australia Constitution

s 49 .… 6.53 s 50 .… 6.53 s 51(xxxi) .… 6.56 s 109 .… 6.9 Competition and Consumer Act 2010 s 2A .… 22.6 s 4 .… 22.9 s 45(2) .… 21.54 ss 45D-45DD .… 20.3 s 75B .… 22.53 s 87B .… 21.54 ss 87CB-87CI .… 29.42 s 87CB(1) .… 29.42 s 87CB(3) .… 29.42 s 87CD(1) .… 29.42 s 87CD(3)(a) .… 29.42 s 87CD(3)(b) .… 29.42 s 87CF .… 29.42 s 131 .… 10.27, 22.2 s 137 .… 13.43 s 137B .… 22.36, 23.34 s 137C .… 10.23 s 137C(1) .… 11.35 s 139A .… 10.27 s 139A(4) .… 10.27 Pt IV .… 21.7 Pt VIA .… 29.42 Sch .… 17.14 Consular Privileges and Immunities Act 1972 .… 29.9 Copyright Act 1968 Pt XIA .… 16.14 Corporate Law Economic Reform Program (Audit, Reform and Corporate Disclosure) Act 2004 Sch 3 .… 23.36 Corporations Act 2001 s 191 .… 16.15 s 420 .… 25.42 s 477(2)(c) .… 25.42 s 588M .… 25.42 s 588W .… 25.42 ss 1041L-1041S .… 29.42 s 1041L(1) .… 29.42 s 1041L(3) .… 29.42 s 1041N(1) .… 29.42 s 1041N(3)(a) .… 29.42 s 1041N(3)(b) .… 29.42 s 1041P .… 29.42 s 1044B .… 13.43 Pt 7.10 Div 2A .… 29.42 Crimes Act 1914 s 19B .… 25.6

s 23C .… 6.43, 6.45 Pt ID .… 6.44 Pt VIIC Div 3 .… 19.8 Criminal Code s 5.2(3) .… 3.3 s 10(4) .… 6.17, 6.18 Customs Act 1901 s 205(6) .… 4.55 s 210 .… 6.38 ss 219V-219Z .… 6.49 Defence Force Discipline Act 1982 s 193(1) .… 6.57 Diplomatic Privileges and Immunities Act 1967 .… 29.9 Fair Work Act 2009 .… 16.21 Pt 3-3 Div 2 .… 21.1, 21.8, 29.10 Pt 3-3 Div 3 .… 21.54 Fair Work (Registered Organisations) Act 2009 s 27 .… 29.10 Family Law Act 1975 .… 24.3 s 66B .… 24.12 s 119 .… 29.15 s 120 .… 11.53, 24.2, 28.42 Foreign States Immunities Act 1985 s 3 .… 29.8 s 3(1) .… 29.8 s 3(3) .… 29.8 s 9 .… 29.8 s 13 .… 29.8 s 14 .… 29.8 s 22 .… 29.8 Health and Other Services (Compensation) Act 1995 .… 11.23 Income Tax Assessment Act 1997 s 15-30 .… 27.23 Insurance Contracts Act 1984 s 9(1)(e) .… 29.40 s 65 .… 24.15, 29.35 s 66 .… 29.40 Judiciary Act 1903 s 64 .… 26.57, 27.48, 29.1, 29.3 Marriage Act 1961 s 111A .… 11.54 Migration Act 1958 .… 6.49 s 92 .… 6.42 National Security Act 1939 .… 6.56 National Security Regulations reg 60H .… 6.56 Navigation Act 1912 s 120 .… 6.49 s 126 .… 6.49 s 190AA .… 6.49

s 210 .… 6.49 s 211(1) .… 6.50 ss 412-414 .… 6.49 Navigation (Loading and Unloading) Regulations 1941 reg 31 .… 16.18 Occupational Health and Safety Act 1991 s 79(a) .… 16.6 Occupational Health and Safety (Maritime Industry) Act 1993 s 118(a) .… 16.6 Ombudsman Act 1976 s 14 .… 6.49 s 33 .… 6.50 Parliamentary Privileges Act 1987 s 7 .… 6.53 s 16(1) .… 6.53, 19.32 s 16(2)(a) .… 6.53 Privacy Act 1988 .… 17.4 Public Service Act 1999 .… 20.16 Safety Rehabilitation and Compensation Act 1988 .… 12.7 s 4(1) .… 12.8 s 5A .… 12.8 s 6(1) .… 12.9 s 6(1)(b) .… 12.9 s 7(1) .… 12.8 s 14(2) .… 12.9 s 44 .… 11.4, 12.11, 16.6 s 45 .… 11.4, 12.11, 16.6 s 50 .… 12.11, 20.20 Seafarers Rehabilitation and Compensation Act 1992 .… 12.7 s 3 .… 12.8, 12.9 s 9(2)(e) .… 12.9 s 10 .… 12.8 s 26(2) .… 12.9 s 54 .… 12.11, 16.6 s 55 .… 12.11, 16.6 s 59 .… 12.11, 20.20 Service and Execution of Process Act 1992 s 15 .… 28.40 Social Security Act 1991 .… 12.2 s 4(2) .… 12.5 s 23(5A)-(5D) .… 12.3 s 94(1) .… 12.3 s 94(1)-(2) .… 12.3 s 95(1) .… 12.3 s 315 .… 12.5 s 666 .… 12.4 s 1064 .… 12.3 s 1065 .… 12.3 s 1066 .… 12.5 s 1068 .… 12.4

s 1338 .… 19.33 Pt 3.14 .… 11.23, 12.6 Pt 3.16 .… 12.3, 12.4 Social Services Consolidation Act 1947 .… 12.2 Statute Law (Miscellaneous Provisions) Act (No 2) 1984 Sch 4 .… 17.15 Student Assistance Act 1973 s 34 .… 19.33 Superannuation Contribution (Guarantee) Administration Act 1992 .… 26.6 Telecommunications Act 1997 Sch 3 .… 6.49, 6.50 Trade Marks Act 1995 .… 22.1 Trade Practices Act 1974 .… 22.15, 22.30, 23.12 s 45(2) .… 21.54 s 51A .… 22.33 s 52 .… 17.6, 17.15, 18.7, 20.3, 22.2, 22.9, 22.13, 22.21, 22.27, 22.28, 22.31, 22.32, 22.33, 22.34, 22.36, 22.39, 22.40, 22.53, 23.3, 23.7, 23.11, 23.34 s 52(1) .… 22.1 s 53 .… 22.33, s 53A .… 22.32, 22.33 s 59 .… 22.33 s 65A .… 17.15 s 68B .… 10.27 s 75B .… 22.53 s 82 .… 22.48, 23.34 s 82(1) .… 22.46, 22.53 s 82(1B) .… 23.36 s 87 .… 22.53 s 87B .… 21.54 Sch 2 .… 22.2 Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 .… 22.2 Whale Protection Act 1980 s 25(1) .… 6.49 Work Health and Safety Act 2011 .… 16.6 Workplace Relations Act 1996 s 298K .… 21.54 Australian Capital Territory Age of Majority Act 1974 s 5 .… 29.17 Associations Incorporation Act 1991 .… 29.11 Building Act 2004 s 68 .… 13.75 s 88(2) .… 13.70 s 141 .… 29.42 s 142 .… 28.5 Choice of Law (Limitation Periods) Act 1993 s 5 .… 28.41 s 6 .… 28.41 Civil Law (Property) Act 2006

s 204 .… 23.38 Civil Law (Wrongs) Act 2002 s 15(1) .… 28.42 s 15(2) .… 11.53 s 16(2) .… 11.54, 27.12 s 16(3)(a) .… 11.55 s 16(3)(b)(i) .… 11.56 s 17 .… 11.60 s 19 .… 29.32 s 20(2)(a) .… 29.30 s 21(1) .… 29.33 s 21(2) .… 29.36 s 24 .… 11.33 s 25(1) .… 11.34 s 25(4)(a) .… 11.58 s 26(a)-(c) .… 11.51 s 26(d) .… 11.51 s 26(e) .… 11.51 s 26(3) .… 11.44 s 27 .… 11.39 s 28(3) .… 11.34 s 34(1) .… 7.45 s 34(2)(a) .… 7.47 s 34(2)(b) .… 7.48 s 34(2)(c) .… 7.49 s 34(2)(d) .… 7.50 s 34(4) .… 7.45 s 35(1) .… 7.42 s 36 .… 7.49 s 45 .… 9.1 s 46 .… 9.1 s 94 .… 6.59 s 95(1) .… 10.12 s 96(1) .… 10.12, 10.28 s 96(5) .… 10.28 s 97(1) .… 10.8 s 97(5) .… 10.8 s 98 .… 11.12 s 99 .… 11.28 s 100 .… 11.19 s 102 .… 10.15 s 102(2) .… 16.37 s 104 .… 20.21, 24.12 s 106 .… 11.4 s 107B(2) .… 29.42 s 107D .… 29.42 s 107F(1) .… 29.42 s 107F(2)(a) .… 29.42 s 107F(2)(b) .… 29.42 s 107H .… 29.42

s 110 .… 7.31 s 113 .… 7.36 s 115(a) .… 17.13 s 116 .… 19.33 s 118 .… 17.2, 17.13 s 119 .… 17.2 s 121 .… 18.13 s 122 .… 17.14, 18.12 s 123 .… 19.73 s 123(3) .… 19.73 s 126(1) .… 19.70 s 127(1) .… 19.70 s 127(2) .… 19.70 s 129(1) .… 19.70 s 130 .… 19.70 s 134 .… 19.35, 19.71 s 135 .… 19.2 s 136 .… 19.12 s 137(1) .… 19.31 s 137(2) .… 6.53, 19.32 s 137(2)(a)(i) .… 19.32 s 137(2)(a)(ii) .… 19.32 s 137(2)(a)(iii) .… 19.32 s 137(2)(a)(iv) .… 19.32 s 137(2)(b)(i) .… 19.34 s 137(2)(b)(ii) .… 19.34 s 137(2)(b)(iii) .… 19.34 s 138 .… 19.42 s 138(3) .… 19.42 s 138A .… 19.39 s 139(1) .… 19.40, 19.41 s 139(2) .… 19.41 s 139(4)(a) .… 19.40 s 139(4)(e) .… 19.41 s 139(4)(f) .… 19.41 s 139(4)(g)-(j) .… 19.41 s 139(4)(k) .… 19.41 s 139(4)(m) .… 19.41 s 139(4)(n) .… 19.41 s 139A .… 19.58 s 139A(4) .… 19.61 s 139B .… 19.13 s 139B(4)(a) .… 19.25 s 139B(4)(b) .… 19.28 s 139B(4)(c) .… 19.29 s 139B(5) .… 19.21 s 139B(5)(b) .… 19.23 s 139B(6) .… 19.22 s 139C(1)(c) .… 18.26 s 139C(3)(a) .… 18.26

s 139C(3)(b) .… 18.26 s 139C(3)(c) .… 18.26 s 139C(3)(d) .… 18.26 s 139C(3)(e) .… 18.26 s 139C(3)(f) .… 18.26 s 139C(3)(g) .… 18.26 s 139C(3)(h) .… 18.25 s 139D .… 19.72 s 139E .… 19.76 s 139F .… 19.76 s 139F(2) .… 19.81, 27.7 s 139G .… 19.81 s 139H .… 19.82, 27.11 s 139I(1)(a) .… 19.78 s 139I(1)(b) .… 19.78 s 139I(1)(c) .… 19.79 s 139I(1)(d) .… 19.79 s 139I(1)(e) .… 19.79 s 139I(2) .… 19.77 s 139M .… 19.4 s 170 .… 14.48 s 170(3) .… 14.48 s 174(3)(b) .… 23.35 s 210 .… 24.9 ss 212-215 .… 15.1 s 213 .… 6.28 s 214 .… 7.62 s 218 .… 24.3 s 221 .… 25.33 Ch 7A .… 29.42 Ch 9 .… 17.5, 17.10 Pt 2.2 .… 7.61 Pt 2.4 .… 11.53 Pt 2.5 .… 29.31 Pt 3.1 .… 11.33 Pt 9.3 Div 9.3.1 .… 19.70 Sch 4 .… 13.43 Court Procedures Act 2004 .… 29.1 s 20 .… 29.2 s 21 .… 26.57, 29.3 Court Procedures Rules 2006 r 1616 .… 27.28 r 1616(2)(b) .… 27.31 r 1616(2)(c) .… 27.32 r 1616(6)(a) .… 27.32 Crimes Act 1900 s 9 .… 6.37, 29.23 s 402 .… 25.6 Crimes (Amendment) Act 1983 .… 29.23 Criminal Injuries Compensation Act 1983 .… 3.13

Defamation Act 2001 .… 17.10 s 15 .… 19.72 Domestic Animals Act 2000 s 55 .… 15.19 s 55(1) .… 15.21 s 55(2) .… 15.20 s 55(4)(a) .… 15.25 s 55(4)(b) .… 15.23 s 55(4)(c) .… 15.24 Education Act 2004 s 7(4) .… 6.32 Fair Trading Act 1992 s 12(1) .… 22.1 Fair Trading (Australian Consumer Law) Act 1992 s 7 .… 22.2 Pt 2 Div 2.4 .… 22.6 Legislation Act 2001 s 121 .… 27.48 Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 Sch 1 Pt 1.5 .… 11.34 Limitation Act 1985 .… 28.2 s 8(1) .… 28.4 s 8(3)(a) .… 28.31 s 8(3)(b) .… 28.31 s 8(3)(b)(i) .… 28.31 s 8(3)(b)(ii) .… 28.31 s 8(3)(b)(iii) .… 28.31 s 11(1) .… 4.42, 28.3 s 16(b) .… 28.36 s 16B(1) .… 28.13 s 16B(2)(a) .… 28.13 s 16B(2)(b) .… 2.24, 28.4 s 18 .… 4.42, 4.62, 28.9 s 21(1) .… 28.34 s 21(2) .… 28.34 s 21B .… 19.74, 28.6 s 30 .… 28.32 s 30(1)(f) .… 28.32 s 30A .… 28.32 s 30B .… 28.32 s 33 .… 28.33 s 33(1) .… 4.42 s 35 .… 28.24 s 36 .… 28.24 s 36(3)(a)-(f) .… 28.25 s 39 .… 28.39 s 40 .… 28.24 s 40(2)(a)-(e) .… 28.25 ss 43-45 .… 4.42 s 56 .… 28.41

s 57 .… 28.41 Magistrate’s Court Act 1930 s 47 .… 6.36 Pt 2.3 .… 6.52 Married Person’s Property Act 1986 s 3(1) .… 29.15 Mercantile Law Act 1962 s 16 .… 23.38 Partnership Act 1963 s 14 .… 29.14 s 16 .… 29.14 Road Transport (Third Party Insurance) Act 2008 Ch 2 .… 26.18 Spent Convictions Act 2000 .… 19.8 Supreme Court Act 1933 s 22 .… 25.9 s 26 .… 14.6 s 50 .… 6.47 Transplantation and Anatomy Act 1978 .… 4.16 Victims of Crime (Financial Assistance) Act 1983 s 2 .… 12.15 s 8 .… 12.13 s 9(b) .… 12.14 s 10 .… 12.12 s 12(1)(c) .… 12.18 s 14 .… 12.16 s 17 .… 12.17 s 21 .… 12.15 s 29 .… 12.13 s 31 .… 12.18 s 35 .… 12.19 s 37 .… 12.18 s 53 .… 12.19 s 54 .… 12.19 Work Health and Safety Act 2011 .… 16.6 Work Safety Act 2008 s 225(a) .… 16.6 Workers’ Compensation Act 1951 .… 12.7 s 4 .… 12.8 s 31(1) .… 12.9 s 36 .… 12.9 s 82(2) .… 12.9 s 183 .… 12.11, 20.20 s 184 .… 11.24, 11.48, 12.11 New South Wales Animals Act 1977 .… 15.1, 15.18 s 5 .… 6.28 s 7(2)(b) .… 7.62 Associations Incorporation Act 2009 .… 29.11

Children (Equality of Status) Act 1976 .… 11.34 Civil Aviation (Carriers’ Liability) Act 1967 .… 28.7 Civil Liability Act 2002 .… 17.4, 27.3 s 3A(2) .… 29.42 s 3B(1)(f) .… 7.49 s 5B .… 8.4 s 5C .… 8.4 s 5D .… 9.1 s 5D(1) .… 9.5, 9.6 s 5D(1)(a) .… 9.6 s 5D(2) .… 9.6 s 5L .… 8.10 s 5N .… 10.27 s 5O .… 8.27, 8.35 s 5P .… 8.35 s 5R(1) .… 10.9 s 5S .… 10.18 s 5T(2) .… 11.39 s 12 .… 11.12, 20.17 s 13 .… 11.8 s 14 .… 11.26, 11.43 s 15 .… 11.17 s 15B .… 11.19 s 15C .… 11.8 s 16 .… 11.31 s 17 .… 11.31 s 17A .… 11.28 s 18 .… 11.7 s 18(1) .… 11.15, 27.30 s 21 .… 27.9, 27.11 s 26C .… 3.14 s 26K(1) .… 29.23 s 30 .… 7.48 s 30(2) .… 7.48, 7.49 s 30(3) .… 7.53 s 30(4) .… 7.54 s 31 .… 7.42 s 32(1) .… 7.45 s 32(2)(a) .… 7.47 s 32(2)(b) .… 7.48 s 32(2)(c) .… 7.49 s 32(2)(d) .… 7.50 s 32(4) .… 7.45 s 34(1) .… 29.42 s 34(2) .… 29.42 s 35(1) .… 29.42 s 36 .… 29.42 s 36(3)(a) .… 29.42 s 36(3)(b) .… 29.42 s 42 .… 7.31

s 45 .… 7.36 s 50(3) .… 10.12 s 54 .… 6.59 s 54A .… 6.59 s 72 .… 5.9 s 73 .… 5.9 Pt 1A Div 4 .… 10.20 Pt 1A Div 5 .… 10.27 Pt 2 .… 20.17 Pt 2, Div 7 .… 11.4 Pt 2A .… 29.23 Pt 2A, Div 6 .… 29.23 Pt 3 .… 7.44 Pt 4 .… 29.42 Pt 9 .… 7.61 Pt 11 .… 7.58 Sch 2 cl 2 .… 25.33 Civil Liability Amendment (Personal Responsibility) Act 2002 .… 16.37 Civil Liability (Carriers’ Liability) Act 1967 s 5 .… 12.40 Civil Procedure Act 2005 s 100 .… 27.28 s 100(3)(a) .… 27.32 Companion Animals Act 1998 s 7(1) .… 15.20 ss 25-28 .… 15.19 s 25(1) .… 15.20, 15.21 s 25(2)(a) .… 15.22, 15.25 s 25(2)(b) .… 15.22 s 26 .… 11.35, 15.21 s 28 .… 15.23 Compensation to Relatives Act 1897 s 3(1) .… 11.33 s 3(2) .… 11.58 s 3(3) .… 11.51 s 4(1) .… 11.34, 11.44 s 6B .… 11.34 Conveyancing Act 1919 s 177 .… 14.18 Crimes Act 1900 s 352 .… 6.36 Crimes (Sentencing Procedures) Act 1999 s 10 .… 25.6 Criminal Records Act 1991 .… 19.8 Crown Proceedings Act 1988 .… 29.1 s 3 .… 29.2 s 5 .… 26.57, 27.48, 29.3 Defamation Act 1847 (11 Vic No 13) s 1 .… 17.8 Defamation Act 1856 (19 Vic No 4) .… 17.8

Defamation Act 1974 .… 17.10 s 13 .… 19.72 s 16 .… 19.12 s 20(1) .… 19.58 s 22 .… 19.58, 19.59, 19.60, 19.65 s 22(2A) .… 19.61 Defamation Act 2005 .… 17.5 s 3(a) .… 17.13 s 4 .… 19.33 s 6 .… 17.2, 17.13 s 7 .… 17.2 s 9 .… 18.13 s 10 .… 17.14, 18.12 s 11 .… 19.73 s 11(3) .… 19.73 s 14(1) .… 19.70 s 15(1) .… 19.70 s 15(2) .… 19.70 s 17(1) .… 19.70 s 18 .… 19.70 s 22(3) .… 19.76 s 24 .… 19.35, 19.71 s 25 .… 19.2 s 26 .… 19.12 s 27(1) .… 19.31 s 27(2) .… 6.53, 19.32 s 27(2)(a)(i) .… 19.32 s 27(2)(a)(ii) .… 19.32 s 27(2)(a)(iii) .… 19.32 s 27(2)(a)(iv) .… 19.32 s 27(2)(b)(i) .… 19.34 s 27(2)(b)(ii) .… 19.34 s 27(2)(b)(iii) .… 19.34 s 28 .… 19.42 s 28(3) .… 19.42 s 29(1) .… 19.40, 19.41 s 29(2) .… 19.41 s 29(4)(a) .… 19.40 s 29(4)(e) .… 19.41 s 29(4)(f) .… 19.41 s 29(4)(g)-(j) .… 19.41 s 29(4)(k) .… 19.41 s 29(4)(m) .… 19.41 s 29(4)(n) .… 19.41 s 30 .… 19.39, 19.58 s 30(1) .… 19.58 s 30(4) .… 19.61 s 31 .… 19.13 s 31(4)(a) .… 19.25 s 31(4)(b) .… 19.28

s 31(4)(c) .… 19.29 s 31(5) .… 19.21 s 31(5)(b) .… 19.23 s 31(6) .… 19.22 s 32 .… 18.23 s 32(1)(c) .… 18.26 s 32(3)(a) .… 18.26 s 32(3)(b) .… 18.26 s 32(3)(c) .… 18.26 s 32(3)(d) .… 18.26 s 32(3)(e) .… 18.26 s 32(3)(f) .… 18.26 s 32(3)(g) .… 18.26 s 32(3)(h) .… 18.25 s 33 .… 19.72 s 34 .… 19.76 s 35 .… 19.76 s 35(2) .… 19.81, 27.7 s 36 .… 19.81 s 37 .… 19.82, 27.11 s 38(1)(a) .… 19.78 s 38(1)(b) .… 19.78 s 38(1)(c) .… 19.79 s 38(1)(d) .… 19.79 s 38(1)(e) .… 19.79 s 38(2) .… 19.77 s 42 .… 19.4 Pt 3, Div 1 .… 19.70 Sch 1 .… 19.33 Education Reform Act 1988 s 47(f) .… 6.32 Employees Liability Act 1991 .… 29.40 s 4 .… 20.10 Environmental Planning and Assessment Act 1979 s 109ZJ .… 29.42 s 109ZK .… 28.5 Factories, Shops and Industries Act 1962 s 6A .… 16.12, 29.5 Factors (Mercantile Agents) Act 1923 s 5(1) .… 4.25 Fair Trading Act 1987 s 28 .… 22.2 s 42(1) .… 22.1 s 74(4) .… 11.35 Pt 3 Div 4 .… 22.6 Felons (Civil Proceedings) Act 1981 s 4 .… 29.23 Freedom of Information Act 1989 s 64(1)(b) .… 19.56 Government Railways Act 1912 .… 4.59

Guardianship Act 1987 .… 6.9 Home Building Act 1989 s 18B .… 13.70 s 18D .… 13.70 Human Tissue Act 1983 .… 4.16 Imperial Acts Application Act 1969 .… 14.48 s 6 .… 6.53, 19.32 s 8 .… 23.38 Industrial Relations Act 1996 .… 18.13 Judicial Officers Act 1986 s 48(2) .… 19.33 Law Reform (Marital Consortium) Act 1984 s 3 .… 24.3 Law Reform (Miscellaneous Provisions) Act 1944 s 2(1) .… 11.53, 28.42 s 2(2)(a)(i) .… 11.54, 27.12 s 2(2)(c) .… 11.55 s 2(2)(d) .… 11.56 s 2(4) .… 11.60 Pt 2 .… 11.53 Law Reform (Miscellaneous Provisions) Act 1946 s 5(1)(b) .… 29.30 s 5(1)(c) .… 29.33 s 5(2) .… 29.36 Pt 3 .… 29.31 Law Reform (Miscellaneous Provisions) Act 1965 s 7 .… 16.37 s 9(1) .… 10.15 s 13(2) .… 11.39 Law Reform (Vicarious Liability) Act 1983 Pt 4 .… 26.59 s 7 .… 16.18, 26.57 s 8 .… 26.57 Legal Profession Act 1987 s 186 .… 25.37 Limitation Act 1969 s 11(1) .… 28.4 s 11(3)(a) .… 28.31 s 11(3)(b) .… 28.31 s 11(3)(b)(ii) .… 28.31 s 11(3)(b)(iii) .… 28.31 s 13(3)(b)(iv) .… 28.31 s 14(1)(b) .… 4.42, 28.3 s 14B .… 19.74, 28.6 s 18A .… 2.24, 28.4 s 19(b) .… 28.36 s 21 .… 4.42, 4.62, 28.9 s 26(1) .… 28.34 s 26(2) .… 28.34 s 27(2) .… 5.14

s 27J(1) .… 28.32 s 50A(3) .… 28.4 s 50C .… 28.4, 28.13 s 50C(3) .… 28.36 s 50D .… 28.13, 28.24 s 50E .… 28.14 s 51(1) .… 28.24 s 51(2) .… 28.24 s 52 .… 28.32 s 55 .… 4.42, 28.33 s 56A .… 19.74 s 60C .… 28.24, 28.34 s 60D .… 28.38, 28.39 s 60E .… 28.39 s 60E(1)(a)-(h) .… 28.25 s 60F .… 28.24 s 60G .… 28.24, 28.34 s 60H .… 28.38, 28.39 s 60I .… 28.24, 28.39 s 62A .… 28.24 s 62B .… 28.25 s 62C .… 28.38 s 63(1) .… 4.42, 28.2, 28.40 Liquor Act 1982 .… 7.30 Local Government Act 1919 s 317A .… 13.74 Married Persons (Equality of Status) Act 1996 s 5 .… 29.15 Minors (Property and Contracts) Act 1970 s 9 .… 29.17 s 48 .… 29.19 s 49(2) .… 6.9 Motor Accidents Compensation Act 1999 s 7(A) .… 10.17 s 125 .… 11.12, 11.43 s 127 .… 11.26, 11.43 s 128 .… 11.17 ss 131-134 .… 11.31 s 137 .… 11.7, 11.15 s 137(2) .… 27.30 s 137(3) .… 27.30 s 138(2)(b)(ii) .… 10.12 s 138(2)(c) .… 10.8 s 138(2)(d) .… 10.8 s 138(3) .… 10.8 s 140 .… 10.24, 10.28 s 142 .… 20.10 s 143 .… 11.4 s 144 .… 27.11 Ch 2 .… 26.18

Motor Accidents (Lifetime Care and Support) Act 2006 s 4(2) .… 12.38 s 4(4) .… 12.38 s 5A .… 12.38 s 7(1) .… 12.38 s 11A .… 12.38 s 7(4) .… 12.39 s 54(1) .… 12.39 s 54(2) .… 12.39 s 54(3) .… 12.39 Occupational Health and Safety Act 2000 s 32(1)(a) .… 16.6 s 32(2) .… 16.6 Parliamentary Evidence Act 1901 s 12 .… 6.53 Partnership Act 1892 s 10 .… 29.14 s 12 .… 29.14 Professional Standards Act 1994 .… 13.43 Property (Relationships) Legislation Amendment Act 1999 Sch 2 Pt 2.3 .… 11.34 Pure Foods Act 1908 .… 4.23 Residential Tenancies Act 1987 s 72 .… 6.25 Sale of Goods Act 1923 s 26(1) .… 4.25 s 28(1) .… 4.25 s 28(2) .… 4.25 Statutory Duties (Contributory Negligence) Act 1945 .… 16.36, 16.37 Supreme Court Act 1970 s 68 .… 14.6 Trees (Disputes Between Neighbours) Act 2006 .… 14.13 s 5 .… 14.41 Uniform Civil Procedure Rules 2005 Pt 39 Div 3 .… 4.60 Usury, Bills of Lading and Written Memoranda (Amendment) Act 1989 .… 23.38 Victims Support and Rehabilitation Act 1996 s 5 .… 12.13 s 7 .… 12.14 s 8 .… 12.15 s 10 .… 12.15 ss 14-16 .… 12.12 s 16 .… 12.17 s 18(2) .… 12.15 s 19 .… 12.16 s 30(1)(a) .… 12.18 s 30(1)(b) .… 12.18 s 30(3) .… 12.19 Pt 2 Div 8 .… 12.19 Sch 1 .… 12.15

Work Health and Safety Act 2011 .… 16.6 Workers’ Compensation Act 1987 .… 12.7 s 4 .… 12.8, 12.9 s 10 .… 12.9 s 14(3) .… 12.9 s 149(1)(c) .… 11.24, 11.48, 12.11 ss 151E-151T .… 12.11 s 151G .… 11.31 s 151H .… 11.12 s 151I .… 11.12, 11.43 s 151J .… 11.26, 11.43 s 151K .… 11.17 s 151M .… 11.7 s 151N(5) .… 11.39 s 151Q .… 11.4 s 151R .… 27.11 s 151Z .… 12.11, 20.20 s 151Z(2) .… 29.41 Workers Compensation (Dust Diseases) Act 1942 .… 11.24 Northern Territory Age of Majority Act 1974 s 4 .… 28.31, 29.17 s 4(1) .… 28.31 Associations Incorporation Act 2003 .… 29.11 Building Act 1993 s 72 .… 13.75 s 155 .… 29.42 s 160 .… 28.5 Choice of Law (Limitation Periods) Act 1994 s 5 .… 28.41 s 6 .… 28.41 Compensation (Fatal Injuries) Act 1974 s 7(1) .… 11.33 s 7(2) .… 11.39 s 8(2) .… 11.34 s 10(2) .… 11.44 s 10(3)(a) .… 11.58 s 10(3)(c) .… 11.40, 24.4 s 10(3)(f) .… 11.42 s 10(4) .… 11.51 s 10(4)(d) .… 11.51 s 10(4)(e) .… 11.51 s 10(4)(g) .… 11.51 s 10(4)(h) .… 11.52 s 10(5) .… 11.39 s 11 .… 11.39 s 13 .… 11.34 Consumer Affairs and Fair Trading Act 1990 s 27 .… 22.2

s 42(1) .… 22.1 s 91(2) .… 22.51 Pt 4 Div 4 .… 22.6 Criminal Code s 3 .… 6.37 s 154 .… 14.54 s 435A .… 29.23 Criminal Records (Spent Convictions) Act 1992 .… 19.8 Crown Proceedings Act 1993 .… 29.1 s 4(1) .… 29.2 s 5 .… 26.57, 27.48 s 5(1) .… 29.3 Defamation Act 2006 .… 17.5 s 3 .… 19.33 s 3(a) .… 17.13 s 5 .… 17.2, 17.13 s 6 .… 17.2 s 8 .… 18.13 s 9 .… 17.14, 18.12 s 10 .… 19.73 s 10(3) .… 19.73 s 13(1) .… 19.70 s 14(1) .… 19.70 s 14(2) .… 19.70 s 16(1) .… 19.70 s 17 .… 19.70 s 21 .… 19.35, 19.71 s 22 .… 19.2 s 23 .… 19.12 s 24(1) .… 19.31 s 24(2) .… 6.53, 19.32 s 24(2)(a)(i) .… 19.32 s 24(2)(a)(ii) .… 19.32 s 24(2)(a)(iii) .… 19.32 s 24(2)(a)(iv) .… 19.32 s 24(2)(b)(i) .… 19.34 s 24(2)(b)(ii) .… 19.34 s 24(2)(b)(iii) .… 19.34 s 25 .… 19.42 s 25(3) .… 19.42 s 26(1) .… 19.40, 19.41 s 26(2) .… 19.41 s 26(4)(a) .… 19.40 s 26(4)(e) .… 19.41 s 26(4)(f) .… 19.41 s 26(4)(g)-(j) .… 19.41 s 26(4)(k) .… 19.41 s 26(4)(m) .… 19.41 s 26(4)(n) .… 19.41 s 27 .… 19.39, 19.58

s 27(4) .… 19.61 s 28 .… 19.13 s 28(4)(a) .… 19.25 s 28(4)(b) .… 19.28 s 28(4)(c) .… 19.29 s 28(5) .… 19.21 s 28(5)(b) .… 19.23 s 28(6) .… 19.22 s 29 .… 18.23 s 29(1)(c) .… 18.26 s 29(3)(a) .… 18.26 s 29(3)(b) .… 18.26 s 29(3)(c) .… 18.26 s 29(3)(d) .… 18.26 s 29(3)(e) .… 18.26 s 29(3)(f) .… 18.26 s 29(3)(g) .… 18.26 s 29(3)(h) .… 18.25 s 30 .… 19.72 s 31 .… 19.76 s 32 .… 19.76 s 32(2) .… 19.81, 27.7 s 33 .… 19.81 s 34 .… 19.82, 27.11 s 35(1)(a) .… 19.78 s 35(1)(b) .… 19.78 s 35(1)(c) .… 19.79 s 35(1)(d) .… 19.79 s 35(1)(e) .… 19.79 s 35(2) .… 19.77 s 39 .… 19.4 Pt 3, Div 1 .… 19.70 Human Tissue Transplant Act 1979 .… 4.16 Juries Act 1962 s 7(1) .… 25.9 Justices Act 1928 s 20 .… 6.36 Justices of the Peace Act 1991 s 10 .… 6.52 Law of Property Act 2000 s 56 .… 1.2, 10.23 s 125 .… 6.29 Sch 4 .… 14.48 Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 Sch 1 .… 11.34 Law Reform (Miscellaneous Provisions) Act 1956 s 5 .… 28.42 s 5(2) .… 11.53 s 6(1)(a) .… 11.54, 27.12 s 6(1)(c)(i) .… 11.55

s 6(1)(c)(ii) .… 11.56 s 7(1)(b) .… 28.42 s 8 .… 11.60 s 12(3)(a) .… 29.30 s 12(4) .… 29.33 s 13 .… 29.36 s 15(2) .… 10.14 s 16(1) .… 10.15 s 18 .… 20.21, 24.4, 24.12 s 22A .… 29.40 ss 23-25 .… 7.49 s 32 .… 15.19 Pt II .… 11.53 Pt IV .… 29.31 Legislative Assembly (Powers and Privileges) Act 1992 s 4 .… 19.32 s 6 .… 19.32 Limitation Act 1981 .… 28.2 s 11(1)(b) .… 28.3 s 12(1) .… 2.24 s 12(1)(b) .… 4.42 s 12(2)(b) .… 19.74, 28.6 s 17 .… 28.36 s 19 .… 4.62 s 19(1) .… 4.42, 28.9 s 19(2) .… 4.42 s 24(1) .… 28.34 s 24(2) .… 28.34 s 36 .… 28.32 s 36(1)(e) .… 28.32 s 42 .… 28.33 s 42(1) .… 4.42 s 44 .… 28.23, 28.38, 28.42 s 44(3)(b) .… 28.23, 28.39 s 44(3)(b)(i) .… 28.23, 28.38 s 44(3)(b)(ii) .… 28.23, 28.38 s 44A .… 19.74, 28.6 Married Persons (Equality of Status) Act 1989 s 3(1) .… 29.15 Motor Accidents (Compensation) Act 1979 .… 26.18 s 5 .… 2.19, 12.34, 20.10, 24.3, 24.11 s 7 .… 12.34 s 9(1) .… 12.37 s 9(2) .… 12.37 s 9(3) .… 12.37 s 9(6) .… 12.37 s 10(2) .… 12.37 s 13 .… 12.35 s 14 .… 12.35 s 17 .… 12.35

s 17(3) .… 12.35 s 18 .… 12.35 s 18A .… 12.35 s 18B .… 12.35 s 19 .… 12.35 s 22(1) .… 12.36 s 22(1)(a) .… 12.36 s 23 .… 12.36 s 24 .… 12.36 Partnership Act 1997 s 14 .… 29.14 s 16 .… 29.14 Personal Injuries (Liabilities and Damages) Act 2003 s 7 .… 7.61 s 10 .… 6.59 s 19 .… 27.9, 27.11 s 20 .… 11.12 s 22 .… 11.26 s 23 .… 11.17 s 29(a) .… 27.30 s 29(b) .… 27.30 Pt 4 Div 4 .… 11.28 Pt 4 Div 6 .… 11.4 Police Administration Act 1978 Pt VIIA .… 26.59 s 137(1) .… 6.43 s 137(2) .… 6.43, 6.45 Professional Standards Act 2004 .… 13.43 Proportionate Liability Act 2005 s 4(2) .… 29.42 s 6(1) .… 29.42 s 13(1) .… 29.42 s 13(2)(a) .… 29.42 s 13(2)(b) .… 29.42 s 15 .… 29.42 Sentencing Act 1995 s 8 .… 25.6 Supreme Court Act 1979 s 62 .… 14.6 s 84 .… 27.28 s 84(2)(a) .… 27.32 Victims of Crimes Assistance Act 2006 s 5(2) .… 12.13 s 6 .… 12.15 s 9(2) .… 12.14 s 10 .… 12.12 s 10(5)(b) .… 12.15 s 11 .… 12.15 s 12 .… 12.12 s 14 .… 12.12, 12.17

s 17 .… 12.19 s 18 .… 12.19 ss 38-40 .… 12.16 s 41(1)(a) .… 12.18 s 41(1)(B) .… 12.18 s 43(b) .… 12.18 s 43(c) .… 12.18 s 43(d) .… 12.18 Pt 5 .… 12.19 Work Health and Safety (National Uniform Legislation) Act 2011 .… 16.6 Workers Rehabilitation and Compensation Act 1986 .… 12.7 s 3(1) .… 12.8, 12.9 s 4(1) .… 12.9 s 52 .… 11.4, 12.11, 16.6, 20.10, 24.3, 24.11 s 54 .… 12.11 s 57(a) .… 12.9 Workplace Health and Safety Act 2007 s 63 .… 16.6 Queensland Age of Majority Act 1974 s 5 .… 28.31 s 5(2) .… 28.31 s 5(3) .… 28.31 Associations Incorporation Act 1981 .… 29.11 Choice of Law (Limitation Periods) Act 1996 s 5 .… 28.41 s 6 .… 28.41 Civil Aviation (Carriers’ Liability) Act 1964 .… 28.7 Civil Liability Act 2003 s 7(3) .… 29.42 s 9 .… 8.4 s 10 .… 8.4 s 11 .… 9.1 s 12 .… 9.1 s 19 .… 8.10, 10.27 s 21 .… 8.35 s 22 .… 8.27, 8.35 s 22(5) .… 8.35 s 28(1) .… 29.42 s 30(1) .… 29.42 s 31(1) .… 29.42 s 31(3) .… 29.42 s 32A .… 29.42 s 32G .… 29.42 s 35 .… 7.31 s 37 .… 7.36 s 45 .… 6.59 s 52 .… 27.9, 27.11 s 54 .… 11.12

s 58 .… 20.10, 24.3 s 58(1)(a) .… 20.11 s 59 .… 11.17 s 59A .… 11.19 s 60 .… 27.23 s 60(1)(a) .… 27.30 s 60(1)(b) .… 27.30 s 61 .… 11.31 s 61(1)(c)(ii) .… 11.28 s 62 .… 11.31 Ch 2 Pt 2 .… 29.42 Ch 2 Pt 5 .… 7.58 Ch 3 Pt 4 .… 11.4 Pt 1 Div 3 .… 10.20 Pt 3 Div 2 .… 7.61 Civil Liability (Carriers’ Liability) Act 1964 s 5 .… 12.40 Civil Liability Regulation 2003 reg 5A .… 20.10 Civil Proceedings Act 2011 s 58 .… 27.28 s 58(4)(a) .… 27.32 s 61 .… 11.26 s 64 .… 11.33 s 64(3) .… 11.44 s 65 .… 11.34 s 65(2) .… 11.34 s 67 .… 11.52 s 70 .… 11.51 s 70(e) .… 11.51 Pt 10 .… 11.33 Common Law Practice Act Amendment Act 1972 .… 11.55 Corrective Services Act 2006 s 319S(1) .… 29.23 Ch 6 Pt 12B Div 6 .… 29.23 Criminal Code .… 1.5, 6.11, 6.32 s 254 .… 6.40 s 255(2) .… 6.42 s 257(2) .… 6.41 s 267 .… 6.18 s 273 .… 6.17 ss 274-279 .… 6.18 s 274 .… 6.18 s 280 .… 6.31 s 281 .… 6.34 s 300 .… 14.54 s 312 .… 6.42 s 348(2)(f) .… 6.7 s 552 .… 6.43, 6.45 Pt 4 .… 6.37

Ch 35 .… 17.9 Criminal Code 1995 .… 17.9 Criminal Law (Rehabilitation of Offenders) Act 1986 .… 19.8 Crown Proceedings Act 1980 .… 29.1 s 7 .… 29.2 s 8 .… 26.57, 27.48 s 9(2) .… 29.3 Defamation Act 1889 s 9 .… 17.9 s 16 .… 19.36 s 20 .… 19.72 Defamation Act 2005 .… 17.5 s 3(a) .… 17.13 s 6 .… 17.2, 17.13 s 7 .… 17.2 s 9 .… 18.13 s 10 .… 17.14, 18.12 s 11 .… 19.73 s 11(3) .… 19.73 s 14(1) .… 19.70 s 15(1) .… 19.70 s 15(2) .… 19.70 s 17(1) .… 19.70 s 18 .… 19.70 s 22(3) .… 19.76 s 24 .… 19.35, 19.71 s 25 .… 19.2 s 26 .… 19.12 s 27(1) .… 19.31 s 27(2) .… 6.53, 19.32 s 27(2)(a)(i) .… 19.32 s 27(2)(a)(ii) .… 19.32 s 27(2)(a)(iii) .… 19.32 s 27(2)(a)(iv) .… 19.32 s 27(2)(b)(i) .… 19.34 s 27(2)(b)(ii) .… 19.34 s 27(2)(b)(iii) .… 19.34 s 28 .… 19.42 s 28(3) .… 19.42 s 29(1) .… 19.40, 19.41 s 29(2) .… 19.41 s 29(4)(a) .… 19.40 s 29(4)(e) .… 19.41 s 29(4)(f) .… 19.41 s 29(4)(g)-(j) .… 19.41 s 29(4)(k) .… 19.41 s 29(4)(m) .… 19.41 s 29(4)(n) .… 19.41 s 30 .… 19.39, 19.58 s 30(1) .… 19.58

s 30(4) .… 19.61 s 31 .… 19.13 s 31(4)(a) .… 19.25 s 31(4)(b) .… 19.28 s 31(4)(c) .… 19.29 s 31(5) .… 19.21 s 31(5)(b) .… 19.23 s 31(6) .… 19.22 s 32 .… 18.23 s 32(1)(c) .… 18.26 s 32(3)(a) .… 18.26 s 32(3)(b) .… 18.26 s 32(3)(c) .… 18.26 s 32(3)(d) .… 18.26 s 32(3)(e) .… 18.26 s 32(3)(f) .… 18.26 s 32(3)(g) .… 18.26 s 32(3)(h) .… 18.25 s 33 .… 19.72 s 34 .… 19.76 s 35 .… 19.76 s 35(2) .… 19.81, 27.7 s 36 .… 19.81 s 37 .… 19.82, 27.11 s 38(1)(a) .… 19.78 s 38(1)(b) .… 19.78 s 38(1)(c) .… 19.79 s 38(1)(d) .… 19.79 s 38(1)(e) .… 19.79 s 38(2) .… 19.77 s 42 .… 19.4 Pt 3, Div 1 .… 19.70 Sch 1 .… 19.33 Sch 5 .… 19.33 Domestic Building Contracts Act 2000 ss 49-51 .… 13.70 Fair Trading Act 1989 s 16 .… 22.2 s 38(1) .… 22.1 s 99(2) .… 22.51 Pt 3 Div 4 .… 22.6 Imperial Acts Application Act 1984 .… 14.48 Justices Act 1886 s 62 .… 6.36 Justices of the Peace and Commissioners for Declarations Act 1991 s 36 .… 6.52 Law Reform Act 1995 s 5 .… 29.32 s 6(b) .… 29.30 s 6(c) .… 29.33

s 7 .… 29.36 s 10 .… 10.15 s 10(5) .… 11.39 s 12 .… 29.15 s 13 .… 24.3 s 17 .… 29.17 Pt 3 .… 29.31 Limitation of Actions Act 1974 .… 28.2 s 5(1) .… 28.4 s 10(1) .… 28.3 s 10(1)(a) .… 4.42 s 10AA .… 19.74, 28.6 s 11 .… 2.24, 28.4, 28.36 s 12(1) .… 4.42, 4.62, 28.9 s 12(2) .… 4.42 s 13 .… 5.14 s 29(1) .… 28.32 s 29(2)(c) .… 28.32 s 31 .… 28.27, 28.39 s 32A .… 19.74, 28.6 s 38 .… 4.42, 28.33 s 40(1) .… 28.34 s 40(2) .… 28.34 Motor Accident Insurance Act 1994 Pt 3 .… 26.18 Nature Conservation Act 1992 .… 4.12 Neighbourhood Dispute Resolution Act 2011 Ch 3 Pt 5 .… 14.41, 14.53 Parliament of Queensland Act 2001 s 8 .… 19.32 Partnership Act 1891 s 13 .… 29.14 s 15 .… 29.14 Penalties and Sentences Act 1992 s 19 .… 25.6 Police Service Administration Act 1990 s 10.5 .… 26.59 Professional Standards Act 2004 .… 13.43 Property Law Act 1974 s 55 .… 1.2, 10.23 s 179 .… 14.18, 14.36 Public Trustee Act 1978 s 95 .… 29.23 Relationships Act 2011 .… 11.34 Residential Tenancies Act 1994 s 219 .… 6.25 Status of Children Act 1978 .… 11.34 Statute of Frauds 1972 .… 23.38 Succession Act 1981 s 66 .… 11.53

s 66(1) .… 11.53, 28.42 s 66(2)(b) .… 11.54, 27.12 s 66(2)(d)(i) .… 11.55 s 66(3) .… 11.60 Supreme Court Act 1995 s 15 .… 11.7, 11.8 Transplantation and Anatomy Act 1979 .… 4.16 Uniform Civil Procedure Rules 1999 r 916 .… 4.60 Victims of Crime Assistance Act 2009 s 3 .… 12.12 s 21(3) .… 12.18 s 25(2) .… 12.13 s 26 .… 12.15 s 27 .… 12.15 s 38 .… 12.19 s 38(1) .… 12.16 ss 47-49 .… 12.17 s 80 .… 12.18 WorkCover Queensland Act 1996 s 316 .… 24.3 WorkCover Queensland Amendment Act 2001 s 38 .… 24.3 Workers’ Compensation and Rehabilitation Act 2003 .… 12.7 s 32 .… 12.8 s 34 .… 12.9 s 35 .… 12.9 s 129 .… 12.9 s 207B .… 20.20 s 237 .… 12.11 s 270 .… 11.24, 11.48, 12.11 ss 306C-306H .… 11.17 Sch 2 Pt 2 .… 12.8 Work Health and Safety Act 2011 .… 16.6 Workplace Health and Safety Act 1995 s 28(1) .… 16.6 South Australia Age of Majority (Reduction) Act 1970 s 3 .… 28.31 Age of Majority (Reduction) Act 1971 s 3 .… 29.17 Associations Incorporation Act 1985 .… 29.11 Building Work Contractors Act 1995 s 32 .… 13.70 Civil Aviation (Carriers’ Liability) Act 1962 .… 28.7 Civil Liability Act 1936 s 7 .… 8.10 s 18 .… 7.62 s 20 .… 7.38

s 23 .… 11.33, 11.34 s 24(1) .… 11.34 s 24(2) .… 11.44 s 24(2a) .… 11.58 s 24(2aa) .… 11.51 s 24(2aa)(b) .… 11.51 s 25 .… 28.36, 28.39 ss 28-30 .… 11.42 s 31 .… 8.4 s 32 .… 8.4 s 33(1) .… 7.45 s 33(2)(a)(i) .… 7.47 s 33(2)(a)(ii) .… 7.48 s 33(2)(a)(iii) .… 7.49 s 33(2)(a)(iv) .… 7.50 s 33(3) .… 7.45 s 41 .… 8.27, 8.35 s 41(5) .… 8.35 s 42 .… 7.36 s 43 .… 6.59 s 47(1) .… 10.12, 10.28 s 47(6) .… 10.28 s 49(3) .… 10.8 s 52 .… 11.28, 11.31 s 53(1) .… 7.48 s 53(2) .… 7.42 s 54(1) .… 7.49 s 54(2) .… 11.12 s 55 .… 11.26 s 56 .… 27.30 s 57 .… 11.20 s 58 .… 11.17 s 61 .… 11.41 s 62 .… 5.9 s 65 .… 24.3 s 66 .… 20.15 s 67 .… 7.58 s 68 .… 24.9 Pt 3 .… 15.1 Pt 5 .… 11.33 Pt 6 Div 2 .… 10.20 Civil Liability (Carriers’ Liability) Act 1964 s 6 .… 12.40 Consent to Medical Treatment and Palliative Care Act 1995 s 13 .… 6.10 Constitution Act 1934 s 38 .… 19.32 Consumer Transactions Act 1972 s 27 .… 4.8 Criminal Law Consolidation Act 1935

s 5D .… 6.37 s 15(3) .… 6.17 s 15A .… 6.18 s 15A(1) .… 6.18 s 15A(2) .… 6.18 s 271 .… 6.38 s 329 .… 29.23 Criminal Law (Sentencing) Act 1988 s 15 .… 25.6 Crown Proceedings Act 1972 s 10(2) .… 26.57 Crown Proceedings Act 1992 .… 29.1 s 4(1) .… 29.2 s 5 .… 26.57, 27.48 s 5(1) .… 29.3 Defamation Act 2005 .… 17.5 s 3(a) .… 17.13 s 4 .… 19.33 s 6 .… 17.2, 17.13 s 7 .… 17.2 s 9 .… 18.13 s 10 .… 17.14, 18.12 s 11 .… 19.73 s 11(3) .… 19.73 s 14(1) .… 19.70 s 15(1) .… 19.70 s 15(2) .… 19.70 s 17(1) .… 19.70 s 18 .… 19.70 s 22 .… 19.35, 19.71 s 23 .… 19.2 s 24 .… 19.12 s 25(1) .… 19.31 s 25(2) .… 6.53, 19.32 s 25(2)(a)(i) .… 19.32 s 25(2)(a)(ii) .… 19.32 s 25(2)(a)(iii) .… 19.32 s 25(2)(a)(iv) .… 19.32 s 25(2)(b)(i) .… 19.34 s 25(2)(b)(ii) .… 19.34 s 25(2)(b)(iii) .… 19.34 s 26 .… 19.42 s 26(3) .… 19.42 s 27(1) .… 19.40, 19.41 s 27(2) .… 19.41 s 27(4)(a) .… 19.40, 19.41 s 27(4)(f) .… 19.41 s 27(4)(g)-(j) .… 19.41 s 27(4)(k) .… 19.41 s 27(4)(m) .… 19.41

s 27(4)(n) .… 19.41 s 28 .… 19.39, 19.58 s 28(4) .… 19.61 s 29 .… 19.13 s 29(4)(a) .… 19.25 s 29(4)(b) .… 19.28 s 29(4)(c) .… 19.29 s 29(5) .… 19.21 s 29(5)(b) .… 19.23 s 29(6) .… 19.22 s 30 .… 18.23 s 30(1)(c) .… 18.26 s 30(3)(a) .… 18.26 s 30(3)(b) .… 18.26 s 30(3)(c) .… 18.26 s 30(3)(d) .… 18.26 s 30(3)(e) .… 18.26 s 30(3)(f) .… 18.26 s 30(3)(g) .… 18.26 s 30(3)(h) .… 18.25 s 31 .… 19.72 s 32 .… 19.76 s 33 .… 19.76 s 33(2) .… 19.81, 27.7 s 34 .… 19.81 s 35 .… 19.82, 27.11 s 36(1)(a) .… 19.78 s 36(1)(b) .… 19.78 s 36(1)(c) .… 19.79 s 36(1)(d) .… 19.79 s 36(1)(e) .… 19.79 s 36(2) .… 19.77 s 42 .… 19.4 Pt 3, Div 1 .… 19.70 Sch 1 .… 19.33 Development Act 1993 s 67(7) .… 13.75 s 72 .… 29.42 s 73 .… 28.5 Dog and Cat Management Act 1995 s 66 .… 15.19 s 66(1) .… 15.20 s 66(3)(a) .… 15.24 s 66(3)(c) .… 15.25 s 66(4) .… 15.23 Evidence Act 1929 s 34A .… 19.4 Fair Trading Act 1987 s 14 .… 10.27, 22.2 s 42 .… 10.27

s 42(3) .… 10.27 s 56(1) .… 22.1 s 84(2) .… 22.51 Pt 3 Div 3 .… 22.6 Family Relationships Act 1975 Pt 2 .… 11.34 Juries Act Act 1927 s 5 .… 25.9 Law of Property Act 1936 s 92 .… 29.15 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 .… 29.31 s 3(1) .… 29.42 s 4(1) .… 29.32, 29.42 s 6(1) .… 29.33 s 6(4) .… 28.34 s 6(5) .… 29.36 s 6(7) .… 29.36 s 6(8)(b) .… 29.34 s 6(8)(d) .… 29.34 s 6(9)(c) .… 29.40 s 7 .… 20.21, 24.12 s 7(1) .… 10.15 s 7(2) .… 10.15, 29.41 s 7(4) .… 11.39, 24.4 s 8(2) .… 29.42 s 8(2)(b) .… 29.42 s 9(a) .… 29.42 s 12 .… 29.30 Pt 3 .… 29.42 Legal Practitioners Act 1981 s 42(6)(c) .… 25.37 Limitation of Actions Act 1936 .… 28.2 s 4 .… 5.14 s 35 .… 2.10, 28.3 s 35(c) .… 4.42 s 36 .… 28.4 s 36(1) .… 2.10, 2.24 s 36(2) .… 28.4 s 37 .… 19.74, 28.6 s 38A .… 28.41 s 45 .… 28.32 s 45(2) .… 28.31 s 45A .… 28.32 s 48 .… 28.23, 28.38, 28.42 s 48(1) .… 28.39 s 48(3)(a) .… 28.23 s 48(3)(b) .… 28.23, 28.39 s 48(3)(b)(i) .… 28.23, 28.38 s 48(3)(b)(ii) .… 28.23, 28.38 Limitation of Suits and Actions Act 1866 .… 2.7

Magistrates Court Act 1991 s 44 .… 6.52 Misrepresentation Act 1971 s 7(2)(b) .… 23.35 Motor Vehicles Act 1959 s 133 .… 10.24 Pt 4 .… 26.18 Occupational Health, Safety and Welfare Act 1986 s 23 .… 16.6 Partnership Act 1891 s 10 .… 29.14 s 12 .… 29.14 Police Act 1998 s 65 .… 26.59 Professional Standards Act 2004 .… 13.43 Recreational Services (Limitation of Liability) Act 2002 .… 10.27 Residential Tenancies Act 1978 s 80 .… 6.25 Sale of Goods Act 1895 s 22 .… 4.25 Spent Convictions Act 2009 .… 19.8 Statutes Amendment (Contracts Enforcement) Act 1982 s 3 .… 23.38 Statutes Amendment (Domestic Partners) Act 2006 .… 11.34 Summary Offences Act 1953 s 78(1) .… 6.43 s 78(2) .… 6.43, 6.45 Summary Procedure Act 1921 s 20 .… 6.36 Supreme Court Act 1935 s 30 .… 14.6 s 30B .… 11.4 s 30C .… 27.28 s 30C(4)(a) .… 27.32 s 30C(4)(ab) .… 27.32 Supreme Court Civil Rules 2006 r 248 .… 4.60 Survival of Causes of Action Act 1940 s 2 .… 28.42 s 2(2) .… 11.53 s 3(1)(b) .… 11.54, 27.12 s 3(1)(d) .… 11.55 s 4(b) .… 28.42 s 5 .… 11.60 Transplantation and Anatomy Act 1983 .… 4.16 Victims of Crime Act 2001 s 4 .… 12.13, 12.15 s 17 .… 12.12 s 17(2) .… 12.17 s 17(3) .… 12.17

s 17(5) .… 12.19 s 20(1)(c) .… 12.17 s 20(3)(a)(iii) .… 12.16 s 20(4) .… 12.18 s 20(7) .… 12.18 s 22 .… 12.13 s 28 .… 12.19 s 29(2) .… 12.19 Volunteers Protection Act 2001 .… 7.61 Work Health and Safety Act 2012 .… 16.6 Workers Rehabilitation and Compensation Act 1986 .… 12.7 s 31 .… 12.8 s 30(3) .… 12.9 s 30(5) .… 12.9 s 54 .… 11.4, 11.31, 12.11, 16.6 s 54(4B)-(8) .… 12.11, 20.20 Wrongs Act 1936 s 27A .… 10.18 s 34 .… 9.1 s 35 .… 9.1 Tasmania Administration and Probate Act 1935 s 27 .… 11.53 s 27(1) .… 18.12, 28.42 s 27(1)(b) .… 17.14 s 27(3)(a) .… 11.54, 27.12 s 27(3)(c)(i) .… 11.55 s 27(3)(c)(ii) .… 11.56 s 27(4) .… 11.60 s 27(5)(b) .… 28.42 Age of Majority Act 1973 s 2(2) .… 28.31 s 2(3) .… 28.31 s 3 .… 28.31, 29.17 Annulled Convictions Act 2003 .… 19.8 Associations Incorporation Act 1964 .… 29.11 Australian Consumer Law (Tasmania) Act 2010 s 6 .… 22.2 Pt 2 Div 4 .… 22.6 Building Act 2000 s 252 .… 29.42 s 255 .… 28.5 Civil Aviation (Carriers’ Liability) Act 1963 .… 28.7 Civil Liability Act 2002 s 3A(3) .… 29.42 s 5(1) .… 10.12 s 6 .… 6.59 s 8 .… 11.4 s 11 .… 8.4

s 13 .… 9.1 s 14 .… 9.1 s 20 .… 8.10 s 21 .… 8.35 s 22 .… 8.27, 8.35 s 22(5) .… 8.35 s 26 .… 11.12 s 28 .… 11.28 s 28A .… 11.26, 11.43 s 28B .… 11.17 s 28D .… 24.3 s 28E .… 24.9 s 32(2) .… 7.48, 7.49 s 33 .… 7.42 s 34(1) .… 7.45 s 34(2)(a) .… 7.47 s 34(2)(b) .… 7.50 s 34(4) .… 7.45 s 38 .… 7.31 s 42 .… 7.36 s 43A(1) .… 29.42 s 43A(2) .… 29.42 s 43B(1) .… 29.42 s 43B(3)(a) .… 29.42 s 43B(3)(b) .… 29.42 s 43C .… 29.42 Pt 6 Div 4 .… 10.20 Pt 6 Div 5 .… 10.27 Pt 9A .… 29.42 Pt 10 .… 7.61 Civil Liability (Carriers’ Liability) Act 1963 s 5 .… 12.40 Criminal Code Act 1924 s 4 .… 6.37 s 26 .… 6.40 s 30(3) .… 6.41 s 32 .… 6.41 ss 40-42 .… 6.18 ss 41-45 .… 6.18 s 43 .… 6.18 s 50 .… 6.31 ss 140-141 .… 14.54 s 196 .… 17.9 s 297(2) .… 21.47 s 301 .… 6.42 Crown Proceedings Act 1993 .… 29.1 s 4(1) .… 29.2 s 5 .… 26.57, 27.48 s 5(1) .… 29.3 Damage by Aircraft Act 1963

s 3 .… 5.9 s 4 .… 5.9 Defamation Act 1895 .… 17.9 Defamation Act 1957 .… 17.9 s 9(2) .… 19.72 s 16 .… 19.36 s 18 .… 19.12 Defamation Act 2005 .… 17.5 s 3(a) .… 17.13 s 4 .… 19.33 s 6 .… 17.2, 17.13 s 7 .… 17.2 s 9 .… 18.13 s 10 .… 18.12 s 11 .… 19.73 s 11(3) .… 19.73 s 14(1) .… 19.70 s 15(1) .… 19.70 s 15(2) .… 19.70 s 17(1) .… 19.70 s 18 .… 19.70 s 20A .… 19.74, 28.6 s 22(3) .… 19.76 s 24 .… 19.35, 19.71 s 25 .… 19.2 s 26 .… 19.12 s 27(1) .… 19.31 s 27(2) .… 6.53, 19.32 s 27(2)(a)(i) .… 19.32 s 27(2)(a)(ii) .… 19.32 s 27(2)(a)(iii) .… 19.32 s 27(2)(a)(iv) .… 19.32 s 27(2)(b)(i) .… 19.34 s 27(2)(b)(ii) .… 19.34 s 27(2)(b)(iii) .… 19.34 s 28 .… 19.42 s 28(3) .… 19.42 s 29(1) .… 19.40, 19.41 s 29(2) .… 19.41 s 29(4)(a) .… 19.40 s 29(4)(e) .… 19.41 s 29(4)(f) .… 19.41 s 29(4)(g)-(j) .… 19.41 s 29(4)(k) .… 19.41 s 29(4)(m) .… 19.41 s 29(4)(n) .… 19.41 s 30 .… 19.39, 19.58 s 30(1) .… 19.58 s 30(4) .… 19.61 s 31 .… 19.13

s 31(4)(a) .… 19.25 s 31(4)(b) .… 19.28 s 31(4)(c) .… 19.29 s 31(5) .… 19.21 s 31(5)(b) .… 19.23 s 31(6) .… 19.22 s 32 .… 18.23 s 32(1)(c) .… 18.26 s 32(3)(a) .… 18.26 s 32(3)(b) .… 18.26 s 32(3)(c) .… 18.26 s 32(3)(d) .… 18.26 s 32(3)(e) .… 18.26 s 32(3)(f) .… 18.26 s 32(3)(g) .… 18.26 s 32(3)(h) .… 18.25 s 33 .… 19.72 s 34 .… 19.76 s 35 .… 19.76 s 35(2) .… 19.81, 27.7 s 36 .… 19.81 s 37 .… 19.82, 27.11 s 38(1)(a) .… 19.78 s 38(1)(b) .… 19.78 s 38(1)(c) .… 19.79 s 38(1)(d) .… 19.79 s 38(1)(e) .… 19.79 s 38(2) .… 19.77 s 42 .… 19.4 Pt 3, Div 1 .… 19.70 Sch 1 .… 19.33 Dog Control Act 2000 s 4 .… 15.20 s 62 .… 15.19, 15.20 s 62(1) .… 15.21 Education Act 1994 s 82A .… 6.32 Fair Trading Act 1990 s 14(1) .… 22.1 Fatal Accidents Act 1934 s 4 .… 11.33 s 5 .… 11.34, 11.44 s 8 .… 11.34 s 10(1) .… 11.51 s 10(1)(b) .… 11.51 s 10(2) .… 11.58 Housing Indemnity Act 1992 s 7 .… 13.70 s 8 .… 13.70 Human Tissue Act 1985 .… 4.16

Justices Act 1959 Pt XII .… 6.52 Law of Animals Act 1962 Pt II .… 6.28 s 19 .… 7.62 Limitation Act 1974 .… 28.2 s 4(1)(a) .… 4.42, 28.3 s 5(1) .… 28.4 s 5(2) .… 28.36 s 5(5) .… 28.4 s 5A .… 28.4, 28.36, 28.39 s 5A(3)(a) .… 2.24, 28.13 s 5A(3)(b) .… 28.13 s 5A(5) .… 28.28 s 6 .… 4.62 s 6(1) .… 4.42, 28.9 s 6(2) .… 4.42 s 10(2) .… 5.14 s 26 .… 28.32 s 32 .… 4.42 s 32(1) .… 28.33 s 32C .… 28.41 s 32D .… 28.41 Local Government Act 1993 .… 6.28 Married Women’s Property Act 1935 s 3(2) .… 29.15 Mercantile Law Act 1935 s 11 .… 23.38 Motor Accidents (Liabilities and Compensation) Act 1973 .… 2.19, 26.18 s 23(1) .… 12.27 s 23(1A) .… 12.27 s 24(1)(a) .… 12.32 s 24(1)(b) .… 12.33 s 24(1)(d) .… 12.32 s 24(1)(f) .… 12.32 s 24(2) .… 12.32 s 27 .… 12.33 Motor Accidents (Liabilities and Compensation) Regulations 2010 Sch 1 Pt 2 .… 12.30 Sch 1 Pt 3 .… 12.31 Sch 1 Pt 3 cl 2(1) .… 12.31 Sch 1 Pt 4 cl 1 .… 12.31 Sch 1 Pt 5 cl 3(4)(a) .… 12.28 Sch 1 Pt 5 cl 3(4)(b) .… 12.28 Sch 1 Pt 5 cl 3(5) .… 12.28 Sch 1 Pt 5 cl 3(7) .… 12.28 Sch 1 Pt 5 cl 4(3)(a) .… 12.28 Sch 1 Pt 5 cl 4(3)(b) .… 12.28 Sch 1 Pt 5 cl 5 .… 12.29 Partnership Act 1891

s 15 .… 29.14 s 17 .… 29.14 Police Service Act 2003 s 84 .… 26.59 Prisoners (Removal of Civil Disabilities) Act 1991 s 4 .… 29.23 Professional Standards Act 2005 .… 13.43 Relationships (Consequential Amendments) Act 2003 .… 11.34 Sale of Goods Act 1896 s 27(1) .… 4.25 Sentencing Act 1997 s 10 .… 25.6 Status of Children Act 1974 .… 11.34 Supreme Court Civil Procedure Act 1932 s 11(13)(b) .… 14.6 s 11(15) .… 14.48 s 35 .… 27.28 Supreme Court Rules 2000 r 875 .… 4.60 Victims of Crimes Assistance Act 1976 s 2(2) .… 12.15 s 4(1)(a) .… 12.12, 12.13 s 4(1)(b) .… 12.14 s 4(2) .… 12.15 s 4(3) .… 12.17 s 5(2) .… 12.13 s 5(3) .… 12.18 s 5(3A) .… 12.18 s 6(1)(b) .… 12.16 s 6(1)(d) .… 12.19 s 6A(1) .… 12.16 s 7A .… 12.19 s 9(2) .… 12.19 Victims of Crimes Assistance Regulations 2010 reg 4 .… 12.16 Work Health and Safety Act 2012 .… 16.6 Workers Rehabilitation and Compensation Act 1988 .… 12.7 s 4(2) .… 12.8 s 25(1) .… 12.8, 12.9 s 25(2)(a)(ii) .… 12.9 s 25(6) .… 12.9 s 133 .… 11.24, 11.48, 12.11 s 134 .… 12.11, 20.20 Workplace Health and Safety Act 1995 .… 16.6 Wrongs Act 1954 s 2 .… 29.32 s 3 .… 29.31 s 3(1)(b) .… 29.30 s 3(1)(c) .… 29.34 s 3(1)(d) .… 29.33

s 3(2) .… 29.36 s 3(3) .… 29.28 s 3(5) .… 28.34 s 3(6) .… 28.34 s 4(1) .… 10.15 s 4(4) .… 11.39 Victoria Accident Compensation Act 1985 .… 12.7 s 5(1) .… 12.8 s 14(2) .… 12.8 s 14(4) .… 12.8 s 82(1) .… 12.9 s 82(3) .… 12.9 s 83(2) .… 12.9 s 134AB .… 12.11 s 134AB(12) .… 11.24, 12.11 s 134AB(22)(b) .… 11.31 s 134AB(24)(b) .… 11.17 s 134AB(25) .… 11.48 s 134AB(32) .… 11.26, 11.43 s 134AB(34) .… 27.30 s 135A(7) .… 11.12 s 138 .… 12.11, 20.20 Administration and Probate Act 1958 s 29 .… 11.53 s 29(1) .… 11.53, 28.42 s 29(2)(a) .… 11.54, 27.12 s 29(2)(c)(i) .… 11.55 s 29(2)(c)(ii) .… 11.56 s 29(3)(b) .… 28.42 s 29(3A) .… 28.42 s 29(4) .… 11.60 Age of Majority Act 1977 s 3 .… 28.31, 29.17 s 3(2) .… 28.31 s 3(3) .… 28.31 Associations Incorporation Act 1981 .… 29.11 Australian Consumer Law and Fair Trading Act 2012 s 4 .… 22.6 s 8 .… 22.2 Building Act 1993 s 46 .… 13.75 s 131 .… 29.42 s 134 .… 28.5 Choice of Law (Limitation Periods) Act 1993 s 5 .… 28.41 s 6 .… 28.41 Civil Liability (Carriers’ Liability) Act 1961 .… 28.7 s 5 .… 12.40

Constitution Act 1975 s 19(1) .… 6.53, 19.32 Corrections Act 1986 s 104Q .… 29.23 Pt 9C .… 29.23 Crimes Act 1958 s 81(2) .… 6.59 s 322B .… 6.37 s 339(2) .… 21.47 s 464A .… 6.43, 6.44, 6.45 s 457 .… 6.38 s 549 .… 29.23 Crimes (Amendment) Act 1973 .… 29.23 Crown Proceedings Act 1958 .… 29.1 s 23(1) .… 27.48 s 23(1)(b) .… 29.3, 29.4 s 23(3) .… 29.2 s 25 .… 26.57 Defamation Act 2005 .… 17.5 s 3(a) .… 17.13 s 4 .… 19.33 s 6 .… 17.2, 17.13 s 7 .… 17.2 s 9 .… 18.13 s 10 .… 17.14, 18.12 s 11 .… 19.73 s 11(3) .… 19.73 s 14(1) .… 19.70 s 15(1) .… 19.70 s 15(2) .… 19.70 s 17(1) .… 19.70 s 18 .… 19.70 s 22(3) .… 19.76 s 24 .… 19.35, 19.71 s 25 .… 19.2 s 26 .… 19.12 s 27(1) .… 19.31 s 27(2) .… 6.53, 19.32 s 27(2)(a)(i) .… 19.32 s 27(2)(a)(ii) .… 19.32 s 27(2)(a)(iii) .… 19.32 s 27(2)(a)(iv) .… 19.32 s 27(2)(b)(i) .… 19.34 s 27(2)(b)(ii) .… 19.34 s 27(2)(b)(iii) .… 19.34 s 28 .… 19.42 s 28(3) .… 19.42 s 29(1) .… 19.40, 19.41 s 29(2) .… 19.41 s 29(4)(a) .… 19.40

s 29(4)(e) .… 19.41 s 29(4)(f) .… 19.41 s 29(4)(g)-(j) .… 19.41 s 29(4)(k) .… 19.41 s 29(4)(m) .… 19.41 s 29(4)(n) .… 19.41 s 30 .… 19.39, 19.58 s 30(1) .… 19.58 s 30(4) .… 19.61 s 31 .… 19.13 s 31(4)(a) .… 19.25 s 31(4)(b) .… 19.28 s 31(4)(c) .… 19.29 s 31(5) .… 19.21 s 31(5)(b) .… 19.23 s 31(6) .… 19.22 s 32 .… 18.23 s 32(1)(c) .… 18.26 s 32(3)(a) .… 18.26 s 32(3)(b) .… 18.26 s 32(3)(c) .… 18.26 s 32(3)(d) .… 18.26 s 32(3)(e) .… 18.26 s 32(3)(f) .… 18.26 s 32(3)(g) .… 18.26 s 32(3)(h) .… 18.25 s 33 .… 19.72 s 34 .… 19.76 s 35 .… 19.76 s 35(2) .… 19.81, 27.7 s 36 .… 19.81 s 37 .… 19.82, 27.11 s 38(1)(a) .… 19.78 s 38(1)(b) .… 19.78 s 38(1)(c) .… 19.79 s 38(1)(d) .… 19.79 s 38(1)(e) .… 19.79 s 38(2) .… 19.77 s 42 .… 19.4 Pt 3, Div 1 .… 19.70 Sch 1 .… 19.33 Domestic Building Contracts Act 1995 s 8 .… 13.70 s 9 .… 13.70 Domestic Animals Act 1994 s 29 .… 15.19 s 29(2)(a) .… 15.24 s 29(2)(b) .… 15.25 s 29(3) .… 15.20 s 29(3)-(8) .… 15.21

s 29(4) .… 15.20 s 29(5) .… 15.20 s 29(6) .… 15.20 s 29(7) .… 15.20 s 29(8) .… 15.20 Fair Trading Act 1999 s 9 .… 10.27 s 9(1) .… 22.1 s 32N .… 10.27 s 32N(3)(b) .… 10.27 Goods Act 1958 s 54(3) .… 4.31 Human Tissue Act 1982 .… 4.16 Instruments Act 1958 s 128 .… 23.38 Legal Practice Act 1996 s 97 .… 25.37 s 98 .… 25.37 Lifts and Cranes Act 1967 s 14(10) .… 16.30 Limitation of Actions Act 1958 .… 28.2 s 3(1) .… 28.4 s 5(1)(a) .… 4.42, 28.3 s 5(1A) .… 2.24, 28.14 s 5(1AA) .… 28.4 s 5(1AAA) .… 19.74, 28.6 s 5(9) .… 28.14 s 6 .… 4.62 s 6(1) .… 4.42, 28.9 s 6(2) .… 4.42 s 8 .… 5.14 s 23(1) .… 28.32 s 23(2) .… 28.31 s 23A .… 28.24 s 23A(3)(a)-(f) .… 28.25 s 23B .… 19.74, 28.6 s 27 .… 4.42, 28.33 s 27B .… 28.4 s 27D .… 28.4 s 27D(1) .… 28.13 s 27E .… 28.32 s 27F .… 28.13 s 27H .… 28.36 s 27I .… 28.14 s 27J(1) .… 28.32 s 27K .… 28.24 s 27L .… 28.25 s 27L(4) .… 28.39 s 27N .… 28.14 Magistrates’ Court Act 1989

s 14 .… 6.52 s 57 .… 6.36 Marriage Act 1958 s 156 .… 29.15 Occupational Health and Safety Act 2004 s 34(a) .… 16.6 Partnership Act 1958 s 14 .… 29.14 s 16 .… 29.14 Penalty Interest Rates Act 1983 .… 27.30 Police Regulation Act 1958 s 123 .… 26.59 Professional Standards Act 2003 .… 13.43 Residential Tenancies Act 1980 s 146 .… 6.25 Road Management Act 2004 s 102 .… 7.36 Sentencing Act 1991 s 75 .… 25.6 s 76 .… 25.6 Status of Children Act 1974 .… 11.34 Supreme Court Act 1986 s 38 .… 14.6 s 48 .… 14.48 s 60 .… 27.28 s 60(1) .… 27.32 s 60(2)(a) .… 27.32 s 60(3)(b) .… 27.31 s 60(3)(c) .… 27.32 s 120(2) .… 6.48 Supreme Court (General Civil Procedure) Rules 2005 r 66.04 .… 4.60 Transport Accident Act 1986 .… 2.19 s 35 .… 12.21 s 39(1) .… 12.25 s 39(2) .… 12.25 s 39(3) .… 12.25 s 40(1) .… 12.25 s 40(1)(c) .… 12.25 s 40(1)(d) .… 12.25 s 44 .… 12.22 s 44(2) .… 12.22 s 44(3) .… 12.22 s 45 .… 12.22 s 46 .… 12.22 s 47 .… 12.23 s 49(2) .… 12.22 s 49(3) .… 12.22 s 49(5) .… 12.22 s 50 .… 12.22

s 53 .… 12.22 s 57 .… 12.24 s 58 .… 12.24 s 59 .… 12.24 s 61(1) .… 12.22, 12.24 s 61(2) .… 12.23, 12.24 s 93 .… 12.26 s 93(1) .… 24.3, 24.11 s 93(1A) .… 24.3, 24.11 s 93(2) .… 12.26, 24.3, 24.11 s 93(7) .… 11.12 s 93(7)(b) .… 11.31 s 93(8) .… 11.48 s 93(9) .… 11.48 s 93(10)(c) .… 11.17 s 93(11) .… 12.26 s 93(11)(a) .… 11.23 s 93(11A) .… 12.26 s 93(13) .… 11.26, 11.43 s 93(15) .… 27.30 s 93A .… 20.10 Pt 7 .… 26.18 Victims of Crime Assistance Act 1996 s 1(2) .… 12.12 s 1(3) .… 12.16 s 3 .… 12.13, 12.15 s 7(2) .… 12.14 s 8(1) .… 12.16 s 8(1)(d) .… 12.15 s 8A .… 12.15 s 10(1) .… 12.16 s 11 .… 12.17 s 13(1) .… 12.16 s 16 .… 12.19 s 31 .… 12.13 s 51 .… 12.19 s 52(a) .… 12.18 s 54 .… 12.18 s 62 .… 12.19 Wrongs Act 1958 s 14 .… 24.10 ss 14A-14E .… 7.38 s 14G(2) .… 10.12 s 16 .… 11.33 s 17 .… 11.34 s 17(1) .… 11.44 s 18 .… 11.34 s 19(1)(a)-(c) .… 11.51 s 19(1)(d) .… 11.51 s 19(2) .… 11.52

s 20(1) .… 28.36 s 20(1A) .… 28.36, 28.39 s 20(2) .… 28.39 s 20(3) .… 28.39 s 23A .… 27.40 s 23A(1) .… 29.32 s 23B(1) .… 29.33 s 23B(3) .… 29.34 s 23B(4) .… 29.33 s 24(2) .… 29.36 s 24(2A) .… 29.41 s 24(4) .… 28.34 s 24AB .… 29.30 s 24AF(1) .… 29.42 s 24AH(1) .… 29.42 s 24AI(1) .… 29.42 s 24AI(3) .… 29.42 s 24AJ .… 29.42 s 24AN .… 29.42 s 26(1) .… 10.15 s 26(4) .… 11.39 s 28A .… 11.7, 11.8 s 28F .… 11.12 s 28G .… 11.31 s 28HA .… 11.28 s 28I .… 11.26, 11.43 s 28IA .… 11.17 s 28IB .… 11.17 s 28ID .… 11.19 s 30 .… 5.9 s 31 .… 5.9 s 32 .… 25.33 s 33 .… 7.62 s 51 .… 9.1 s 59 .… 8.35 s 60 .… 8.35 s 72(1) .… 7.45 s 72(2)(a) .… 7.47 s 72(2)(b) .… 7.48 s 72(2)(c) .… 7.49 s 72(2)(d) .… 7.50 s 72(3) .… 7.45 s 73(2) .… 7.48, 7.49 s 73(3) .… 7.54 s 75 .… 7.42 s 83 .… 7.31 Pt I .… 17.8 Pt III .… 11.33 Pt IV .… 29.31 Pt IVAA .… 29.42

Pt VC .… 11.4 Pt IX .… 7.61 Pt X Div 4 .… 10.20 Wrongs (Dependants) Act 1982 s 3 .… 11.41 s 4 .… 11.41 Western Australia Acts Amendment (Equality of Status) Act 2003 Pt 20 .… 11.34 Age of Majority Act 1972 s 3(1) .… 28.31 s 5 .… 28.31, 29.17 Associations Incorporation Act 1987 .… 29.11 Bail Act 1982 s 6 .… 6.43 Cattle Trespass Fencing and Impounding Act 1882 s 22 .… 15.10 Choice of Law (Limitation Periods) Act 1994 s 5 .… 28.41 s 6 .… 28.41 Civil Aviation (Carriers’ Liability) Act 1961 .… 28.7 Civil Liability Act 2002 s 4A .… 29.42 s 5AI(1) .… 29.42 s 5AK(1) .… 29.42 s 5AK(3)(a) .… 29.42 s 5AK(3)(b) .… 29.42 s 5AL .… 29.42 s 5B .… 8.4 s 5C .… 9.1 s 5D .… 9.1 s 5H .… 8.10 s 5J .… 10.27 s 5J(6) .… 10.27 s 5P(2)(c) .… 7.49 s 5PB(1) .… 8.35 s 5PB(2) .… 8.35 s 5S(1) .… 7.45 s 5S(2)(a) .… 7.47 s 5S(2)(b) .… 7.48 s 5S(2)(d) .… 7.50 s 5S(4) .… 7.45 s 5T .… 7.42 s 5W .… 7.31 s 5Z .… 7.36 s 9 .… 11.31 s 10A .… 11.28 s 11 .… 11.12 s 12 .… 11.17

Pt 1A Div 4 .… 10.27 Pt 1A Div 6 .… 10.20 Pt 1F .… 29.42 Civil Liability (Carriers’ Liability) Act 1961 s 6 .… 12.40 Criminal Code .… 6.32 s 3 .… 6.37, 29.23 s 207 .… 14.54 s 231 .… 6.40 s 232 .… 6.42 s 233 .… 6.41 s 235 .… 6.40 s 250 .… 6.17 s 251 .… 6.18 ss 251-255 .… 6.18 s 254 .… 6.18 s 257 .… 6.31 s 258 .… 6.34 s 683 .… 29.23 Chap XXXV .… 17.9 Criminal Injuries Compensation Act 2003 s 3 .… 12.15 s 12 .… 12.12, 12.13 s 13 .… 12.13 ss 14-17 .… 12.13 s 30(3) .… 12.17 s 31(1) .… 12.16 s 36 .… 12.18 s 38 .… 12.18 s 41 .… 12.18 s 42(3) .… 12.19 s 42(4) .… 12.19 Pt 6 .… 12.19 Crown Suits Act 1947 .… 29.1 s 5 .… 26.57, 27.48, 29.3 Damage by Aircraft Act 1964 s 4 .… 5.9 s 5 .… 5.9 Defamation Act 2005 .… 17.5 s 3(a) .… 17.13 s 4 .… 19.33 s 6 .… 17.2, 17.13 s 7 .… 17.2 s 9 .… 18.13 s 10 .… 17.14, 18.12 s 11 .… 19.73 s 11(3) .… 19.73 s 14(1) .… 19.70 s 15(1) .… 19.70 s 15(2) .… 19.70

s 17(1) .… 19.70 s 18 .… 19.70 s 22(3) .… 19.76 s 24 .… 19.35, 19.71 s 25 .… 19.2 s 26 .… 19.12 s 27(1) .… 19.31 s 27(2) .… 6.53, 19.32 s 27(2)(a)(i) .… 19.32 s 27(2)(a)(ii) .… 19.32 s 27(2)(a)(iii) .… 19.32 s 27(2)(a)(iv) .… 19.32 s 27(2)(b)(i) .… 19.34 s 27(2)(b)(ii) .… 19.34 s 27(2)(b)(iii) .… 19.34 s 28 .… 19.42 s 28(3) .… 19.42 s 29(1) .… 19.40, 19.41 s 29(2) .… 19.41 s 29(4)(a) .… 19.40 s 29(4)(e) .… 19.41 s 29(4)(f) .… 19.41 s 29(4)(g)-(j) .… 19.41 s 29(4)(k) .… 19.41 s 29(4)(m) .… 19.41 s 29(4)(n) .… 19.41 s 30 .… 19.39, 19.58 s 30(1) .… 19.58 s 30(4) .… 19.61 s 31 .… 19.13 s 31(4)(a) .… 19.25 s 31(4)(b) .… 19.28 s 31(4)(c) .… 19.29 s 31(5) .… 19.21 s 31(5)(b) .… 19.23 s 31(6) .… 19.22 s 32 .… 18.23 s 32(1)(c) .… 18.26 s 32(3)(a) .… 18.26 s 32(3)(b) .… 18.26 s 32(3)(c) .… 18.26 s 32(3)(d) .… 18.26 s 32(3)(e) .… 18.26 s 32(3)(f) .… 18.26 s 32(3)(g) .… 18.26 s 32(3)(h) .… 18.25 s 33 .… 19.72 s 34 .… 19.76 s 35 .… 19.76 s 35(2) .… 19.81, 27.7

s 36 .… 19.81 s 37 .… 19.82, 27.11 s 38(1)(a) .… 19.78 s 38(1)(b) .… 19.78 s 38(1)(c) .… 19.79 s 38(1)(d) .… 19.79 s 38(1)(e) .… 19.79 s 38(2) .… 19.77 s 42 .… 19.4 Pt 3, Div 1 .… 19.70 Sch 1 .… 19.33 Dog Act 1976 s 29 .… 6.49 s 46 .… 15.19 s 46(2) .… 15.20, 15.23 s 46(4) .… 15.20 s 46(5) .… 15.20 Evidence Act 1906 s 49 .… 24.10 Fair Trading Act 1987 s 10(1) .… 22.1 Fair Trading Act 2010 s 19 .… 22.2 s 79(2) .… 22.51 Pt 3 Div 4 .… 22.6 Fatal Accidents Act 1959 s 4 .… 11.33 s 5(1) .… 11.58 s 5(2) .… 11.51 s 6(1) .… 11.34 s 6(4) .… 11.44 s 9 .… 11.34 Highways (Liability for Straying Animals) Act 1983 s 3 .… 7.62 Human Tissue and Transplant Act 1982 .… 4.16 Justices Act 1902 Pt IX .… 6.52 s 61 .… 6.36 Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 s 3 .… 10.14 s 4(1) .… 10.15, 11.39 s 7(1)(b) .… 29.30 s 7(1)(c) .… 29.33 s 7(2) .… 29.36 Pt 3 .… 29.31 Law Reform (Miscellaneous Provisions) Act 1941 s 3 .… 24.3, 29.15 s 4 .… 11.53 s 4(1) .… 11.53, 28.42 s 4(2)(a) .… 11.54, 27.12

s 4(2)(c) .… 11.55 s 4(4) .… 11.60 s 5 .… 11.26, 11.43 Limitation Act 2005 .… 28.2 s 3(1) .… 28.4 s 13 .… 28.3 s 13(1) .… 4.42 s 14 .… 2.24 s 14(1) .… 28.4 s 14(2) .… 28.36 s 15 .… 19.74, 28.6 s 16 .… 2.24 s 17 .… 28.34 s 19 .… 5.14 s 30(1) .… 28.32 s 31(1) .… 28.32 s 32 .… 28.32 s 32(2) .… 28.32 s 33 .… 28.14, 28.32 s 35 .… 28.32 s 38 .… 4.42, 28.33 s 39 .… 28.26, 28.39 s 40 .… 19.74, 28.6 s 41(1) .… 28.32 s 41(2) .… 28.32 s 41(3) .… 28.32 s 42 .… 28.32 s 55(1) .… 28.13 s 56 .… 28.13 s 57 .… 28.36 s 58 .… 29.34 s 60 .… 4.42, 4.62, 28.9 Local Government Act 1960 .… 15.10 Local Government (Miscellaneous Provisions) Act 1960 s 463 .… 15.8 Marine Act 1982 s 124 .… 26.40 Motor Vehicles (Third Party Insurance) Act 1943 .… 26.18 s 3C .… 11.31 s 3D .… 11.17 s 3F .… 11.12 s 16 .… 11.4 s 26 .… 10.24 Occupiers’ Liability Act 1985 .… 7.38 Parliamentary Privileges Act 1891 s 1 .… 19.32 Partnership Act 1895 s 17 .… 29.14 s 19 .… 29.14 Police Act 1892

s 137 .… 26.59 Professional Standards Act 1997 .… 13.43 Property Law Act 1969 s 11(2) .… 1.2, 10.23 Residential Tenancies Act 1987 s 80 .… 6.25 Sale of Goods Act 1895 s 22 .… 4.25 Sentencing Act 1995 s 46 .… 25.6 Spent Convictions Act 1988 .… 19.8 Supreme Court Act 1935 s 25(10) .… 14.6 s 32 .… 27.28 s 32(2)(aa) .… 27.30 s 32(2)(a) .… 27.32 Volunteers and Food and Other Donors (Protection from Liability) Act 2002 .… 7.61 Workers’ Compensation and Injury Management Act 1981 .… 12.7 s 5(1) .… 12.8, 12.9 s 14(2a) .… 12.8 s 19(2) .… 12.9 s 92 .… 11.24, 11.48, 12.11 s 93 .… 12.11, 20.20 Pt IV Div 2 .… 12.11 United Kingdom Administration of Justice Act 1982 s 2 .… 24.3, 24.9, 24.11 s 2(c) .… 20.10 Aliens Order 1953 .… 3.27 Animals Act 1971 s 2 .… 15.14 Bill of Rights 1688 Art 9 .… 6.53, 19.32 Brighton and Chichester Railways Act 1844 .… 16.29 Carriage of Goods by Sea Act 1992 .… 13.61 Chancery Amendment Act 1858 (Lord Cairns’ Act) s 2 .… 14.6, 14.50 Children and Young Persons Act 1933 s 1(7) .… 6.31 Compensation Act 2006 s 3 .… 9.3 Congenital Disabilities (Civil Liability) Act 1976 .… 7.16, 7.60 Contracts (Rights of Third Parties) Act 1999 .… 1.2 Courts and Legal Services Act 1990 ss 58-58A .… 25.37 Crown Proceedings Act 1947 s 2(3) .… 26.57 Damages Act 1996 s 1(1) .… 11.26

s 2 .… 11.4 Damages (Personal Injury) Order 2001 .… 11.26 Defamation Act 1952 s 6 .… 19.22 Distress for Rent Act 1737 s 19 .… 4.53 Family Law Reform Act 1969 s 8 .… 6.9 s 8(3) .… 6.9 Fatal Accidents Act (Lord Campbell’s Act) .… 11.11, 11.32, 11.33, 11.35, 13.4, 20.11, 20.23, 28.42 Fires Prevention (Metropolis) Act 1774 s 86 .… 14.48 Forfeiture Act 1870 s 8 .… 29.23 Justices of the Peace Act 1997 s 52(1) .… 6.52 Latent Damage Act 1986 .… 28.15, 28.16 Law Reform (Contributory Negligence) Act 1945 s 1(1) .… 10.15 Law Reform (Miscellaneous Provisions) Act 1970 s 5 .… 24.9 Libel Act 1843 .… 17.8, 19.68 Limitation Act 1939 .… 2.8 s 32(2) .… 4.42 Limitation Act 1963 s 1 .… 28.27 s 2 .… 28.27 Mental Health Act 1983 .… 6.10 Occupiers’ Liability Act 1957 .… 7.38 Occupiers’ Liability Act 1984 .… 7.38 Rent Acts .… 5.11 Road Traffic Act 1960 s 74(5) .… 8.35 Road Traffic Act 1972 s 148(3) .… 10.24 Road Traffic Act 1988 s 149 .… 10.24 Rules of Supreme Court O 15 r 10A .… 4.15 O 15 r 11A .… 4.15 Second Statute of Westminster (1285) .… 16.2 Senior Courts Act 1981 s 35A .… 27.28 State Immunity Act 1978 .… 29.8 Statute of Frauds 1677 .… 23.38 s 4 .… 5.14 Statute of Frauds Amendment Act 1828 s 6 .… 23.38, 23.39 Torts (Interference with Goods) Act 1977 .… 4.15, 4.54 s 1 .… 4.2

s 2(1) .… 4.2, 4.31 s 2(2) .… 4.2 s 6(1) .… 4.40 s 7(2) .… 4.35 s 8 .… 4.35 s 8(1) .… 4.14 s 10 .… 4.34 s 12 .… 4.2 s 13 .… 4.2 s 14(1) .… 4.17 Sch 1 .… 4.2 Trade Disputes Act 1906 s 3 .… 21.1 Trade Union and Labour Relations (Consolidation) Act 1992 s 219(1) .… 21.1 Unfair Contract Terms Act 1977 s 2(1) .… 10.23, 10.24 s 2(2) .… 10.24 Weights and Measures Act 1963 .… 5.5 Workmen’s Compensation Act 1897 .… 12.7 Canada Charter of Rights .… 24.3 Combines Investigation Act 1970 .… 19.33 Crown Liability and Proceedings Act, RSC 1985, Chap C-50 s 36 .… 20.16 Alberta Charter Omnibus Act SA 1985 Chap 15 s 43 .… 24.9 Domestic Relations Act RSA 2000 Chap D-14 s 46 .… 24.3 British Columbia Family Relations Act RSBC 1996 c 128 s 123 .… 24.3, 24.9 Law and Equity Act RSBC 1996 s 63 .… 20.10 Privacy Act RSBC 1996 Chap 873 s 1(1) .… 17.4 Manitoba Equality of Status Act RSM 1987 Chap E-130 s 1(1)(c) .… 24.3 s 2(1) .… 24.9 Privacy Act CCSM c P125 s 3(a) .… 17.4 New Brunswick Charter of Rights Compliance Act SNB 1985 Chap 41 s 4(8) .… 24.3 s 4(9) .… 24.9 Law Reform Act, RSNB 2011, c184 .… 20.10 Newfoundland and Labrador

Family Law Act RSN 1990 Chap F-2 s 72 .… 24.3 Privacy Act RSNL 1990 Chap P-22 s 3(1) .… 17.4 Ontario Dower and Miscellaneous Abolition Act RSO 1980 Chap 152 s 69(3) .… 24.3 s 69(4) .… 24.9 Prince Edward Island Family Law Reform Act RSPEI 1974 Chap F-2.1 s 61.1(3) .… 24.3 s 61.1(4) .… 24.9 Saskatchewan Children’s Law Act SS 1990-91 c C-8.1 s 61(2) .… 24.9 Equality of Status of Married Persons Act SS 1984-85-86 Chap E.10.3 s 6 .… 24.3 Privacy Act RSS 1978 c P-24 s 2 .… 17.4 New Zealand Accident Compensation Act 1972 .… 12.43 s 5(2) .… 20.10, 24.3, 24.11 Accident Compensation Act 1982 .… 12.43, 20.10 Accident Compensation Act 2001 .… 2.19, 3.38, 15.19, 24.14, 26.18, 28.35 s 3 .… 12.44 s 20 .… 12.47 s 20(1) .… 12.45 s 20(2)(i)-(j) .… 12.47 s 21B .… 12.45 s 25(1)(a) .… 12.45 s 25(1)(b) .… 12.45 s 26(1) .… 12.45 s 28 .… 12.46 s 30 .… 12.46 s 32(1)(a)-(b) .… 12.47 ss 81-84 .… 12.48 ss 85-96 .… 12.48 s 98 .… 12.48 s 115 .… 12.48 s 116 .… 12.48, 12.49 s 317 .… 12.44 s 319 .… 2.5, 27.10, 28.14 s 319(1) .… 27.13 s 319(2) .… 27.13 Pt 6 .… 12.44 Sch 1 cl 32(3) .… 12.48 Sch 1 cl 42(3) .… 12.48 Sch 1 cl 46 .… 12.48 Sch 1 cl 47 .… 12.48

Sch 1 cl 51 .… 12.48 Sch 1 cl 56(3) .… 12.48 Sch 1 cl 56(4) .… 12.48 Sch 1 cl 64 .… 12.49 Sch 1 cl 65 .… 12.49 Sch 1 cl 66 .… 12.49 Sch 1 cl 70 .… 12.49 Sch 1 cl 74 .… 12.49 Sch 1 Pt 3 .… 12.48 Sch 3 .… 12.45 Accident Compensation Amendment Act (No 2) 1973 .… 24.11 s 5 .… 20.10 Accident Insurance Act 1998 .… 12.43 Accident Rehabilitation and Compensation Insurance Act 1992 .… 12.43 Acts Interpretation Act 1924 s 20(f) .… 20.10 Age of Majority Act 1970 s 4 .… 29.17 Animals Law Reform Act 1989 s 4 .… 15.11 s 5 .… 7.62 Bill of Rights Act 1990 s 14 .… 19.83 Building Act 2004 s 393(2) .… 28.5 s 397 .… 13.70 s 398 .… 13.70 Children and Young Persons Act 1974 .… 7.33 Civil Aviation Act 1990 s 97(2) .… 5.9 Commissions of Inquiry Act 1908 s 6 .… 19.33 s 13 .… 19.33 Companies Act 1993 s 260(2) .… 25.42 Sch 6, para (g) .… 25.42 Consular Privileges and Immunities Act 1971 .… 29.9 Consumer Guarantees Act 1993 Pt III .… 13.64 Contracts (Privity) Act 1982 .… 1.2, 10.23 Contributory Negligence Act 1947 s 3(1) .… 10.15 Crimes Act 1961 s 2 .… 3.18 s 2(1) .… 6.37 s 48 .… 6.17 s 145 .… 14.54 s 316 .… 6.42 s 316(5) .… 6.43 Criminal Injuries Compensation Act 1963 .… 12.12

Criminal Justice Act 1985 s 19 .… 25.6 Criminal Records (Clean Slate) Act 2004 .… 19.8 Crown Proceedings Act 1950 .… 29.1 s 2(2) .… 29.2 s 6 .… 26.57, 27.48 s 6(1)(a) .… 29.3, 29.4 s 6(3) .… 26.57 Defamation Act 1992 .… 17.10 s 4 .… 17.2 s 5 .… 23.2 s 6 .… 18.13 s 8 .… 19.12 s 8(1) .… 19.2 ss 9-12 .… 19.13 s 10(1) .… 19.25 s 10(2)(a) .… 19.28 s 10(2)(b) .… 19.29 s 11 .… 19.22 s 12 .… 19.20 s 13 .… 19.32 s 13(2) .… 19.32 s 13(3)(b) .… 19.32 s 14(1) .… 19.33 s 14(2) .… 19.36 s 16 .… 19.40 s 16(2) .… 19.42 s 19 .… 19.66 s 19A .… 19.66 s 20(2) .… 19.57 s 21 .… 18.23 s 21(c) .… 18.26 s 22 .… 19.71 s 25 .… 19.69 s 28 .… 19.82 s 29(a) .… 19.69 s 30 .… 19.77 Sch 1 Pt II cl 12 .… 19.42 Diplomatic Privileges and Immunities Act 1968 .… 29.9 Dog Control Act 1996 s 61(1) .… 15.20 s 61(2) .… 15.20 s 63(1) .… 15.19 Domestic Actions Act 1975 s 3 .… 24.2 s 4(1) .… 24.9 Education Act 1989 s 139A .… 6.32 Employment Relations Act 2000 s 83 .… 21.1, 21.8

s 84 .… 21.1, 21.8 s 86 .… 29.10 s 99 .… 29.10 Evidence Act 2006 s 48 .… 19.4 Fair Trading Act 1986 .… 16.1, 23.3 s 2(1) .… 22.1, 22.7, 22.8 s 4(1) .… 22.6 s 9 .… 1.1, 1.4, 13.20, 20.3, 22.1, 22.6, 22.7 s 19 .… 17.14 s 43 .… 13.20, 17.14 s 43(5) .… 22.51 Pt I .… 22.1 Family Proceedings Act 1980 s 190 .… 11.53 High Court Rules r 78 .… 29.13 r 83 .… 29.17 Impounding Act 1955 s 26 .… 15.10 s 27 .… 15.8 Income Tax Act 2007 s CG6 .… 27.23 Incorporated Societies Act 1908 .… 29.11 Injury Prevention, Rehabilitation and Compensation Act 2001 .… 12.44 Insolvency Act 2006 s 217 .… 25.42 s 232 .… 27.42, 27.48, 29.20 s 304 .… 29.20 Judicature Act 1908 s 16A .… 14.6 s 87 .… 27.28 s 87(1)(a) .… 27.32 Land Transfer Act 1952 s 64 .… 14.44 Law Reform Act 1936 s 3(1) .… 11.53, 28.42 s 3(2)(a) .… 11.54, 27.12 s 3(2)(c) .… 11.55, 11.56 s 3(3)(b) .… 28.42 s 9 .… 29.20 s 17(1)(b) .… 29.30 s 17(1)(c) .… 29.33 s 17(2) .… 29.36 s 27(1)(c) .… 29.34 Pt I .… 11.53 Pt V .… 29.31 Law Reform Amendment Act 1996 .… 11.55 Legislature Act 1908 s 242 .… 6.53

Limitation Act 1950 s 4(6A) .… 19.74 s 4(6B) .… 19.74 Limitation Act 2010 .… 28.2 s 2(2) .… 28.31 s 2(3) .… 28.31 s 11 .… 28.3 s 11(3)(a) .… 28.29 s 11(3)(b) .… 28.29 s 14 .… 28.29 s 17 .… 28.14 s 15 .… 28.6 s 21 .… 5.14 s 29 .… 4.62 s 29(1) .… 4.42 s 29(2) .… 4.42 s 30 .… 4.42, 28.9 s 34(4) .… 28.34 s 44 .… 28.31 s 45 .… 28.32 s 46(a) .… 28.31 s 46(b) .… 28.31 s 46(c) .… 28.31 s 48 .… 4.42, 28.29 s 55 .… 28.41 Mental Health Act 1969 .… 6.49 Minimum Wage Act 1983 .… 12.48 Minors Contracts Act 1969 .… 29.19 Occupiers’ Liability Act 1962 .… 7.38 Partnership Act 1908 s 13 .… 29.14 s 15 .… 29.14 Penal Institutions Act 1954 .… 29.23 Prisons Act 1908 s 54 .… 29.23 Property Law Act 2007 s 333 .… 14.13 s 365(3)(a) .… 14.48 s 365(3)(b) .… 23.38 Property (Relationships) Act 1976 s 49 .… 29.15 s 51 .… 29.15 Social Security Act 1964 .… 12.48 Summary Proceedings Act 1957 s 19 .… 6.36 Pt 7 .… 6.52 European Union European Convention on Human Rights Art 8 .… 3.11

International Vienna Convention on Consular Relations Art 43 .… 29.9 Art 45 .… 29.9 Vienna Convention on Diplomatic Relations Art 31 .… 29.9 Art 32 .… 29.9 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929 Art 1 .… 12.40, 28.7 Art 17 .… 12.40 Art 21 .… 12.41 Art 29 .… 28.7 Art 35 .… 12.41 United States Federal Tort Claims Act 1946 s 2680(a) .… 7.32 American Restatement, Torts, (First) s 18 .… 2.23 Restatement, Torts (Second) s 8A .… 3.3 s 21(1)(b) .… 3.20 s 32 .… 3.4 s 50 .… 6.6 s 218 .… 4.46 s 237(F) .… 4.59 s 504 .… 15.6, 15.9 s 509 .… 15.14 s 552 .… 13.23 s 674 .… 25.21 s 829 .… 14.24 s 918(2) .… 21.21

Contents Preface to the Fifth Edition Preface to the First Edition Table of Cases Table of Statutes

PART I INTRODUCTION Chapter 1

General Observations

Difficulty in Defining a Tort Tort and contract Tort and restitution Tort and crime Aims of the Law of Torts Deterrence Compensation for losses suffered Loss distribution and insurance Economic analysis Structure of the Book

PART II INTENTIONAL INVASION OF PERSONAL AND PROPERTY INTERESTS Chapter 2

General Considerations Appertaining to Trespass

Trespass and Fault Trespass and Negligence Suits in both trespass and negligence

Burden of proof Negligent trespass or negligence: advantages and disadvantages Chapter 3

Intentional Torts to the Person

Battery State of mind of the defendant No consent by the plaintiff Character of the act of the defendant Damages Assault Character of the defendant’s conduct Plaintiff’s state of mind Intentional Physical Harm Other than Trespass to the Person False Imprisonment State of mind Character of the act Knowledge of the plaintiff Who is liable, the police officer or the aggrieved defendant who calls in the police officer? Damages Other Forms of Compensation Chapter 4

Goods

Introduction Conversion Interest of the plaintiff Bailment Lien and pledge

Sale Licensee Finder Jus tertii (third party rights) The subject matter State of mind of the defendant Acts of conversion Taking goods or dispossessing Destroying or altering Using Receiving Disposition without delivery Disposition and delivery Misdelivery by carrier Refusal to surrender on demand Goods lost or destroyed Residual acts amounting to a conversion Conversion as between co-owners Damages Limitation of actions Trespass to Goods Forms of trespass Character of the act of the defendant State of mind of the defendant The interest of the plaintiff Damages

Detinue Demand and detention Interest of the plaintiff When to choose detinue Period of limitations Damages Residual Torts: The Action on the Case Chapter 5

Land

Trespass Types of acts Subject matter State of mind of the defendant The interest of the plaintiff in the land Remedies Actions by Reversioners Chapter 6

Defences to Intentional Torts to the Person and Property

Mistake and Inevitable Accident Mistake as such is no defence Inevitable accident Consent Distinguished from assumption of risk What constitutes consent? Revocation of licences Withdrawal of consent Contributory Negligence Self-defence

Defence of the Person of Another Defence of One’s Property Defence of the Property of Another Necessity Distinguished from defence of property Nature and scope of the defence Recaption of Chattels Re-entry on Land Abatement of Nuisance Distress Distress for rent Distress damage feasant Replevin Discipline Children Passengers in public transport Arrest How arrests may be made Reasonable cause Force in arrest Manner of arrest Detention of suspected offender Execution of Process Statutory Authority Judicial Acts Acts Connected with Parliamentary Proceedings

Executive Acts Act of state Prerogative Military Acts Plaintiff a Wrongdoer

PART III NEGLIGENT INVASIONS OF PERSONAL, PROPERTY AND FINANCIAL INTERESTS Chapter 7

Duty of Care

Introduction Emergence of negligence as a separate tort Conduct must be negligent and not merely careless The Duty Concept in General Duty as a complex concept Rationalisation of the duty concept Creation of new duties A duty must be owed directly to the plaintiff Particular Examples of the Duty Concept Unborn plaintiffs Omissions Special relationships Existing relationships Duty to control the acts of third parties Statutory powers Occupiers’ liability Pure mental harm or ‘nervous shock’ No Duty Situations

Barristers ‘Wrongful conception’: ‘Wrongful life’ Protection of volunteers Liability for animals straying onto the highway Chapter 8

Breach of Duty

The Standard of Care Law, not fact Striking the balance The guiding principles of law The obviousness of the risk The relation between standard of care and duty The Reasonable Person Minors Old age; physical and mental infirmities Intelligence Knowledge Skill The circumstances of the plaintiff Degrees of care Reasonable anticipation Foreseeable negligence by third parties and plaintiffs General practice of the community Proving Negligence Province of judge and jury; law and fact The ‘no evidence’ rule Standard of proof; discharging the burden

Res Ipsa Loquitur Requirements The effect of res ipsa loquitur Chapter 9

Causation and Remoteness of Damage

Evidence of Causation Analysis of Causal Concepts Remoteness of Damage Foreseeable type of harm The means by which the harm was caused Existing physical states Ulterior harm Concurrent Causes Accelerated Injury or Death Successive Injuries The vicissitudes principle Taking your victims as you find them Chapter 10

Defences to Negligence

Contributory Negligence Conduct constituting contributory negligence The apportionment legislation Voluntary Assumption of Risk Meaning of voluntary assumption of risk Volenti distinguished from other defences When the plaintiff might be deemed to have assumed the risk Scope of risk Knowledge and appreciation

Voluntary act Chapter 11

Compensation in Personal Injury Actions

Awards of Damages to Living Plaintiffs Introduction Pecuniary damages Non-pecuniary damages Death Death as a cause of action Survival of causes of action Chapter 12

Alternative Sources of Compensation for Personal Injuries

Social Security Workers’ Compensation Criminal Injuries Compensation No-fault Transport Accident Compensation Schemes Victoria Tasmania Northern Territory New South Wales Compensation for Death or Injury from Civil Aviation Operations Comprehensive Accident Compensation in New Zealand Chapter 13

The Negligent Infliction of Purely Economic Loss

Introduction What constitutes ‘purely economic loss’? Reasons for judicial reluctance to impose liability Is there a difference between words and acts? Negligent Misstatements

When does a duty of care arise? To whom may the duty be owed? Conduct which constitutes a misstatement Extent of liability Negligent Acts or Omissions Losses consequent upon damage to another’s property Losses consequent on damage to the plaintiff’s property Defective property Economic loss and wills

PART IV INVASION OF PERSONAL AND PROPERTY INTERESTS BY CONDUCT NOT NECESSARILY INTENTIONAL OR NEGLIGENT Chapter 14

Nuisance

Nuisance as a Separate Tort Meanings of the word ‘nuisance’ Nuisance and negligence Private and public nuisance Nuisance and trespass Conclusion Is Damage Necessary? The Nature of the Invasion of the Interest in Land Physical injury to land Substantial interference with enjoyment Plaintiff putting land to a sensitive use Interferences which are not protected Duration of the interference

Locality ‘State of affairs’ Interference with property rights Unreasonableness The conduct of the defendant The seriousness of the interference with the plaintiff’s user of land Who Can Sue? Nature of the interest necessary Type of damages recoverable Who Can Be Sued? Creation of the nuisance Failure to remedy Landlord and tenant Must the Interference Complained of Emanate from Land? Defences Prescription The relevance of the conduct of the plaintiff Statutory authority Other defences Fire Remedies Damages Injunction Abatement Public Nuisance Elements

The relation between public nuisance and private nuisance Chapter 15

Animals

Cattle-trespass What comprises ‘cattle’ Character of the act Character of the conduct of the defendant Who is liable? Who may sue? Damages Defences The Scienter Action Two classes of animal Scienter in the case of ‘harmless’ animals Nature of the conduct of the defendant The character of the harm Who can be sued? Defences Statutory Liability for Dogs Nature of liability Type of damage Defences Chapter 16

Violation of Interests Protected by Statute

History The Basis of the Action What the Plaintiff Must Prove An obligation (and not merely a power) on the defendant

The statute must impose the burden on the defendant The statute protects the plaintiff’s interest by way of a cause of action in tort The harm suffered is within the risk Plaintiff one of the persons protected by the statute The conduct of the defendant was of such a character as to violate the statute Causation Defences The relation between criminal and tortious liability Voluntary assumption of risk Employer’s breach caused by employee’s conduct Contributory negligence Act of third party

PART V PROTECTION OF INTERESTS IN REPUTATION Chapter 17

Defamation: Introduction

The Complexities of the Tort Historical Development Defamation and the Australian Consumer Law Chapter 18

Elements of Defamation

What is Defamatory? In general The interpretation of defamatory statements: the innuendo Reference to the Plaintiff Who may be defamed? Identification of the plaintiff

Defamation of a group Publication What constitutes publication? Defendant unaware of defamatory nature of the statement Innocent disseminators Chapter 19

Defamation: Defences and Remedies

Justification What constitutes justification? Contextual truth Honest Opinion Matters of public interest Comment on true facts or privileged statements Comment must be honest Privilege Absolute privilege Qualified privilege Abuse of privilege Statutory qualified privilege Constitutionally protected privilege Offer of Amends Consent and Acquiescence Triviality Defences and Interstate Publication Remedies Damages Injunction

PART VI PROTECTION OF TRADING OR BUSINESS INTERESTS Chapter 20

The Economic Torts in General

Introduction Action for Loss of Services The nature of the relationship Measure of damages The future of this tort Chapter 21

Intentional and Unjustifiable Interference with Trade or Business

Inducing Breach of Contract Historical development State of mind of the defendant Kinds of contract What constitutes a breach? Knowledge of the contract What acts constitute an inducement? Damage Justification Remedies Unlawful Interference with Trade Intimidation The elements of the action Justification Remedies Conspiracy

Development of the tort Common elements of liability Conspiracy by unlawful means Conspiracy by lawful means Chapter 22

Statutory Protection Against Unfair Business Practices

Basis of Liability Intention or negligence not relevant To what entities does the Australian Consumer apply? ‘In trade or commerce’ Types of Conduct which Contravene the Statute Conduct which denigrates the plaintiff’s business Conduct which misleads the public regarding the business relationship between plaintiff and defendant Statements relied on by the plaintiff Remedies Injunction Damages Other compensatory orders Chapter 23

Injurious Falsehood, Passing Off and Deceit

Injurious Falsehood Passing Off Deceit History Comparison of deceit with negligence and statutory protection against misleading statements Conclusion

PART VII OTHER INTERESTS MERITING PROTECTION Chapter 24

Family Relations

Husband and Wife Parent and Child Rights of action in favour of a parent Rights of action against a parent Chapter 25

Misuse of Process

Malicious Prosecution Institution of proceedings Favourable termination of proceedings Absence of reasonable and probable cause Malice Limited categories of damage Collateral Abuse of Process Misfeasance in Public Office Holder of a public office Bad faith Damage Maintenance and Champerty Definition and application Justification and exception The need to show special damage

PART VIII REMEDIES AND PARTIES Chapter 26

Vicarious Liability

Importance of the Distinction Between Employees and Independent Contractors

Criteria for Distinguishing Employees from Independent Contractors No single factor conclusive Some particular cases examined Is There a Separate Category of Agent? Holding out of the agent by the principal Owner and driver of a motor vehicle Liability in Respect of an Independent Contractor Authorisation to commit a tort Torts where intentional or negligent conduct need not always be proved Reasonable care not taken Liability in Respect of Employees Theories of vicarious liability The course of employment Public employees and vicarious liability Chapter 27

Remedies

Damages Different types of damages Limitations on recovery Issues of quantification Plaintiff with different causes of action Injunction Chapter 28

Extinction of Remedies

Limitation Period of limitation Commencement of the limitation period Discretionary extension of the limitation period

Plaintiff under a disability Fraud and concealment Contribution between tortfeasors Dependants’ action under fatal accidents legislation Limitation periods and the conflict of laws Death Satisfaction Judgment Release Accord and Satisfaction Chapter 29

Parties

The Crown Meaning of ‘the Crown’ Vicarious liability Personal liability Violation of interest protected by statute Military operations Foreign States Diplomatic and Consular Officers Trade Unions Unincorporated Associations As plaintiffs As defendants Partners Husband and Wife Intellectually Disabled Persons

Minors The standard of care Liability for tort which is also a breach of contract Bankruptcy Liability Power to sue Assignees Convicted Persons Multiple Tortfeasors Categories Differences between the categories Effect of injured party bringing more than one action Contribution Proportionate liability Index

PART I Introduction Chapter 1

General Observations

[page 3]

CHAPTER 1 General Observations

Difficulty in Defining a Tort 1.1 It might be thought advisable at the start of a book to indicate the nature of the subject matter to be covered. However, no one has yet arrived at an adequate definition of the law of torts,1 and none will be attempted here. The word ‘tort’ comes from the Law French used in medieval England, and means no more than ‘wrong’. But that is of little help in defining the subject, as a crime or a breach of contract is also a ‘wrong’ in the legal sense. The most that can be said by way of delimiting the scope of this work is that it is concerned with the interests which a person has in bodily security or the protection of tangible property, financial resources or reputation which are protected by law and which are not exclusively within the fields of the law of contract, the law of restitution or the criminal law. It may be conceded at once that such a description of the subject matter of this book is of little assistance, as it fails to indicate the means by which one may determine whether or not an interest receives protection from the law. The description is also not entirely adequate, because although the law of torts provides protection for certain recognised interests, it may also be relevant, in considering whether liability ensues, to look to the nature of the conduct by which an interest has been invaded. Thus, a person’s economic and trading interests are well protected against intentional intrusion with torts such as inducing breach of contract or intimidation, but if the conduct of the defendant is negligent rather than intentional, the circumstances in which the law will provide protection are less clearly defined.2

The description offered above, it will be observed, seeks to differentiate tort liability from that imposed by the law of contract, the law of restitution and the criminal law. It is profitable to expand on those differences, by reference to the function and purpose of each branch of the law, in order both to arrive at a clearer understanding of what is comprehended within the law of torts and to underline the difficulties in adequately defining this area of the law. [page 4]

Tort and contract 1.2 As will be discussed in more detail in 1.10, the principal aim of the law of torts is to provide compensation for one who has been injured by another’s invasion of an interest deemed worthy of protection by the law. In this respect it is similar to the law of contract, one purpose of which is to allow for the payment of compensation when one’s interest in the performance of a contract remains unsatisfied. Such a similarity is scarcely surprising, given the common ancestry of both contract and many of the torts in the action on the case. There are, however, said to be a number of differences between liability in contract and in tort, although it is doubtful whether such differences will continue to create marked distinctions between the two areas of liability.3 Two of the supposed differences were summarised by Murphy J, in the Supreme Court of Victoria, when he said:4 Torts, or wrongs, are breaches of a duty owed generally to one’s fellow subjects, the duty being imposed by law and not as a consequence of duties fixed by the parties themselves.

The judge was apparently seeking to assert, with admirable brevity, (a) that tort duties are owed to the whole world, whereas contractual duties are owed only to the other contracting party; and (b) that tort duties are imposed by law while contract duties are determined by the parties. But it may be observed, in relation to the first of these suggested distinctions, that the tort duty to prevent purely economic loss by one’s negligent acts is owed only to the individual members of a determinate class of whom one has knowledge or the means of knowledge that an individual is likely to suffer such harm5 and,

conversely, with the statutory abrogation6 or judicial erosion7 of the doctrine of privity of contract, it is not only the parties to a bargain who may complain of its non-fulfilment. And, with respect to the second of Murphy J’s supposed distinctions, it must be borne in mind that many of the obligations under a contract are created by ‘implied’ terms rather than express promises — that is, duties imposed by law just as much as are tort duties8 — while the obligations of the law of torts are generally only imposed on those who choose to undertake a particular activity or enter into a special relationship with another.

1.3 A further difference which may be suggested between tort and contract is that the law of contract seeks to protect a single interest — that in the performance of a promise made by another — whereas the law of torts protects a diverse range of interests, from physical integrity to reputation. But this view is open to objection [page 5] on two grounds. First, the law of contract has never been concerned exclusively with the performance of promises, but has also served to protect one who has acted in reasonable reliance on the words or deeds of another. Although this reliance-based liability was disguised for a time by the use of fictions such as the unilateral contract, the collateral contract (or warranty) or the action for breach of warranty of authority, it is now more openly recognised in the form of promissory estoppel.9 Secondly, even when the law of contract protects the interest that a person has in the performance of a promise, it also serves to provide compensation for the injury done to the person,10 the property11 or the reputation of the promisee.12 There are, therefore, fewer differences between the law of contract and the law of torts than might at first sight be imagined. Indeed, there is a growing realisation that in a number of circumstances — particularly when a professional person undertakes services for a client, but also in the employment relationship — one might owe concurrent and co-extensive duties to another in tort and contract.13 Nevertheless, distinctions between the two remain. In most actions for breach of contract, the conduct of the party who has broken the contract — be it intentional, negligent or otherwise — is

irrelevant, whereas in most torts (with the exception of those discussed in Parts IV and V of this book) that fact is of crucial importance. And in many contract actions the plaintiff seeks to recover a specified sum of money, whereas the damages claimed in a tort action are generally unliquidated.

Tort and restitution14 1.4 The law of restitution is principally aimed at the restoration of benefits unintentionally conferred by one person on another, or the prevention of the unjustified enrichment of one at the expense of another.15 Illustrations of the application of those principles include the return of money paid under a mistake of fact16 or the payment for services provided other than by virtue of an enforceable contract.17 Although the one act may give rise to an action either in tort or in restitution (see 27.47), it might be thought that the two areas of law are dissimilar in their purposes and functions, the law of torts being primarily directed to compensation for the invasion of a protected interest. There are, nevertheless, areas of overlap even when these branches of the law are considered from a purposive approach. Thus, the common law action for passing off (see 23.5ff), and the correlative right to claim for an infraction of the Australian [page 6] Consumer Law s 18 or the Fair Trading Act 1986 (NZ) s 918 are available when the defendant has wrongfully taken advantage of the plaintiff’s presentation of goods to the public. The aim of the action is either to prevent the defendant from unjustifiably being enriched at the expense of the plaintiff, or requiring the defendant to account for the profits made from the wrongful exploitation of the plaintiff’s business reputation. Its purpose is no different from that of the law of restitution.

Tort and crime19 1.5 A number of the torts discussed in the following pages also constitute a

breach of the criminal law. In relation to some, the incidence of liability varies depending on whether the wrongdoer is sued in tort or prosecuted for a crime. So, for instance, a mistake as to the ownership of goods may provide exculpation from criminal liability for theft but not for tortious liability in conversion (see further 6.2); and the least touching of another without consent will constitute the tort of battery (see 3.2) but not necessarily the crime of assault. But in other cases, the incidence of liability is the same. Thus, when one brings the tort action commonly known as that for breach of statutory duty, on proof that the defendant has infringed a criminal statute, the latter’s state of mind is no more relevant in determining tortious liability than it is in fixing the accused with criminal responsibility.20 Similarly, the tort of public nuisance is actionable by one who has suffered special damage as the result of the defendant’s commission of a crime (see 14.54), and, in Queensland at least, both criminal and civil liability for defamation was, until 1995, provided for in that state’s Criminal Code: see 17.9.

1.6 But the function of the criminal law is quite different from the generally compensatory role assigned to the law of torts. It is the purpose of the criminal law to protect the interests of the public at large, and to punish those who act contrary to its dictates. Yet even viewed in this purposive light, one cannot draw a clear distinction between the two areas of law. The law of torts permits the award of exemplary damages for wrongs which are not also crimes — such as deceit, abuse of process and (in some instances) negligence — as well as for those which are, including trespass to the person and to goods and defamation. And one purpose at least of the award of exemplary damages is to punish the defendant for a highhanded disregard of the plaintiff’s rights.21 Indeed, so strongly do the courts regard the punitive element of such damages that they are not to be awarded if the defendant has already suffered a punishment under the criminal law.22 [page 7]

Aims of the Law of Torts23 1.7 If it is not possible adequately to define the law of torts, it has been suggested in the preceding pages that one may draw a rough and ready line of

demarcation around the subject by reference to its functions and purposes.24 It is intended now to consider more fully those aims. One such purpose is that of deterrence; it is of diminishing importance these days and will be dealt with first, in order to dismiss it from further consideration. The major function of tort law is to provide compensation for the losses which are the inevitable result of life in our increasingly complex and interrelated society and which are deemed worthy of reparation. This function is considered more fully below. If the principal aim of tort law is to provide compensation for many of the losses suffered through our modern way of life, that compensation will scarcely ever be effective unless the defendant is insured against liability. And insurance is a means of spreading the loss suffered by an individual among as wide a circle of society as possible. Hence the role of tort law as a means of distributing losses is discussed in 1.15–1.19. Considerations of loss distribution raise wider issues of the interplay of legal rules of liability with economic theories; these issues are referred to in 1.20–1.21.

Deterrence25 1.8 The actions in trespass — the direct and intentional invasion of the plaintiff’s interests in bodily security, tangible goods and land — were developed as an aid to the enforcement of the criminal law,26 and therefore as originally formulated had a strong element of deterrence. It is also likely that, as the tort of negligence developed during the nineteenth century, it was regarded as having a deterrent effect on behaviour. Employers, for instance, were shielded in large measure from such liability towards their employees by the three defences of common employment, contributory negligence and voluntary assumption of risk, no doubt for the unspoken reason that to expose them fully to liability would deter them from pursuing their entrepreneurial activities.27 But in the first decade of the twenty-first century the rules of the law of torts can have little deterrent effect on the activities of most people, except, perhaps, in so far as the remedy of the injunction remains available, because of the well-nigh universal availability, and use, of third party (liability) insurance. In most cases (certainly in relation to third party motor vehicle insurance and a home-owner’s public liability extension to house insurance)

not even the premiums are affected by the occasions, or extent, of liability, so that it can matter little to individuals whether or not they are found liable in tort for their activities. [page 8]

1.9 One area in which tort law may still exercise some function of deterrence is in its capacity to award exemplary damages, one purpose of such damages being, as mentioned in 27.10, to punish the defendant for his or her outrageous behaviour. And the High Court has observed, in New South Wales v Ibbett,28 in which police officers were found to have acted in a reprehensible way, that even though an award of exemplary damages was to be paid by the tortfeasors’ employer, the award served the purpose of bringing it home to ‘those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen’.29 But in those circumstances in which an award of exemplary damages is covered by the defendant’s insurance policy,30 their capacity to prevent such behaviour in the future will be minimised to a considerable extent.

Compensation for losses suffered 1.10 As people live and work together in society, it is inevitable that the activities of one will impinge deleteriously on another or many others. While any two people live on adjoining properties, one is likely to be harmed by the other either physically, or by loss or damage to his or her chattels, or by an inability to carry on life in seclusion and privacy. So long as two people (or companies) are in competition with one another for trade or business, one is likely to suffer from the success of the other. It is the principal function of the law of torts to determine when such harm is worthy of compensation, and, if it is judged so worthy, to oblige the one who caused the harm to make the necessary reparation.31 The determination of whether a particular type of harm should be compensated for is undertaken by considering the two interrelated factors of the interest of the plaintiff which has been invaded and

the nature of the conduct by which the invasion has taken place (that is, whether that conduct was intentional, negligent or accidental).

1.11 But it is difficult, if not impossible, to summarise with any adequacy those interests which are protected, or to describe the types of conduct the law will offer protection against. The law of torts, no less than any other branch of the law, is a creature of the society in which it operates, and must change with changing social values. Certainly, one can say that the interest which a person has in his or her reputation is, and has for centuries been, so highly prized that any intrusion thereon by defamatory words will entail liability even in the absence of an intention to defame or negligence in uttering the calumny. On the other hand, the interest which a person has in financial security has undergone a material increase in protection over the last few decades. Until the middle of the twentieth century, the only protection afforded was against intentional interferences — those in which the defendant intended to cause the financial harm which the plaintiff has suffered. The torts included deceit, [page 9] passing off and inducing breach of contract: see generally Chapter 20. But then, with the burgeoning of the tort of negligence after Donoghue v Stevenson in 1932, it was not long before financial security (economic loss standing alone) was protected first against reliance on negligent words and then if harm to that interest was suffered as a result of the commission of a negligent act: see Chapter 13. The final stage in this development was reached by the statutory proscription against conduct in trade or commerce which is misleading or deceptive: see Chapter 22. This legislative provision primarily protects the plaintiff’s economic resources, but all that is relevant is whether the defendant’s conduct was misleading or deceptive — the court is not concerned with whether there was an intention to cause loss to the plaintiff, or a lack of care in the defendant’s conduct. A further instance of change in the pattern of liability by reference to the nature of the defendant’s conduct relates to a person’s interest in enjoying his or her land free from the disturbance of others. While the tort of nuisance protects that interest against positive acts of the defendant irrespective of

whether the intrusion was intentional, negligent or accidental, if the interference arises from the defendant’s omission, the latter will be liable only if the failure to act was the consequence of a lack of reasonable care: see 14.40. Conversely, and particularly in Australia, the nature of the occupier’s exposure to liability in relation to visitors to his or her property has undergone radical change. The High Court has effectively stripped the occupier of the special protection which had for so long been enjoyed so that, in place of the graded duties of care owed to different classes of entrant, one and the same duty is now owed to all: see 7.37.

1.12 The above discussion has been concerned with changes in the law resulting from alterations in the nature of conduct which is necessary or sufficient to found liability. But the law also goes through a slow transformation as new interests are deemed worthy of protection, and interests which, in a former age, were so treated are regarded in a different light with changes in social values. For instance, the interest which a father, as head of the household, had in the physical integrity of his wife, children and domestic servants was regarded as meriting protection against a negligent invasion by a third party, and hence he was accorded an action for loss of servitium and consortium. But, as is explained in 20.10 and 24.3, this interest is no longer regarded as appropriate for protection in many jurisdictions, and has been abolished by legislation. And, conversely, it was only during the course of the twentieth century that it was thought proper for a severe intrusion on one’s psychological well-being by the negligence of another to be the subject of a tort action — that for pure mental harm or ‘nervous shock’: see 7.41. Furthermore, in the last few decades, protection against this type of harm has extended to include some instances of mental suffering falling short of nervous shock: see 27.7. The right to be left alone, to live one’s life as one wishes without intrusion from the rest of society, is an interest which is in the process of being protected by judicial decision in New Zealand,32 whereas the Australian Law Reform Commission has proposed the introduction of a statutory cause of action for a serious invasion of privacy.33 And, while a land-owner is protected against intrusions on to that land either by people

[page 10] or objects entering thereon,34 or by intangibles such as noise or smells disturbing the enjoyment of the property,35 he or she is not protected against such intrusions on enjoyment as the blocking of the view (see 14.13), or broadcasting to the world at large the activities which take place there.36

1.13

A further interest which was recognised briefly as worthy of protection, but has subsequently been decisively rejected, relates to the way in which a contract is performed. Underlining the growing convergence between tort and contract discussed in 1.2ff was the acceptance by one superior court of a possible right of action in tort for the breach of an implied contractual term to carry out the obligations under the bargain in good faith. In Gibson v Parkes District Hospital,37 Badgery-Parker J in the Supreme Court of New South Wales refused to strike out a statement of claim alleging that the plaintiff’s employer and that employer’s workers’ compensation insurer were in breach of a duty to act in good faith in processing a workers’ compensation claim. But that case remains the singular example, in Australia and New Zealand, of acceptance of this form of liability. A statement of claim alleging breach of the same duty of good faith was struck out by McDonald J in the Supreme Court of Victoria, in Gimson v Victorian Workcover Authority,38 and by McMurdo J in Lomsargis v National Mutual Life Association of Australasia,39 as disclosing no reasonable cause of action and the New South Wales Court of Appeal, in CGU Workers Compensation (NSW) Ltd v Garcia,40 allowed an appeal from a District Court judge who had permitted a similar statement of claim to stand.

1.14 One interest which has not yet been referred to is that in one’s own physical integrity — the right to be protected against physical injury caused by another member of society. This is, of course, an interest which the law prizes most highly and which has received protection since the earliest times, with the torts of trespass to the person (see Chapter 3) and negligence. And since Donoghue v Stevenson there has been a steady increase in the range of circumstances in which that interest will be protected against intrusion by another, so that today there are but a handful of circumstances where the policy of the law dictates that one who, by carelessness, has brought about physical injury to another does not owe to that other a duty to avoid that

harm: see 7.56ff. There is a growing feeling, however, that in the protection of physical integrity, the law of torts is proving unequal to the task. While the standard of care expected of, for example, manufacturers of consumer goods, employers and motorists has risen inexorably, the common law still requires only that they observe reasonable care in all the circumstances of the case. Strict liability, imposed despite the defendant having taken all the precautions that were reasonably available, is generally a creation of [page 11] statute and not judge-made law.41 And, not only must the injured plaintiff show that the one from whom recompense is sought has fallen below the required standard of care, he or she must also demonstrate that it was the defendant who caused the injuries. This task may not prove to be too difficult if the injuries result from a road accident — although here the plaintiff is likely to be denied some part of the appropriate compensation on the grounds of contributory negligence42 — but it may assume a much greater barrier to success if the injuries are alleged to arise, for instance, from the plaintiff’s employment. An employee who has had a number of employers may find it well nigh impossible to show that the conduct of one in particular caused the injury. However, the House of Lords, at least, has acknowledged that there are exceptional circumstances which cannot be neatly accommodated within conventional causation principles, but where good reason exists for departing from such principles to bridge the evidentiary gap.43 Another limit on the ability of a plaintiff to recover compensation is that he or she must show some recognisable physical or psychiatric harm. Anxiety about the possibility of developing a fatal disease is not regarded as an injury capable of giving rise to an action in negligence.44 Furthermore, even if the injured person succeeds in establishing liability, the damages will be paid in a lump sum which is intended to provide compensation for all the harm which may be suffered in the future as a result of the accident.45 Society is becoming more complex, new technologies are evolving and the population continues to increase both in size and density. For these reasons

and many more, the risk of personal injury to each member of society grows steadily greater. But the law of torts as developed by the judges must of necessity rely on principles which had their genesis in a simpler age. Hence statutory schemes have been created which do away with concepts such as fault or duty, and place the burden of accidental injury on society as a whole. The first such scheme to be introduced into the common law world was for the compensation of those injured at their place of work. This has been replaced in New Zealand by the comprehensive provision of rehabilitation and compensation for those who suffer personal injury in that country.46 No matter what the cause of the injury — be it the intentional, negligent or accidental act of another, or the victim’s own lack of care — compensation is provided automatically by the state. The costs are borne partly by employers (who will pass these costs on to [page 12] consumers of their products), partly by general revenue from taxation and partly by the owners of motor vehicles. Although a similar scheme was proposed in Australia in 1974,47 it did not win approval, and no-fault compensation schemes are limited to the victims of industrial injuries and, in Tasmania, Victoria and the Northern Territory, those who are injured on the roads.

Loss distribution and insurance 1.15 It has been noticed in the preceding part of this chapter that one of the functions of tort law is to shift a loss which the plaintiff has suffered on to the defendant, if the plaintiff has undergone an injury to an interest deemed worthy of protection. But while the rules of law may do no more than transfer a loss, the way in which the law operates in practice is usually48 to spread the loss among as wide a cross-section of the population as possible. This is achieved through insurance. The insurance may be one of two types — indemnity (or first party), under which the insurer indemnifies the insured for a loss which the insured has suffered, and liability (or third party), under which the insurer meets the liability which the insured has incurred towards

another. The fact that insurance of both types is widespread these days affects the application of legal rules in a variety of ways. A householder who has a window broken by a child from next door is likely merely to claim on a (first party) home-owner’s policy, and no question of legal liability will arise. But if the damage to the house is substantial, and someone appears to be responsible for it, while the householder is likely to do no more than recover the loss from the insurer, the latter will, in all probability, seek to be reimbursed by the one who was responsible for the damage. Having discharged its obligations under the policy, the insurance company is subrogated to any rights which the insured had against a tortfeasor. Many of the principles of tort law have been developed as a result of insurers exercising their subrogated rights and seeking to establish liability in another for a loss.49 Conversely, if one is injured — whether the injury be to one’s person, property or reputation — there is little point in seeking to exercise even an undoubted legal right unless the wrongdoer has liability insurance. Few people have the financial resources to meet even a modest award of damages made against them, together with the costs involved; it is useless for a plaintiff to bankrupt a defendant in the course of asserting legal rights, as the former will never receive the compensation adjudged due and payable by the latter. It was in order to ensure the reality of recompense for the victims of road accidents that third party insurance has been compulsory in Australia for 75 years or more.

1.16

But while the fact of insurance may have a decisive effect in determining whether a tort action is commenced, its direct effect on fashioning rules of law is [page 13] less easy to state.50 While some judges occasionally refer to the availability to the defendant of third party insurance as a reason for fixing that person with liability, others (though even more rarely) point to the fact that the plaintiff is likely to have first party insurance so that the loss which has been suffered

can be spread through that cover and not transferred to the defendant. But in the great majority of cases the availability and effect of insurance is ignored. In cases involving personal injury, Lord Denning MR, in the English Court of Appeal, suggested that the drivers of motor vehicles had been expected to attain a steadily increasing standard of care, and held that a learner driver is expected, in law, to show the skill and care of an experienced driver, because the driver is compulsorily covered by third party insurance.51 Much more recently, the High Court of Australia, in Imbree v McNeilly,52 reversed the principle it had adopted in Cook v Cook,53 and took the same view as the English Court of Appeal as to the standard of care of a learner driver, but members of the court differed as to the effect of insurance. Kirby J said that ‘the universal existence of compulsory third party motor vehicle insurance in this country … is the ingredient that tips the balance in favour of a reexpression of the common law of Australia’.54 On the other hand, Gleeson CJ observed that although ‘[w]ithout doubt insurance is a major factor in the practical operation of the law of negligence as it applies to motor vehicle accidents’,55 ‘third party insurance … does not … provide a step in a process of reasoning towards an answer to the particular question [of common law principle] that arises for decision in this appeal’.56 And, where the question at issue was a father’s possible liability (along with a third party) for personal injury suffered by his son, the Full Court in South Australia found that the father owed no duty to his son. But, while King CJ arrived at that conclusion partly on the basis that the father would be unable to insure himself against that liability, Legoe J considered that the availability (or lack) of insurance was not a relevant factor.57

1.17 Reference to the role of insurance in determining liability for personal injury has also been made in relation to a claim for damages in which the plaintiff had received gratuitous nursing services from the defendant. During the 1970s and 1980s, it had been held that the defendant should not have to provide, as part of the damages award, the market value of those services, as that would impose a double burden on him or her — once in providing the services and again in paying the damages. But both the New South Wales Court of Appeal, in Lynch v Lynch,58 [page 14]

and subsequently the High Court of Australia, in Kars v Kars,59 pointed out that such reasoning ignored the fact that, in all but the most exceptional cases, the defendant would have been insured and hence the insurer would have borne the second of the above burdens.60 However, the reasoning adopted in those cases has been rejected both in England61 and Canada.62

1.18 In assessing the incidence of liability in cases where the plaintiff’s complaint is of damage to property, such brief references to insurance as there are tend in favour of denying liability, because the plaintiff is assumed to have insured the property in question, and the losses may thus be spread through that first party insurance,63 although on occasion this assumption is questioned, in the absence of any evidence on the issue,64 because of the inherently speculative nature of assessing the impact of any one decision on the future conduct of a wide range of parties.65

1.19 In determining whether a defendant should be liable for the economic loss caused by negligent words, there are dicta which favour the imposition of liability because of the assumed ability of the defendant to obtain protection with liability insurance,66 remarks which indicate that liability should be denied because of the inability of the defendant to take out insurance,67 and at least one judicial view that any consideration of the impact of insurance should be resisted in view of the considerable uncertainty surrounding the whole issue.68 And, if the plaintiff’s economic loss is caused by a negligent act, there is a view favouring liability, because third party insurance for the defendant is feasible while first party insurance for the plaintiff is not,69 another view which holds first party insurance to be common and hence a factor against liability,70 and yet a third which regards the presence or absence of either form of insurance not to be a concern of the court.71 [page 15]

Economic analysis 1.20 The above discussion of the role of insurance leads inevitably to a wider consideration of the interplay of legal rules and economic theory. The

question arises whether the principles of the law of torts should be fashioned in order to ensure not only that losses are spread but also that they are distributed in a way most apposite to maximise economic efficiency. There has been considerable academic interest in recent years in the role that economic theory should play in fixing the content of legal norms.72 Much of this interest has centred on tort law, or aspects of it,73 which has led in turn to occasional expressions of judicial interest in the interplay of law and economics.74 The principal objective of this branch of the law, it has been said, should not be to eliminate all loss (for that would be impossible) but to deter conduct resulting in damage where the cost of prevention is less than the cost of the loss or damage occurring. Thus, it is proper that the law has placed upon employers the (practically strict) liability for injuries in the workplace. The employer is obviously better placed than the employee to spread the losses incurred; the employer can (and does) insure against the risk of accidents, and then passes on the cost of that insurance to the consumers of its products. The employer is also clearly better able than its employees to prevent accidents occurring in the first place; by allocating the responsibility for those accidents to the employer, there is an obvious economic incentive for that party to see to their reduction. Again, if it were thought that the manufacturers of consumer products should be subject to a regime of strict liability rather than one based on negligence, such a change should be undertaken only if it could be shown that the extra cost thereby imposed on manufacturers (such as more effective quality control, increased premiums on insurance, etc) did not exceed the benefits to consumers flowing from (presumably) fewer injuries and easier access to compensation.75 Or, as a further illustration, if the issue were the range of people to whom a company auditor should be liable if he or she were careless in auditing the company’s annual accounts, reference should be made to such matters as the cost to the auditor of the services provided and his or her ability to recoup those costs from the company or others in order to arrive at an economically optimal level of liability.76

1.21 Economic analysis is a useful tool to attain understanding of some of the torts, principally negligence. It offers a measure by which our often confused system of law may be judged and possibly found wanting. But economic analysis can never be a complete explanation of the purposes of the law, and judges have scarcely ever relied on it when determining which path

the law should take. Economic efficiency is no more than one of the several, and sometimes contradictory, objectives of the [page 16] law, and should never, it is suggested, exclude or predominate over the perceived needs of justice to the individual.77 As Gummow J put the point in Perre v Apand Pty Ltd,78 ‘the law of tort is concerned with more than the economically efficient allocation of risk and transfer of loss’.

Structure of the Book 1.22 Having considered some of the purposes of the law of torts, it remains to describe the way in which they are dealt with in the succeeding chapters. Like any aspect of the common law, torts can only be understood in its historical context. That fact, together with the dual aims of tort law in determining what interests are worthy of protection, and against what types of conduct those interests should be protected, has shaped our approach to the subject. Part II deals with those torts which have developed from the action in trespass. It concerns invasions of interests in personal security, movable property and land, but is kept discrete because of its essentially unitary historical basis. Part III is devoted to those circumstances where an interest has been invaded by the negligent conduct of the defendant. Like Part II, it is not confined to any one particular interest, dealing as it does with injury to the person, to property and to economic interests. It is in this Part that the tort of negligence, with all its ramifications, is considered, together with the issue that continues to play a dominant part in relation to personal injury caused by another’s negligence — the assessment of the damages recoverable. Part IV groups together those torts where the conduct of the defendant may be intentional or negligent, but usually has neither of those attributes; it is concerned with the circumstances where liability is stricter than the obligation to take reasonable care. Part V, like the two succeeding parts, acquires its theme from the interest protected — that which all people have to retain their reputation unsullied by imputations. Part VI is concerned with the circumstances in which one

obtains protection for one’s economic interests, but excluding those where financial harm is caused by another’s negligence, that exclusion being made because of the differing historical bases for the various torts. Part VII concludes the consideration of the various interests protected by the law of torts; some, like the action for seduction or loss of consortium, are obsolescent; others, such as the action for misfeasance in public office, are still in the process of developing. Part VIII is concerned with the remedial aspects of this branch of the law: when one person may have to provide the remedy for another’s wrongdoing by the application of principles of vicarious liability; what types of remedies are available; when might liability be extinguished; and which parties (if any) are, by their status, granted complete or partial immunity from liability. _______________ 1.

For a detailed consideration, and rejection of various definitions see Winfield, Province of the Law of Tort, 1931, Chs 1 and 2. For a discussion of the circumstances in which rights of action created by statute have been treated as torts, see Campbell, ‘Contribution, Contributory Negligence and Section 52 of the Trade Practices Act — Part II’ (1993) 67 ALJ 177 at 177–85 and Mathieson v Workers’ Compensation Board [1990] 2 Qd R 57 (FC).

2.

See further 13.8ff. It may be observed that, in relation to the particular example of an invasion of the plaintiff’s economic and trading interests, if that invasion is constituted by the defendant’s misleading or deceptive conduct, the nature of the conduct is irrelevant: see Australian Consumer Law s 18 and Fair Trading Act 1986 (NZ) s 9, discussed in Chapter 22.

3.

There is a great wealth of writing on the differences between, and similarities of, liability in contract and tort. Some of the more recent additions include: Reynolds, ‘Contract and Tort: The View from the Contract Side of the Fence’ (1993) 5 Canta LR 280; Fleming, ‘Tort in a Contractual Matrix’ (1995) 3 Tort L Rev 12; Swanton, ‘Concurrent Liability in Tort and Contract: The Problem of Defining the Limits’ (1996) 10 JCL 21.

4.

Macpherson & Kelley v Kevin J Prunty & Associates [1983] 1 VR 573 at 587 (FC).

5.

Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; see further 13.45ff.

6.

Law of Property Act 2000 (NT) s 56; Property Law Act 1974 (Qld) s 55; Property Law Act 1969 (WA) s 11(2); Contracts (Privity) Act 1982 (NZ); and see Contracts (Rights of Third Parties) Act 1999 (UK).

7.

See, in general, Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574 and, in particular, Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687; Gartside v Sheffield, Young & Ellis [1983] NZLR 37 (CA); White v Jones [1995] 2 AC 207; 1 All ER 691 (HL). See further 13.14, 13.79.

8.

Cf Hawkins v Clayton (1988) 164 CLR 539 at 582–3; 78 ALR 69 at 100–1 per Deane J.

9.

See generally Greig and Davis, The Law of Contract, 1987, Ch 4.

10.

See, eg, Grant v Australian Knitting Mills Ltd [1936] AC 85 (PC); Godley v Perry [1960] 1 All ER 36.

11.

See, eg, Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791; 1 All ER 525 (CA).

12.

See, eg, Marzetti v Williams (1830) 1 B & Ad 415; 109 ER 842; Bailey v Bank of Australasia (1906) 6 SR (NSW) 686 (FC); Hill v National Bank of New Zealand Ltd [1985] 1 NZLR 736 (wrongful dishonour of a cheque) and generally Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 523–5 per Wilcox J (Fed Ct).

13.

See, eg, Bryan v Maloney (1995) 182 CLR 609 at 620–1; 128 ALR 163 at 167 per Mason CJ, Deane and Gaudron JJ; Central Trust Co v Rafuse (1986) 31 DLR (4th) 481 (SCC); Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 All ER 506 (HL); Frost & Sutcliffe v Tuiara [2004] 1 NZLR 782 (CA).

14.

Tapsell, ‘The Negligence Juggernaut and Unjust Enrichment’ (1997) 16 Aust Bar Rev 79.

15.

See generally Mason, Carter and Tolhurst, Mason and Carter’s Restitution Law in Australia, 2nd ed, 2008, Ch 1.

16.

Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662; 78 ALR 157.

17.

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; 69 ALR 577.

18.

Considered in Chapter 22.

19.

Stapleton, ‘Civil Prosecutions — Part 1: Double Jeopardy and Abuse of Process’ (1999) 7 TLJ 244; ‘Part 2: Civil Claims for Killing or Rape’ (2000) 8 TLJ 15.

20.

On the requirements for the action in tort, see 16.10.

21.

On exemplary damages generally, see 27.10.

22.

Gray v Motor Accident Commn (1998) 196 CLR 1; 158 ALR 485; Daniels v Thompson [1998] 3 NZLR 22 (CA); see further 27.13.

23.

Cf Abel, ‘A Critique of Torts’ (1994) 2 Tort L Rev 99 who doubts whether the law of torts currently fulfils any of its aims adequately.

24.

See, eg, Hawkins v Clayton (1986) 5 NSWLR 109 at 138 per McHugh JA (CA).

25.

On the role of deterrence generally in the law of torts, see Williams and Hepple, Foundations of the Law of Tort, 2nd ed, 1984, pp 138–42 and for a discussion of empirical studies on the possibly deterrent effect of tort law see Harris, ‘Can the Law of Torts Fulfil its Aims?’ (1990) 14 NZULR 113 at 115–19.

26.

See, in relation to the tort of assault, 3.15.

27.

Until 1880 employers were unable to obtain liability insurance: see Davies, ‘The End of the Affair: Duty of Care and Liability Insurance’ (1989) 9 Legal Studies 67.

28.

(2006) 229 CLR 638; 231 ALR 485.

29.

Ibid at [51], quoting with approval the comments of Priestley JA in Adams v Kennedy (2000) 49 NSWLR 78 at [15].

30.

Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188; it appears from contemporary newspaper reports that the exemplary damages awarded in a negligence action for the defendant’s reckless disregard of the plaintiff’s rights (Midalco Pty Ltd v Rabenalt [1989] VR 461 (FC)) were paid for by the defendant’s insurers.

31.

Wright, ‘Introduction to the Law of Torts’ (1942) 8 Camb LJ 238. For a discussion of the principles which should guide this process, see Stapleton, ‘In Restraint of Tort’ in Birks (ed), The

Frontiers of Liability, 1994, Vol 2, p 83. 32.

Television New Zealand Ltd v Rogers [2008] 2 NZLR 277 (SC NZ); see 17.4.

33.

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) Ch 78.

34.

By the tort of trespass, discussed in Chapter 5.

35.

By the tort of nuisance, considered in Chapter 14.

36.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, and see Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902.

37.

(1991) 26 NSWLR 9.

38.

[1995] 1 VR 209.

39.

[2005] 2 Qd R 295.

40.

(2007) 69 NSWLR 680.

41.

For example, the liability of a supplier of goods to a consumer for deficiencies in those goods, imposed by the Australian Consumer Law Pt 3-2 Div 1, and the liability of the owner of a dog, as to which see 15.19ff. One instance of strict liability for personal injury is the action for breach of statutory duty, discussed in Chapter 16. See also Stoljar, ‘Concerning Strict Liability’ in Finn (ed), Essays on Torts, 1989, p 267.

42.

See, eg, New South Wales Law Reform Commission, Report on a Transport Accident Scheme for New South Wales, LRC 43/1, 1984, Vol 1, 3.22–3.24; Harris et al, Compensation and Support for Illness and Injury, 1984, pp 91–2. And see generally Chapter 10.

43.

Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; [2002] 3 All ER 305; Barker v Corus UK Ltd [2006] 2 AC 572; 3 All ER 785; see generally 9.3.

44.

Rothwell v Chemical & Insulating Co Ltd; Re Pleural Plaques Litigation [2008] 1 AC 281; [2007] 4 All ER 1047 (HL). For a trenchant criticism of this approach, see Voytiakis, ‘The Great Illusion: Tort Law and Exposure to Danger of Physical Harm’ (2009) 72 MLR 909.

45.

The difficulties of providing fair compensation for personal injuries by the payment of a lump sum are adverted to in 11.3. For a comprehensive attack on the common law as a means of adequately protecting the individual’s interest in personal integrity, see Cane, Atiyah’s Accidents, Compensation and the Law, 7th ed, 2006.

46.

These schemes, and other sources of compensation for personal injury and death apart from the law of negligence, are described in Chapter 12.

47.

National Compensation Bill 1974 (Cth); see Palmer, Compensation for Incapacity, 1979, Chs 10 and 11.

48.

At least one exception is an action for trespass to land where, although damages are claimed, the real intention of the plaintiff may be to establish title to land.

49.

For a classic illustration see the two Wagon Mound cases: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388; 1 All ER 404 (PC) and Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617; [1966] 2 All ER 709 (PC), which established the current principles of remoteness of damage: see 9.7.

50.

See generally Derrington, ‘The Effects of Insurance on the Law of Damages’ in Finn (ed), Essays on Damages, 1992, p 153 and, for a discussion of the history of the relationship between liability

and insurance therefor, see Davies, ‘The End of the Affair: Duty of Care and Liability Insurance’ (1989) 9 Legal Studies 67. 51.

Nettleship v Weston [1971] 2 QB 691 at 699–700; 3 All ER 581 at 586; see also to the same effect Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 244 per Kirby P (CA); Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 518 per Kirby P (CA); and, on the general desirability of imposing an increased standard of care for those accepted as having third party cover, Benning v Wong (1969) 122 CLR 249 at 304 per Windeyer J.

52.

(2008) 236 CLR 510; 248 ALR 647.

53.

(1986) 162 CLR 376; 68 ALR 353; see further 8.24.

54.

(2008) 236 CLR 510; 248 ALR 647 at [143].

55.

Ibid at [22].

56.

Ibid at [23].

57.

Robertson v Swincer (1989) 52 SASR 356 at 361 per King CJ, at 370 per Legoe J; see also Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820.

58.

(1991) 25 NSWLR 411 at 419–20 per Clarke JA.

59.

(1996) 187 CLR 354 at 381; 141 ALR 37 at 56.

60.

See also Rosecrance v Rosecrance (1995) 105 NTR 1.

61.

Hunt v Severs [1994] 2 AC 350 at 363–5; 2 All ER 385 at 395 per Lord Bridge.

62.

Dobson v Dobson (1999) 174 DLR (4th) 1 at [71]–[74] (SCC).

63.

Lamb v Camden London Borough Council [1981] QB 625 at 637–8; 2 All ER 408 at 415–16 per Lord Denning MR (CA); Rich (Marc) & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 at 239–40; [1995] 3 All ER 307 at 330–1 per Lord Steyn, with the concurrence of Lords Keith, Jauncey and Browne-Wilkinson; Mayfair Ltd v Pears [1987] 1 NZLR 459 at 462 per Cooke P (CA); Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 at [253] per Kirby J.

64.

Rich (Marc) & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 at 228–9; [1995] 3 All ER 307 at 320–1 per Lord Lloyd (dissenting).

65.

WD & HO Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 352–3 per Mason P (CA).

66.

Scott Group Ltd v McFarlane [1978] 1 NZLR 553 at 572 per Woodhouse J (CA); Shaddock (L) & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 at 250–1; 36 ALR 385 at 404–5 per Mason J.

67.

Morgan Crucible Co plc v Hill Samuel & Co Ltd [1991] Ch 295 at 302; [1990] 3 All ER 330 at 335 per Hoffmann J.

68.

McHugh J in Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 282; 142 ALR 750 at 781 and Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [130].

69.

Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 at 419 per Woodhouse J (CA); see also Seale v Perry [1982] VR 193 at 237–8 per McGarvie J (FC).

70.

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [1101] per Gillard J; and see Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 at 38; [1972] 3 All ER 557 at 563–4 per Lord Denning MR (CA).

71.

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 580–1; 11 ALR 227 at 264–5 per Stephen J; and see Murphy v Brentwood District Council [1991] 1 AC 398 at 472; [1990] 2 All ER 908 at 923 per Lord Keith (HL); but cf Stephen J’s favourable reference to theories of loss distribution generally in Griffiths v Kerkemeyer (1977) 139 CLR 161 at 176; 15 ALR 387 at 399.

72.

See, eg, Burrows and Veljanovski, The Economic Approach to Law, 1981; Ogus and Veljanovski, Readings in the Economics of Law and Regulation, 1984; Harris, Campbell and Halson, Remedies in Contract and Tort, 2nd ed, 2002.

73.

Calabresi, The Cost of Accidents, 1970; Posner, The Economic Analysis of Law, 8th ed, 2011; Partlett, Professional Negligence, 1985.

74.

See, eg, Cekan v Haines (1990) 22 NSWLR 296 (CA), noted by Fleming (1992) 108 LQR 9; Urban Transit Authority v Purcell (1994) 82 LGERA 284 at 288–9 per Mahoney AP (NSW CA); Morgan Crucible Co plc v Hill Samuel & Co Ltd [1991] Ch 295 at 303; [1990] 3 All ER 330 at 335 per Hoffmann J.

75.

Cf Australian Law Reform Commission, Product Liability: Economic Impacts, ALRC Product Liability RP 2, 1989 and Economic Impact of Revised Proposals, ALRC Product Liability RP 2A, 1989.

76.

Bishop, ‘Negligent Misrepresentation Through Economists’ Eyes’ (1980) 96 LQR 360; Markesinis and Deakin, ‘The Random Element of their Lordships’ Infallible Judgment’ (1992) 55 MLR 619.

77.

See also Sir Anthony Mason, ‘Law and Economics’ (1991) 17 Mon LR 167.

78.

(1999) 198 CLR 180; 164 ALR 606 at [171].

PART II Intentional Invasion of Personal and Property Interests Chapter 2

General Considerations Appertaining to Trespass

Chapter 3

Intentional Torts to the Person

Chapter 4

Goods

Chapter 5

Land

Chapter 6

Defences to Intentional Torts to the Person and Property

[page 19]

CHAPTER 2 General Considerations Appertaining to Trespass

2.1 Part II of this book is largely devoted to an examination of the different forms of trespass. Before proceeding on this task, one may usefully consider two matters of general importance with regard to all these forms: the extent to which the element of fault is a necessary component of trespass, and the relationship of trespass to negligence.

Trespass and Fault 2.2 It is a truism to say that trespass, whether to the person, land or goods, cannot be committed by an involuntary act; fault in some form is required, and we find as far back as the year 1616, it was held1 that ‘no man shall be excused from trespass … except it may be adjudged utterly without his fault’.2 It follows from this that trespass is not a tort of strict liability but one based on either intentional or negligent conduct. This is exemplified by the categorical statement of Diplock J in Fowler v Lanning3 to the effect that: [T]respass to the person does not lie if the injury to the plaintiff, although the direct consequence of the act of the defendant, was caused unintentionally and without negligence on the defendant’s part.

While it is unfortunate that, in reaching this decision, no attempt was made to deal with several early authorities which pointed to strict liability,4 nonetheless the learned judge was clearly supported by a series of important cases which examined the problem of accidental trespass,5 the cumulative effect of which has been to establish that, in the absence of negligence, a suit

alleging trespass based on an unintentional act will not now succeed. [page 20]

2.3 On one reading of the judgment in Williams v Milotin6 it might seem that, in Australia, fault is not always a requirement, for the High Court in that case appeared to distinguish in this regard between trespass committed on and off the highway7 and to limit the need to prove fault to trespass on the highway by its statement that ‘in the absence of intention of some kind or want of due care, a violation occurring in the course of traffic in a thoroughfare is not actionable as trespass’ (authors’ emphasis).8 Any such interpretation must be tempered by the fact that the statement was not made in the context of analysing whether fault in one or other of its forms was required: the court was simply focusing on the question whether a claim in trespass might be brought for an accident involving negligence on the highway. The need in highway cases to prove that the damage was caused either by an intentional act or by negligence is well established. In Nickells v Melbourne Corporation,9 for example, Dixon CJ had said that: [I]nvoluntary trespass to land is not always an actionable wrong. Just as in trespass to the person and in trespass to goods it has come to be the law that an unintentional injury to or interference with another’s person or property on the part of the user of a highway is not actionable in the absence of negligence, so, if, in the course of any reasonable use of a public way, a man unintentionally damages neighbouring premises, the law does not hold him liable as a trespasser unless he has been guilty of negligence.10

Using the opportunity which presented itself in the case of McHale v Watson,11 the High Court held that liability for trespass in non-highway cases is likewise dependent upon the existence of negligence in circumstances where the action leading to the injury cannot be regarded as intentional. On the facts, the infant plaintiff had been injured when she was struck in the eye by a sharpened piece of metal thrown by the infant defendant. The claim against the defendant was framed in both negligence and trespass. Windeyer J, sitting in the original jurisdiction of the court, explicitly agreed with the concession of counsel that ‘the plaintiff could not succeed in trespass if what the defendant Barry Watson did was done without intent that the thing he threw should hit her and without negligence on his part’.12

2.4 Consistently with the approach of the High Court in McHale v Watson,

but quite independently of it, the Supreme Courts in different Australian jurisdictions have, in several cases involving allegations of trespass off the highway,13 endorsed the view that actions for trespass to the person will not succeed where the injury was inflicted neither negligently nor by an intentional act. Bray CJ in Venning v Chin14 [page 21] regarded the controversy as having been put to rest finally in Stanley v Powell.15 And, when Venning subsequently went on appeal to the High Court, although not on the question of trespass, Gibbs J made the point that nothing in his judgment was intended to indicate support for the proposition that, in a running-down accident on the highway, an injured person might, by suing in trespass, succeed in recovering damages without proving that the defendant driver was negligent. For this, he said, would be contrary to the assumption on which thousands of collision cases had been conducted in Australia in recent years.16

2.5 In New Zealand, where most cases of trespass to the person are covered by the Accident Compensation Act 2001,17 there would, accordingly, be no need for the plaintiff to prove fault in either of its forms. Obviously, fault is still a requirement in cases of trespass to property or to land.

Trespass and Negligence 2.6 Proceeding from the assumption that fault in the sense either of intention to do the act or want of due care in so doing is a key element of the tort of trespass in all of its forms, the question arises whether actions in trespass are confined to intentionally caused harm or whether, in cases of personal injury directly caused by negligent conduct, the plaintiff might bring suit in either negligence or trespass. As we will see, the position in Australia differs from that in England. Also to be examined in this section is the question of the burden of proof as well as the reasons why a person might wish to sue in trespass rather than in the (now) more common action for negligence.

Suits in both trespass and negligence 2.7 Compensation for injury to the person and to property was awarded by the courts from at least the thirteenth century onwards, by which time the writs of trespass were in common use. A suit in trespass could succeed only where the interference was direct; the action of trespass on the case (or, simply, ‘case’, as it was known), the forerunner of the modern law of negligence, was developed for consequentially inflicted injuries. The distinction remains fundamental to the choice of action; even today an allegation of trespass will fail if the act of the defendant is not direct,18 although, of course, some other right of action in tort may lie. Accordingly, the action in trespass would be available only where the injury was direct, whether it was intentional or unintentional. The action on the case would lie where the injury [page 22] was consequential, even if it was intentional; alternatively, where it was direct and unintentional.19 In view of this background, one could confidently say that in both England and Australia, at least until 1965,20 trespass and negligence overlapped in that each might have been available where direct injuries were sustained as a result of non-accidental conduct. Since that time the respective legal position in each country has diverged.

2.8 The position in England was charted in the landmark decision of Letang v Cooper,21 a matter involving trespass to the person. The plaintiff was sunbathing in the grass carpark of a hotel in Cornwall when the defendant, driving his Jaguar, negligently ran over her legs.The situation is that, in accidents of this sort, a suit would usually have been brought in negligence alone, but by the time the plaintiff initiated the action, more than three years had elapsed. The Limitation Act 1939 (UK) barred actions for ‘negligence, nuisance or breach of duty’ after three years, all other tort actions being barred after six years. Consequently, in an effort to prevent her action from being time-barred, the plaintiff sued for damages for personal injury claiming not only in negligence but also in the alternative for trespass to the person.

The Court of Appeal, determined to avoid the conclusion (nonsensical in the context of limitation)22 that trespass would lie although negligence would not, made good the drafter’s ambiguities by holding that ‘breach of duty’ covered trespass as well as negligence.23 The result was to bar the plaintiff’s action. Lord Denning MR, with whom Danckwerts LJ agreed, also held24 that the distinction between trespass and case is obsolete; that instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we now inquire whether the defendant acted intentionally or unintentionally. If the injury is intentionally inflicted, the plaintiff has a cause of action in trespass (assault and battery); if the defendant inflicted the injury unintentionally but negligently, the plaintiff’s only cause of action is negligence. Diplock LJ in his judgment25 accepted that trespass could still be committed negligently, but preferred to refrain from considering whether there were any substantive differences between negligent trespass and negligence. In his view, whereas the alleged factual situation, prior to 1873, would have disclosed a cause of action either in trespass or case, today, although the same factual situation revealed acts which could be described either [page 23] in terms of trespass to the person or negligence, this did not imply the existence of two separate causes of action, but merely indicated two apt descriptions of the same cause of action.

2.9 Letang v Cooper is a manifestation of the judicial instinct to confine actions based on carelessness to the tort of negligence. It shows how a court might strive to deny the continuance of different rules in trespass when the effect would be to give a remedy in trespass for careless conduct in circumstances where an action in negligence would fail. In Letang’s case, the Court of Appeal was able to give expression to this instinct through the medium (or device) of widely interpreting the phrase ‘breach of duty’. The effect of so doing, however, has been to curtail the availability of trespass as a remedy for injury to the person in circumstances where the conduct

complained of was negligent and where, historically, the action would lie. Letang v Cooper illustrates the current judicial tendency in England to avoid overlap between trespass and negligence. But it is still too soon to conclude that trespass generally has no relevance when negligent conduct is relied on.

2.10 The High Court has taken a different approach to the problem, as may be seen from its decision in Williams v Milotin.26 Here the plaintiff cyclist, struck and injured by the defendant’s truck, brought an action for damages four years after the event. The relevant Limitation Act barred actions in trespass to the person after three years and actions which formerly might have been brought as actions on the case after six years.27 The Full Bench unanimously rejected the defendant’s argument that the plaintiff’s action was really one of trespass and thus time-barred. Instead it noted that, had the allegation been that the defendant had intended to strike the plaintiff, the only available cause of action would have been trespass. On the other hand, had the damage been caused indirectly by the defendant or his servant, the proper action would have been case. Since the damage was caused both directly and unintentionally, the plaintiff might sue either in trespass or on the case. As the court observed: [T]he problem is reduced to the simple position that on the same set of facts two causes of action arose to which different periods of limitation were respectively affixed. In saying that two causes of action arose no more is meant than that two traditional categories continue to exist … and that there is no difficulty in distinguishing between the categories either notionally or historically.28

That being so, and since the plaintiff was relying on the category of negligence, there was no reason for the court to limit his action by reference to any period of time other than that appropriate to negligence as a cause of action.

2.11 The position of the High Court is clearly quite different in this regard from that of the English Court of Appeal. As pointed out by Bray CJ in Venning v Chin,29 Williams v Milotin and Letang v Cooper cannot stand together. The South Australian Supreme Court quite correctly saw itself as bound by the decision of the High Court, but even so independently arrived at a similar decision, Bray CJ dismissing Lord [page 24]

Denning MR’s approach as one of ‘judicial legislation’.30 And another of the judges, Bright J, commented further31 that although the action in negligence might, in time, grow to overwhelm the action of trespass to the person where this was based on negligent conduct, this is not yet the situation in Australia. Williams v Milotin expresses the current law32 in Australia, namely that, whether the accident occurs on or off the highway, it is possible on the same set of facts to establish two distinct causes of action — one in trespass, the other in negligence. The plaintiff is free to choose between the two. Nevertheless, the High Court in a subsequent judgment33 appeared inclined to adopt a more sympathetic approach to the views of the English Court of Appeal in this regard. However, because of its finding on the issue of negligence, the court decided that it was ‘unnecessary’ to give separate consideration to the question whether an action based on trespass to the person properly lies concurrently in the individual case with the more appropriate action in negligence.34 These comments indicate that the question of the interrelationship of fault and trespass is still not entirely resolved in Australia.

2.12 In New Zealand the interrelationship between trespass and negligence has yet to be fully explored. Nevertheless, in Cousins v Wilson,35 where the damage complained of involved the destruction or removal of several mature trees from a Dunedin property, the High Court rejected an attempt by the purchasers of the property to frame the action in both trespass and negligence. In so doing it held that the invasion was intentional and, as such, ‘is actionable as trespass strictly, and no enquiry is required as to the intruder’s motives and his carelessness or carefulness, although these matters may aggravate the damages …’.36 Referring to the warning given by the Privy Council on the danger of extending the ambit of negligence so as to supplant other torts,37 the High Court held further that it would be ‘entirely inconsistent’ with the ‘clearly defined duties and liabilities arising from the uninvited and unlawful entry onto land … to allow claims for negligence under which the gist of the action is damages, and the motives and the conduct, and the beliefs or the knowledge of the defendant, are all important’.38 In arriving at its decision the High Court did not refer to the discussion of its Australian counterpart in Williams v Milotin nor did it adopt the reasoning of the English Court of Appeal in Letang v Cooper. Nevertheless, the clear implication to be drawn from the judgment is that

courts in New Zealand will not countenance the framing of an action in both trespass and negligence: where the action in question consists of an intentional invasion, the ‘proper’ cause of action will be trespass alone. [page 25]

Burden of proof Injury occurring off the highway 2.13 A study of the above cases also reveals a difference of opinion between the High Court and the English Court of Appeal on the question of where the onus or burden of proof lies in suits for unintended, but negligently inflicted, direct injury.39 In England, it appears to be settled that, in all cases of trespass to the person, whether occurring on or off the highway, the burden of proving negligence rests with the plaintiff. This view first received clear judicial endorsement in Fowler v Lanning40 where the plaintiff’s statement of claim alleged merely that ‘the defendant shot the plaintiff’. As it was not suggested that the shooting had been intentional, this raised the preliminary question whether it was necessary for the plaintiff to prove that the defendant was negligent, in which event the statement of claim was deficient in omitting an allegation and particulars of negligence; or whether the defendant in a trespass action bore the onus of proving that the injuries sustained by the plaintiff were not due to negligence, in which case the statement of claim was sufficient to disclose a cause of action. Diplock J held41 that the plaintiff bears the onus of proving intention or negligence (where the trespass is not intentional). Accordingly, under the modern rules of pleading, the plaintiff must allege either intention on the part of the defendant or, where negligence is relied upon, the plaintiff must state the facts alleged to constitute negligence. This remains so whether the action is framed in trespass or in negligence. Diplock J’s conclusion was based on a survey of cases dating back to the seventeenth century. He found nothing in those cases to support the proposition put to him that, in order to escape liability for unintentional trespass to the person, the defendant must comply with a higher standard of care than is needed to escape liability if the action

were framed in trespass on the case. And he not only challenged the ‘formidable body of academic opinion’ stating that highway cases have in the last hundred years become an exception to a previously existing general rule that ‘the onus of proof of absence of negligence on the part of the defendant in a case founded on trespass to the person, lies upon the defendant himself’, but, on the contrary, he used those very highway cases as illustrative of the state of the law with respect to the burden of proving negligence in all cases of trespass to the person.

2.14 The judge’s views were subsequently upheld by Lord Denning MR42 and have not been challenged in the English courts since. They have also been followed in New Zealand.43 The High Court, however, in McHale v Watson44 declined to follow Diplock J on the question of onus of proof, Windeyer J preferring the view45 that it is for the defendant to prove an absence of intent and negligence on his or her part. He specifically considered but rejected the statement by Diplock J that in an action of trespass to the person (based, in this case, upon a battery by a blow or missile) the [page 26] plaintiff must aver and prove the defendant’s act to be either intentional or negligent. Windeyer J relied for support, inter alia, on an earlier decision of the Supreme Court of New South Wales, based on a similar fact situation, in which it had been held46 that it was for the defendant to discharge the burden of proof by establishing that a bullet which had entered the plaintiff’s eye and which had come from a gun fired by the defendant was neither the result of negligent nor intentional action on his part. Additional support was also to be had from the High Court’s previous decision in Williams v Milotin.47 The question of onus of proof was again canvassed by the Full Court in South Australia in Venning v Chin.48 Once more, Diplock J was not followed, Bray CJ regarding his reliance on highway cases as ‘an illustration of how authorities for an exception to a rule can be used to subvert the rule entirely on the ground that there is no difference between the cases covered by the exception and the remainder of the cases covered by the rule’.49 The Chief Justice not only regarded the law on this point as having been settled in

McHale v Watson, but added that the view of the High Court was clearly in accord with the older (early nineteenth century) authorities, which had not been overturned by any binding authority to the contrary before Fowler v Lanning, except highway cases (which he regarded still as exceptional).50

2.15 Bucking this trend, Gibbs CJ in Hackshaw v Shaw51 noted, obiter, that the rule placing the burden of proof on the defendant is inconvenient in a matter where both trespass and negligence are relied on in the alternative, since a jury might be confused by a direction in relation to the former cause of action that the defendant bears the onus of disproving negligence; and in relation to the latter that the onus of proving it falls on the plaintiff. The other judges offered no comment, preferring to concentrate on the questions arising directly out of the appeal. But is the inconvenience referred to by the Chief Justice sufficient reason to change the historical burden of proof?

2.16 In Platt v Nutt, Kirby P52 argued forcefully in favour of such a change.53 Pointing especially to the ‘unprincipled’ situation which now exists because the burden of proof in cases on the highway is different from that in other cases of trespass to the person, he defined as his major concern the need to restore ‘a satisfactory conceptual approach and consistency in the assignment of the burden of proof’ in cases of trespass to the person by bringing other such cases ‘into line with the law now clearly established as applicable in respect of trespass to the person by the use of a motor vehicle’. This shift in the burden of proof would, he maintained, have the [page 27] further advantage of bringing the law into line with the general rule which obtains in the courts, namely, that those who assert must prove. It would also remove at least one of the tactical advantages (discussed below) which may arise when the plaintiff is free to choose whether to characterise and plead the action as one of trespass or negligence (although whether this is necessarily progress is debatable). Most important, in Kirby P’s view, was that such a step might encourage a reassessment of the respective functions of trespass and negligence in the law of torts, reconciling the ancient cause of action in trespass to the more modern tort of negligence.

2.17 These issues were not mentioned by the High Court in its reappraisal of the burden of proof in actions involving trespass to the person. In Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case),54 in a forceful obiter statement, McHugh J supported the view that the onus of proving consent was on the defendant, on the basis that consent is a claim of ‘leave and licence’ and, on analogy with actions for trespass to land and defamation, must be pleaded and proved by the defendant. However, neither McHale v Watson nor Hackshaw v Shaw was referred to, possibly because the case was not one in which negligence could have been pleaded in the alternative. McHugh J dismissed the contention that lack of consent is so inherent in the notion of a tortious invasion of interests in the person that this lack must be established by the plaintiff, arguing instead that the gist of the tort is: … an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful but, if there is no evidence on the issue, the tort is made out.

McHugh J’s view reflects the traditional approach to the requirements of trespass to the person and, by shifting the onus of proving the intentional or negligent wrongdoing onto the defendant, rather than requiring the plaintiff to prove fault, maintains the distinction between actions brought in trespass and negligence.

Trespass on the highway 2.18 Where trespass occurs on the highway, English and Australian courts agree on the need for the plaintiff to prove that the defendant is at fault. As noted in 2.13, Diplock J in Fowler v Lanning55 held that in English law there is no difference between highway cases and other cases on the question of burden of proof — the law as it now stands expects the plaintiff suing in trespass to prove that the act of the defendant is either intentional or negligent. In Australia the burden of proving intentional or negligent injury on the highway is cast upon the plaintiff by way of exception from the general rule. The theoretical underpinning may be stated in the following terms: the public has a right, for reasons of convenience of modern living, to carry on traffic on the highways. Persons who use the highways, or who occupy adjoining

property, must therefore be taken to assume the risk of injury from inevitable dangers arising from the flow of traffic, that is, those dangers incidental to the ordinary exercise of the right of user, but not the risk of intentionally or negligently inflicted harm.56 Thus, unless the plaintiff can establish fault, in the sense either of intentional or negligent conduct, which [page 28] will take the injury out of the ‘inevitable danger’ class, the loss must lie where it falls. An alternative foundation for the rule as to burden of proof on the highways is, perhaps, the perception that ‘where harm arises out of the simultaneous enjoyment or exercise of co-existing rights, absolute responsibility is unjust and no reconciliation of the conflicting interests can be satisfactory unless by reference to neglect or default’.57 Bray CJ in Venning v Chin, in the course of exploring the highway rule, noted58 that the decisions traditionally quoted in its support59 appear to be concerned more with the fact and conditions of liability rather than, specifically, onus of proof. Regardless of this, he acknowledged that they have become accepted statements of the law despite their imperfections from the point of view of abstract jurisprudence and despite the serious theoretical difficulties that exist in relation to those who lack capacity or whose presence on the highway is involuntary (such as babies in prams, unconscious patients in ambulances and prisoners in police vehicles). He suggested that such individuals might be subject to the risk of non-intentional and non-negligent injury on a quasi-contractual basis imposed on all users of the highway, irrespective of actual consensus. Ultimately, though, he accepted the rule with its imperfections because ‘the life of the law is not logic but experience’.60

2.19 Judicial endorsement of the rule that the plaintiff bears the onus of proof in cases of negligent trespass occurring on the highway, reinforcing as it does the element of personal fault,61 has been criticised by some writers62 as being out of step with modern views on the purpose and function of the law of torts. Highway accidents typify the inevitable risks attendant on modern life; notions of deterrence and demands for ethical retribution inherent in the need to prove fault do not sit easily with the idea of inevitable

risk. Legislatures throughout Australia have for many years now required highway users to insure against risk of injury to others. This practice exemplifies the modern tendency to spread the loss over the entire road-using community rather than merely to shift it from plaintiff to defendant; and, while these insurance schemes do not eliminate the need to prove fault, nonetheless they downgrade its importance as a factor in the recovery of damages. The introduction in New Zealand and in some Australian jurisdictions in recent years of comprehensive no-fault schemes for motor accidents (see Chapter 12) takes this process one stage further. In the Northern Territory,63 as in New Zealand,64 the legislature has stepped in to eliminate altogether the traditional dependency upon fault by providing for the automatic compensation of persons injured in such accidents and, at the same time, by abolishing all common law claims for damages. Other legislatures have not been quite so bold, preferring to introduce statutory [page 29] compensation schemes which provide compensation for personal injury incurred on the highway while not explicitly abolishing common law rights.65

Negligent trespass or negligence: advantages and disadvantages 2.20 In practice, even in Australia, the separate tort of negligence is almost always relied upon if the conduct of the defendant is negligent but not intentional, trespass being reserved for situations where the injury is intentionally inflicted. Several reasons have been advanced as to why plaintiffs generally choose to sue in negligence for direct but unintentional harm.66 These include the fact that a claim based on negligence is not affected by any doubts concerning the direct nature of the injury as well as the fact that, traditionally, the writ of trespass does not lie against an employer for the torts of an employee.67 On the other hand, trespass may have several advantages over negligence

where negligent conduct is complained of.68 First, despite the doubts voiced by the High Court,69 the position remains that, in cases of trespass occurring off the highway, once the plaintiff proves direct injury by the defendant, the burden of disproving negligence shifts to the defendant; whereas in the tort of negligence the plaintiff would be obliged to prove not only that the defendant had acted in the manner complained of but that the defendant had done so negligently.70 The plaintiff in trespass is thus at a procedural advantage. At least one High Court judge has commented that the question of onus of proof is generally of far greater interest to academics than it is of practical importance to a court of law and that the outcome of an adjudication does not often depend upon which side bears the onus of proof.71 Such comments overlook the fact that cases might well arise where a plaintiff would be greatly assisted by the shift in burden of proof, particularly in those instances where the factual situation is equivocal but peculiarly within the knowledge of the defendant. Certainly, the shift in onus of proof was one reason why the plaintiff in Fowler’s case sued in trespass rather than in negligence. [page 30]

2.21 Secondly, a feature of the tort of trespass is that it is actionable per se; whereas the gist of the tort of negligence is damage.72 Suppose that a trespass is committed in circumstances which humiliate or insult the plaintiff but no other damage is suffered.73 No action in negligence would lie but under the rules of aggravated damages in trespass, that damage would be recoverable.74 The plaintiff would, of course, initially have to prove the technical trespass. The view of Diplock LJ75 that ‘actual damage is … a necessary ingredient in unintentional as distinct from intentional trespass to the person’ is premised on the assumption that negligent trespass involves a failure ‘to take reasonable care to avoid causing actual damage to one’s neighbour’ and, in so far as it attributes to negligent trespass all the elements of an action in the tort of negligence, cannot be regarded as correct. It is not necessary in trespass to prove actual damage, merely the direct infliction of injury (which may or may not result in actual damage).

2.22 Thirdly, trespass may also offer an advantage over negligence to plaintiffs unable to prove that the defendant owed them, personally or as

members of a class, a duty of care in the technical sense of this term as derived originally from Lord Atkin’s well-known statement in Donoghue v Stevenson;76 for it may be enough in an action for trespass if all that is proved is a lack of reasonable care on the part of the defendant.77 The courts have not explained precisely what they mean by the terms ‘lack of care’ or ‘negligence’ in the context of an action based on trespass. In Shaw v Hackshaw, Gobbo J of the Supreme Court of Victoria held78 that where the claim in negligence is founded on the same incident as the claim in trespass to the person, then, in dealing with the negligence question in the trespass to the person claim, the jury is obliged to decide whether there has been negligence on the part of the defendant: As to what constitutes negligence, there would appear to be no reason of principle why the content of negligence should not be the same on the first enquiry under trespass to the person as that applicable to an alternative claim in negligence.

2.23 The further question, that is, whether an act of the defendant, which is in its nature careless and a breach of a duty owed to some third party but which is not careless with reference to the plaintiff, is also actionable in trespass (though it certainly is not in negligence), is also difficult to answer with any degree of certainty. A hits a golf ball without warning B, who is on the green 100 m ahead — no doubt B could sue A either in trespass or in negligence for this careless act if B were hit. But suppose C is sleeping in the rough grass off the fairway and is hit by A’s shot in circumstances where A could not have foreseen this consequence of the [page 31] ‘careless’ act. Here, although C’s injury is the direct result of A’s act, an action in negligence would fail, but is the chance of success in trespass any the less unlikely? In Australia, where the burden of disproving fault shifts to the defendant once the plaintiff proves a direct injury, an action in trespass may well have a greater chance of success.79 There may be similar advantages in relation to the issue of remoteness of damage. In negligence the defendant is liable only for harm which materialises in a foreseeable way; if the defendant foresees or should have foreseen that damage to the plaintiff’s goods by, for example, impact, the

defendant will not be liable when, carelessly, the defendant sets fire to those goods: see 9.7ff. It is undecided whether this rule extends to trespass. If, as has been suggested,80 the test is one of directness rather than remoteness, where the injury is directly inflicted the plaintiff suing in trespass might recover far more than if the action were brought in negligence. A further advantage of suing in trespass rather than negligence is that contributory negligence is not a defence to an action in trespass.81

2.24 Finally, a word on limitation of actions. The scope these days for this factor to affect the plaintiff’s choice of action has been very seriously curtailed. It is clear from the decision of the High Court in Williams v Milotin82 that in the event that the facts of a case fulfil the requirements of both trespass and negligence, either period of limitation may be availed of, in the sense that the plaintiff is free to bring a suit under either head.83 But, at least if the plaintiff’s action is for damages for personal injury, the limitation period (of three years) is the same throughout the country.84 _______________ 1.

Weaver v Ward (1616) Hob 134.

2.

See also Gibbons v Pepper (1695) 1 Ld Raym 38.

3.

[1959] 1 QB 426 at 439; 1 All ER 290 at 297.

4.

Holdsworth, History of English Law, Vol VIII, pp 456–8. These earlier authorities, instead of focusing on the mental attitude of the defendant, were satisfied simply to inquire whether the defendant had inflicted upon the plaintiff the harm complained of.

5.

Holmes v Mather (1875) LR 10 Ex 261; Stanley v Powell [1891] 1 QB 86; Gayler and Pope Ltd v B Davies & Son Ltd [1924] 2 KB 75; Manton v Brocklebank [1923] 2 KB 212 (CA); National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861; cf Morriss v Marsden [1952] 1 All ER 925.

6.

(1957) 97 CLR 464 at 474.

7.

Cf Diplock J in Fowler v Lanning [1959] 1 QB 426 at 439; 1 All ER 290 at 297 who expressly made the point that whether the trespass is committed on or off the highway, either intention or negligence must be proved.

8.

See comment by Bailey, ‘Trespass, Negligence and Venning v Chin’ (1976) 5 Adel LR 402 at 405.

9.

(1938) 59 CLR 219 (a horse drawing a cart up a narrow lane flanked by glass shop windows took fright and backed the cart through one of the windows — held to be negligent user of the highway).

10.

Ibid at 225.

11.

(1964) 111 CLR 384.

12.

Ibid at 388.

13.

Blacker v Waters (1928) 28 SR (NSW) 406 at 410; Exchange Hotel v Murphy [1947] SASR 112 at 117; Kruber v Grzesiak [1963] VR 621.

14.

(1974) 10 SASR 299 at 310. Venning, of course, concerned an action of trespass for personal injuries caused in a highway accident but Bray CJ’s statement appears not to be limited to such situations and covers all actions of trespass to the person, wherever they might occur.

15.

[1891] 1 QB 86.

16.

Chin v Venning (1975) 49 ALJR 378 at 379.

17.

The Act provides compensation for persons who suffer ‘personal injury by accident’: see 12.43ff. But actions at common law are still available, if the plaintiff seeks exemplary damages: see s 319 and Couch v Attorney-General (No 2) [2010] 3 NZLR 149, departing from the earlier decision of the Privy Council in A v Bottrill [2003] 1 AC 449; [2003] 2 NZLR 721 see 27.11.

18.

For the meaning of ‘direct’ in the various forms of trespass, see 3.11, 4.45.

19.

Williams v Holland (1833) 10 Bing 112. For a discussion on the historical development of the rule see Prichard, ‘Trespass, Case and the Rule in Williams v Holland (1964) Camb LJ 234. Whatever cause of action is relied upon must be clearly stated in the writ; it is not sufficient merely to set out the facts and the relief or remedy sought: Sterman v EW and WJ Moore Ltd [1970] 1 QB 596; 1 All ER 581 (CA).

20.

The decision in Hillier v Leitch [1936] SASR 490, which might suggest otherwise, turned on an interpretation of the Limitation of Suits and Actions Act 1866 (SA) which was at the time in force in South Australia.

21.

[1965] 1 QB 232; [1964] 2 All ER 929 (CA).

22.

See Dworkin, ‘The Case of the Misguided Missile’ (1959) 22 MLR 538 on the importance of enabling the modern law of torts to escape from the shackles of the old forms of action.

23.

On Letang v Cooper and the drafter’s ambiguities, see Stubbings v Webb [1993] AC 498 at 507; 1 All ER 322 at 328–9 per Lord Griffiths (HL).

24.

[1965] 1 QB 232 at 239, 242; [1964] 2 All ER 929 at 932, 934 respectively. Lord Denning MR adopted the interpretation of Adam J in Kruber v Grzesiak [1963] VR 621 of the similarly worded Limitation of Actions Act 1958 (Vic).

25.

[1965] 1 QB 232 at 242ff; [1964] 2 All ER 929 at 934ff. But see note by Jolowicz (1964) Camb LJ 201–2 for criticism of this reasoning. This dichotomy of opinion still exists in Irish law: Breslin v McKevitt [2011] NICA 33 at [14].

26.

(1957) 97 CLR 465; [1957] ALR 1145.

27.

Limitation of Actions Act 1936 (SA) ss 36(1) and 35 respectively.

28.

(1957) 97 CLR 465 at 473.

29.

(1974) 10 SASR 299 at 308.

30.

Ibid at 307.

31.

Ibid at 323.

32.

See Ross v Warrick Howard (Australia) Pty Ltd (1986) 4 SR (WA) 1; also Parsons v Partridge (1992) 111 ALR 257 at 259-60 per Morling CJ (N Is SC); NSWv Knight [2002] NSWCA 392.

33.

Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417 (involving injury to the person off the highway).

34.

Ibid at 667–8; 456 respectively per Deane J.

35.

[1994] 1 NZLR 463.

36.

Ibid at 468 per Greig J.

37.

See Downsview Nominees Ltd v First City Corporation [1993] 1 NZLR 513 at 525.

38.

[1994] 1 NZLR 463 at 468.

39.

See generally Blay, ‘Onus of Proof of Consent in an Action for Trespass to the Person’ (1987) 61 ALJ 25.

40.

[1959] 1 QB 426; 1 All ER 290.

41.

Ibid at 439, 297 respectively.

42.

Letang v Cooper [1965] 1 QB 232 at 239; [1964] 2 All ER 929 at 932. The other judges did not expressly allude to this issue.

43.

Beals v Hayward [1960] NZLR 131; H v R [1996] 1 NZLR 299 (HC).

44.

(1964) 111 CLR 384.

45.

Ibid at 388.

46.

Blacker v Waters (1928) 28 SR (NSW) 406 at 410.

47.

(1957) 97 CLR 465 at 474; but see criticism of the scope of the High Court’s judgment in this case in Heffey and Glasbeek, ‘Trespass: High Court v Court of Appeal’ (1966) 5 MULR 158 at 169.

48.

(1974) 10 SASR 299.

49.

Ibid at 311.

50.

Other cases placing the burden of disproving intention or negligence upon the defendant include Tsouvalla v Bini [1966] SASR 157; Hart v Herron (1984) Aust Torts Reports 80–201 at 67,814 (NSWSC); Ross v Warrick Howard (Australia) Pty Ltd (1986) 4 SR (WA) 1; Hogan v Gill (1992) Aust Torts Reports 81–182 at 61,584 (Qld SC); but cf Kruber v Grzesiak [1963] VR 621 and Beals v Hayward [1960] NZLR 131.

51.

(1984) 155 CLR 614; 56 ALR 417 at 619; 420 respectively.

52.

(1988) 12 NSWLR 231 at 235–40; Hope and Clarke JJA, though arriving at a like conclusion to Kirby P on the facts, reserved their determination on the point of onus of proof. And see note by JGS in (1989) 63 ALJ 292.

53.

An approach favoured in Armellin v Ljubic [2009] ACTCA 22 at [27].

54.

(1992) 175 CLR 218 at 310–11; 106 ALR 385 at 453.

55.

[1959] 1 QB 426; 1 All ER 290.

56.

For example, Holmes v Mather (1875) LR 10 Ex 261 at 267 per Bramwell B.

57.

Nickells v Melbourne Corp (1938) 59 CLR 219 at 226 per Dixon J.

58.

(1974) 10 SASR 299 at 312ff.

59.

Inter alia, Fletcher v Rylands (1866) LR 1 Ex 265 at 286-7; River Wear Comrs v Adamson (1877) 2 App Cas 743 at 767; Holmes v Mather (1875) LR 10 Ex 261 at 267; Nickells v Melbourne Corporation (1938) 59 CLR 219 at 225-6; Williams v Milotin (1957) 97 CLR 465 at 474.

60.

(1974) 10 SASR 299 at 315.

61.

Making it more difficult for the plaintiff to recover damages. See, eg, Venning v Chin (1974) 8 SASR 397 at first instance where, the facts being unclear, the injured plaintiff was held entitled to recover.

62.

For example, Heffey and Glasbeek, ‘Trespass: High Court v Court of Appeal’ (1966) 5 MULR 158 at 175.

63.

Motor Accidents (Compensation) Act 1979 (NT), especially s 5.

64.

Accident Compensation Act 2001 (NZ).

65.

For example, Motor Accidents (Liabilities and Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic).

66.

See Winfield and Goodhart, ‘Trespass and Negligence’ (1933) 49 LQR 359.

67.

Sharrod v London and North Western Ry Co (1849) 4 Exch 580; Stoneman v Lyons (1975) 133 CLR 550 (employer only liable in trespass for authorising employee’s act constituting that trespass); cf Commonwealth v Connell (1986) 5 NSWLR 218 at 223 per Glass JA (employer could be held liable for a battery committed by an employee if committed in the scope of employment).

68.

See Trindade, ‘Some Curiosities of Negligent Trespass to the Person — A Comparative Study’ (1971) 20 ICLQ 706; Bailey, ‘Trespass, Negligence and Venning v Chin’ (1976) 5 Adel LR 402 at 415ff.

69.

Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417.

70.

This proposition remains true, despite the doctrine of res ipsa loquitur (discussed in 8.41ff). In Australia, though not perhaps in England, the courts have regarded the onus of proof as unaffected by the application of the doctrine: Fitzpatrick v Cooper Pty Ltd (1935) 54 CLR 200; Davis v Bunn (1936) 56 CLR 246; Nominal Defendant v Haslbauer (1967) 117 CLR 448; Government Insurance Office (NSW) v Fredrichberg (1968) 118 CLR 403. Cf Woods v Duncan [1946] AC 401 at 409; Moore v R Fox & Sons [1956] 1 QB 596; 1 All ER 182 (CA).

71.

Windeyer J in McHale v Watson (1964) 111 CLR 384 at 389. His Honour simply accepted the proposition of counsel that, as the defendant, Watson, had thrown the object which had hit McHale in the eye, he was liable for the consequences unless the court was satisfied on the balance of probabilities that he neither intended to hit her nor had done so negligently.

72.

O’Donohue v Wille [1999] NSWSC 661 at [19].

73.

Trespass also continues to be relevant in the context of medical treatment without consent, contact in sport and affirmation of civil liberties: see Handford ‘Intentional Negligence: A Contradiction in Terms?’ (2010) 32 Syd LR 29 at 40.

74.

See 5.19. Where a technical trespass has taken place, eg, false imprisonment or assault, the plaintiff can be awarded damages not only for the actual physical interference ‘but also in respect of insult which may arise from interference with the person and the injury to his feelings, that is, the indignity, mental suffering, disgrace and humiliation that may be caused’: Fogg v McKnight [1968] NZLR 330 at 331 per McGregor J.

75.

Letang v Cooper [1965] 1 QB 232 at 245; [1964] 2 All ER 929 at 936 (CA).

76.

[1932] AC 562.

77.

The meaning of reasonable care is examined in Chapter 8.

78.

[1983] 2 VR 65 at 114. In the subsequent appeal to the High Court (1984) 155 CLR 614; 56 ALR 417 this matter was not canvassed.

79.

Goodhart would apparently find this a trespass on the basis that C’s damage resulted directly from A’s act of intentionally hitting the ball; see his criticism of the American Restatement, Torts, (First), s 18, illustration 3, in (1935) 83 U Penn LR 411 at 417 (the second Restatement retains this illustration). And see the discussion of the allied problem of ‘transferred intent’ with regard to intentional acts, in 3.4.

80.

See, eg, Allan v New Mount Sinai Hospital (1980) 109 DLR (3d) 634 at 643 per Linden J (Ont HC).

81.

See Horkin v North Melbourne Football Club Social Club [1983] 1VR 153; cf Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 where the case proceeded on the contrary assumption; and 6.14.

82.

(1957) 97 CLR 465.

83.

Parsons v Partridge (1992) 111 ALR 257 (N Is SC).

84.

Limitation Act 1985 (ACT) s 16B(2)(b); Limitation Act 1969 (NSW) s 18A; Limitation Act 1981 (NT) s 12(1); Limitation of Actions Act 1974 (Qld) s 11; Limitation of Actions Act 1936 (SA) s 36(1); Limitation Act 2005 (WA) ss 14 and 16. To the same effect are Limitation Act 1974 (Tas) s 5A(3)(a) and Limitation of Actions Act 1958 (Vic) s 5(1A), read in the light of Kruber v Grzesiak [1963] VR 621, Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 at [14] and W v Eaton [2011] TASSC 4.

[page 32]

CHAPTER 3 Intentional Torts to the Person

Battery 3.1 The form of trespass to the person known as battery is any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff’s consent.

State of mind of the defendant 3.2 Most suits for battery are based on intentional acts; where the act is merely negligent the claim is usually in negligence, but, as has been suggested earlier, in Australia1 there appears to be no legal impediment to a negligent action forming the basis of a suit for battery, provided the other criteria are satisfied.2 Recent United Kingdom court decisions3 also indicate that recklessness will be a sufficient state of mind to establish the requisite intention. An act will be intentional if it is a deliberate, wilful act, that is to say, if the defendant ‘meant to do it’.4 It is not a requirement of the tort of battery that the defendant intended to injure or harm the plaintiff; it is enough that the defendant intended to perform the act which caused the offensive contact with the plaintiff.5 It follows, therefore, that it would be a battery upon C if A, throwing a stone with the intention of hitting B, instead hits C, at least where A is or should be aware

[page 33] that, given the particular circumstances, C is likely to be hit. This appears to be the reasoning of Latham CJ in Bunyan v Jordan6 where, despite his (obiter) statement that ‘if A, intending to hit B unlawfully, in fact hits C, there is no doubt as to A’s liability to C’, the charge of battery was dismissed on the basis that the defendant’s actions, taken as a whole, could not be said to be ‘calculated or likely’ to cause harm. Cases such as James v Campbell7 and Ball et Uxor v Axten8 may also be explained on this basis. In the former case, the defendant was held liable in battery when, during the course of a fight with a third party, he swung his fist and, in so doing, unintentionally struck the plaintiff. In the latter case, a similar decision was reached when the defendant, while intending to strike the plaintiff’s dog, inadvertently hit the plaintiff’s wife who was attempting to shield the animal from the blows.

3.3 These cases offer some judicial support for the view9 that, even where the defendant does not desire a particular consequence, the action will be deemed to be intentional if, in the circumstances, the conduct is substantially certain to result in the act complained of.10 Such a ‘deeming’ cannot, however, take place if all that can be said is that the defendant might have foreseen the result.

3.4 Despite the differing nature of criminal law and the law of torts, it is also possible that liability in such cases might be explained by having recourse to the criminal doctrine of ‘transferred intent’.11 In this connection, as was stated in Scott v Shepherd12 ‘[a]nd though criminal cases are [generally] no rule for civil ones, yet in trespass I think there is an analogy’. In America,13 in its fullest application, this doctrine is utilised not only where a different person is the victim of a particular tortious act, but even where the tort that was committed turns out to be different from the one intended to be committed, provided both torts are based on the action of trespass. Accordingly, a defendant who intends to commit battery but instead commits trespass to chattels remains liable. The doctrine’s principal use, however, was articulated by the Supreme Court of Missouri in Carnes v Thompson14 thus: If one person intentionally strikes at, throws at, or shoots at another, and unintentionally strikes a third person, he is not excused, on the grounds that it was a mere accident, but it is an assault and battery of a third person. The defendant’s intention in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one

intended …

Until recently no judicial discussion, let alone judicial endorsement, of the doctrine had yet taken place in Australian or English courts. In Scott v Shepherd,15 for example, the inquiry centred on the immediacy of the injury; while in Bunyan’s [page 34] case16 the action failed because no intention to do any offensive17 act could be proved. In 2004, the English High Court, in Bici v Ministry of Defence18 endorsed the doctrine in reliance, inter alia, on a decision of the Northern Ireland Court of Appeal in Livingstone v Ministry of Defence19 in which it was held that ‘where a soldier deliberately fires at one rioter intending to strike him and he misses him and hits another rioter nearby, the soldier has “intentionally” applied force to the rioter who has been struck’ and in the absence of lawful justification, will be liable in battery. In the absence, however, of any independent reasoning on the part of the High Court, and given that the cases cited in support did not expressly consider the doctrine and may be explained on other grounds, it remains to be seen whether Bici’s case will be followed, including in Australia.20

3.5 Some difference of opinion exists as to whether the unwanted physical contact must involve an element of hostility on the part of the defendant.21 The better view is that both motive and malice (unlike intention) are irrelevant in determining liability for battery, although the presence of either may affect the amount of damages awarded to the successful plaintiff. Since what is being protected by the tort is the interest in physical integrity, it may be more sensible to approach the matter from the point of view of the plaintiff rather than that of the defendant, and to ask whether, from that point of view, the physical contact was in excess of that generally acceptable in everyday life.22

3.6 Intention on the defendant’s part presupposes that the act is voluntary. The word ‘voluntary’ is used here in the sense that the act is directed by the defendant’s conscious mind.23 Where the defendant is forcibly carried onto the plaintiff’s land by a third party, the trespass will be that of the third party,

not of the defendant;24 similarly, where a third party takes the defendant’s hand and strikes the plaintiff with it, the tort of battery will have been committed by the third party, not by the defendant.25 Nor will the driver of a motor vehicle be liable in battery where a pedestrian, bent on self-destruction, deliberately steps into the road in the face of the oncoming vehicle, in circumstances where the collision is unavoidable and [page 35] without negligence on the driver’s part. The rule as to involuntary acts was stated succinctly by Commissioner Lozier in Stokes v Carlson:26 A contraction of muscles which is purely a reaction to some outside force, convulsive movements of an epileptic, movements of the body during sleep when the will is in abeyance, and movements during periods of unconsciousness, are not ‘acts’ of the person, and the person will not be responsible for injuries inflicted thereby, since such movements are without volition.

Acts done in a state of automatism27 will not be regarded as intentional but, in general, mental illness is not to be regarded as negativing volition.28 Acts performed under threat or pressure from circumstances beyond the control of the actor likewise will not negative volition, but may be pleaded by way of defence, for example, self-defence,29 necessity or duress.

No consent by the plaintiff 3.7

Trespass to the person in the form of either assault or battery presupposes that the act complained of was committed without the consent of the plaintiff. So, for example, it has been held that ‘an assault must be an act against the will of the party assaulted; and therefore it cannot be said that a party has been assaulted by his own permission’.30 The question remains, though, whether it is for the plaintiff to prove absence of consent or whether the onus is on the defendant to prove consent to the alleged trespass. In Australia,31 although not in England,32 or New Zealand,33 the weight of judicial authority, most recently given voice to by McHugh J in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case),34 supports the latter view. This decision is consistent with the notion that the tort of battery is aimed at protecting the physical integrity of the

individual, who need [page 36] only prove a direct interference, at which point the onus shifts to the person who is alleged to have violated that right, to justify the interference.35

Character of the act of the defendant 3.8 There is no battery unless there is an act by the defendant.36 Merely to obstruct entrance to a room by standing still is not, without more, an act in the sense required.37 Nor is battery committed if the incident is one over which the defendant has no control; for example, where the defendant’s horse bolts through no fault of the defendant and collides with the plaintiff, since the incident is not attributable to the defendant.38 A motorist who accidentally (but not negligently) drives onto a police constable’s foot while parking a car commits no battery. However, the situation will be otherwise where the motorist thereafter deliberately ignores the constable’s plea to remove the offending vehicle.

3.9 There can be no battery unless there is contact with the plaintiff.39 Is any contact, however slight, enough? The courts have recognised as an incontestable principle that every person’s body is inviolate. Hence the famous dictum of Holt CJ that ‘the least touching of another in anger is battery’.40 The very breadth of the principle reflects the fundamental nature of the interest sought to be protected.41 As Blackstone42 wrote: [T]he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in the slightest manner.

Consistently with this it would be rational to say that this tort protects not merely the interest in freedom from bodily harm but also that in freedom from insult. There is not, however, any binding judicial authority43 for the latter proposition, although [page 37]

several academic writers have indicated their acceptance of this idea.44 If such a rule does exist, it would help to explain why spitting in another’s face is battery but touching another in a crowd is not.

3.10 It is, moreover, undoubtedly the position that ‘if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is not battery’. The apparent contradiction inherent in this statement (also made by Holt CJ)45 has sometimes been explained on the basis of implied consent:46 people living in a modern society expose themselves inevitably to the risk of bodily contact and impliedly consent to contacts of the nature of jostling in a supermarket, a cinema queue, or a busy street.47 Similarly, the partygoer whose hand is seized in friendship or who receives a hearty slap on the back cannot complain of battery.48 An alternative explanation, and one which now seems to be finding favour with the courts, is to treat such contacts as falling within a general exception covering the unavoidable, harmless incidents of everyday life. The courts cannot and should not be expected to give protection against these contacts, which ought to be regarded as ‘permitted’ contacts. Where does the boundary lie? In Collins v Wilcock49 the test was said to be whether the contact went beyond the ‘generally acceptable standards of conduct’ of everyday life. This test may assist in explaining why, for example, a tap on the shoulder to engage a person’s attention has been held to be a permitted contact50 but a tap on the shoulder for the purpose of effecting an arrest, if the arrest be unlawful, constitutes a battery.51 The former example clearly falls within what may be called ‘community expectations’; the latter conduct is an equally clear example of conduct which would not be tolerated by the general community. Under the Collins v Wilcock test, acts of physical contact will fall into two categories. Contacts which fall within the umbrella of the ‘ordinary conduct of daily life’ or the ‘exigencies of everyday life’ will be permitted contacts.52 Other contacts which fall [page 38] outside this acceptable range will prima facie be cases of battery to which a defence or other justification must be raised.53

3.11

Battery, then, protects a person against all unpermitted54 and unwelcome contacts, irrespective of whether these result in actual physical harm or insult.55 So, taking fingerprints,56 spitting in one’s face,57 cutting one’s hair against one’s will58 are all batteries. As for all trespasses to the person, the act must be a ‘direct’ one; it is not enough that the act ‘causes’ the contact.59 It is difficult to define what are direct as opposed to indirect or consequential acts. Salmond and Heuston60 state that an injury is direct when ‘it follows so immediately upon the act of the defendant that it may be termed part of that act; it is consequential, on the other hand, when, by reason of some obvious and visible intervening cause, it is regarded, not as part of the defendant’s act, but merely as a consequence of it’. This distinction lies at the heart of a series of negligent driving cases involving masters and servants. Under the early common law, where a servant, driving negligently, ran over and injured the plaintiff, the proper form of action was trespass. This was a consequence of the distinction that trespass lay for acts immediately causing injury while case lay for acts that injured the plaintiff only consequentially.61 At that period the proper form of action in such circumstances against the servant’s master was also trespass, the theory being that the acts of the servant were the acts of the master.62 Since M’Manus v Crickett63 the master could only be sued in case (unless he had personally ordered the trespass), on the grounds that the master’s liability was indirect and arose consequentially from the breach of duty in employing an unskilful or negligent servant.64

3.12 A distinction between direct and consequential injuries was crucial in former times because, before the abolition of the forms of action, whenever damage was indirect or consequential the proper action was case, not trespass.65 This distinction remains a valid inquiry even today, despite the difficulties associated with categorising these as one or the other, because, procedural reforms notwithstanding, the courts [page 39] continue to apply it. The Supreme Court of Victoria66 has, for example, stated categorically that the question whether the injury is immediate or

consequential is still vital in spite of procedural reforms, and the old rule still applies that consequential injury cannot be a trespass. Le Blanc J, in Leame v Bray67 made the point that for the injury to be direct, contact must follow immediately from the act of the defendant. He gave the example of a man throwing a log onto the highway; if at the time of its being thrown the log hit any person, an action lay in trespass; but if after it was thrown, any person received an injury by falling over the log as it lay on the road, an action would lie in case. In Scott v Shepherd68 it was held that the contact, to be direct, must be a continuation of the defendant’s act. A mischievous defendant threw a lighted squib made of gunpowder into a crowded market house. It fell on W’s stall. W, to prevent injury to himself and to his wares, threw the squib away. It landed on R’s stall whereupon R instantly threw it again into another part of the market house where it struck the plaintiff in the face and burst, blinding him in one eye. The plaintiff’s action in trespass succeeded on the basis that the defendant had directly inflicted the plaintiff’s injury, whereas W and R had acted, not as free agents, but under ‘compulsive necessity for their own safety and self preservation’. But, where A struck B’s horse which ran off and threw B, who was trampled on by the horse of a third party, B could not recover damages from A in trespass.69

3.13 The contact must be with the person of the plaintiff. This requirement has been extended judicially to encompass situations where no actual touching of the plaintiff occurs but where, for example, the defendant upsets the chair in which the plaintiff is sitting.70 Similarly, where the defendant collided with the plaintiff’s curricle causing the horses to bolt and the plaintiff, in order to preserve his life, to jump out of the curricle and fracture his collarbone, it was held that there was sufficient contact with the body of the plaintiff to maintain an action in battery.71 Where the contact is with an item of the plaintiff’s clothing rather than directly to the body, battery may be committed, at least where the contact involves some element of force. Cases such as R v Day72 and Fagan v Metropolitan Police Commissioner73 may be explained on this basis. In the former it was held that the crime of battery would be committed by slitting with a knife the clothes which a man was wearing; while in the latter the contact was presumably with the police constable’s boot. Whether it is also possible to regard contact with clothing as battery where no force

[page 40] has been applied but where the contact involves an element of insult, is undecided. If, as has been suggested, battery protects against insult and not merely against bodily harm, then contact with anything so closely attached to or associated with the person should be treated, in appropriate circumstances, as a battery. The matter was investigated in Pursell v Horn74 where it was held that throwing water onto the clothes being worn by the plaintiff was not necessarily battery. This decision suggests that contact with things attached to the person may be battery only where this involves a transmission of force to the body of the plaintiff, and that any protection from insult or indignity afforded by the tort of battery is limited to insult or indignity inflicted by touching another person, however trivial the touching may be, for, as Lord Denman CJ stated, the act ‘must imply personal violence’. In America, the forcible seizing of a package from under the plaintiff’s arm has been held to be a battery.75 In the words of Griffith J in Morgan v Loyacomo:76 … the authorities are agreed that, to constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from the plaintiff’s hand or touching anything connected with his person, when done in a rude or insolent manner, is sufficient.

This decision suggests that, provided some element of force or insult accompanies the act, this would lead to a finding of trespass even in cases where the plaintiff’s body has not actually been touched but only the plaintiff’s clothing.

Damages 3.14 Battery, like all suits in trespass, is actionable per se, without proof of damage.77 It seems also that, once the tort is proved, consequential loss in respect of goods, as well as the personal damage78 sustained, can be recovered.79 Moreover, and unlike an action founded in negligence, any and all damage is recoverable, if it results from the wrongful act, whether it is foreseeable or not. The limitation devices of foresight and remoteness, essential to the tort of negligence, are not applicable to intentional torts.80 Despite the doubts as to whether there is a battery when the contact merely injures feelings without causing physical harm, the courts can award

additional damages on account of insult or injury to feelings for a battery which has also caused physical harm.81 This may assume the form of aggravated82 damages. [page 41] Exemplary damages are also available where the defendant acts in contumelious disregard of the plaintiff’s rights83 although not in cases where the wrongdoer has already been punished under criminal proceedings.84 Provocation on the part of the defendant may lead to a reduction of exemplary damages.85

Assault 3.15 That type of trespass to the person known as assault is any act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with his or her person. It may seem surprising that the law of tort should protect an interest in freedom from one particular form of mental anxiety. The explanation must be that since assaults were likely to result in breaches of the peace, trespass was invoked in order to enforce the criminal law. This association with criminal law — the idea that assault is not only a tort but is also a crime — together with the fact that the search for a rational basis for compensation in the form of the plaintiff’s apprehension86 is comparatively recent, explains the emphasis in the old cases on the intention of the defendant rather than on the effect produced by the threat on the plaintiff. There is therefore difficulty in reconciling some old and new cases.

Character of the defendant’s conduct 3.16 The law of assault is substantially the same as that of battery except that apprehension of contact, not the contact itself, has to be established. In practice, when there is a battery there will usually also be an assault.87 This has led to the term ‘assault’ sometimes being used by judges as well as

by lay persons to refer to what is strictly battery rather than, or in addition to, what is strictly assault. As noted by James J in Fagan v Commissioner of Metropolitan Police88 ‘although “assault” is an independent crime and is to be treated as such, for practical purposes today “assault” is generally synonymous with the term “battery” and is a term used to mean the actual intended use of unlawful force to another person without his consent’.89 Battery and assault do, nonetheless, exist independently of each other; thus, for instance, when a person is hit from behind without any warning,90 battery [page 42] alone has taken place. To point a loaded gun at the plaintiff, or to shake a fist under the plaintiff’s nose or to curse the plaintiff in a threatening manner, or to aim a blow which is intercepted, or to surround the plaintiff with a display of force,91 is assault. Clearly, if the defendant acts in a way which manifests an intention to batter the plaintiff, and the latter apprehends it, it is an assault.92 Ultimately, therefore, despite the many similarities that can be attributed to the law of both assault and battery, arising out of the fact that they are both intentional torts, directed at the person, the two are separate and distinct actions. Not all threatening acts constitute assault. What must be apprehended is actual physical contact; the unwanted photographing of a person may be an intrusion of privacy but is not an actionable assault.93 The nature of the act must, moreover, be such as to put the plaintiff in apprehension of immediate physical violence. Tindal CJ in Stephens v Myers94 stated the rule thus: ‘it is not every threat, when there is no actual physical violence, that constitutes assault, there must be, in all cases, the means of carrying the threat into effect’. To shake one’s fist in close physical proximity to a person would be an assault; to shake it at a person some distance away will not be.

3.17 Where the intervention of the police, or other protective measures, ensure that threats of violence cannot be carried out by the defendants, there is no assault committed. So where working miners were bussed into their collieries under police guard, the threats levelled at them by striking miners were not assaults.95 The plaintiffs knew, as reasonable people, that they could not be carried out and whatever distress and emotional strain was caused to

them by the abuse was not the result of apprehension of an immediate battery.

3.18 Will it be an assault to point an unloaded gun at the plaintiff? According to one early case such an action could not be assault because the defendant could not have intended the battery.96 Moreover, in such a situation the defendant has no present means of carrying out the threat.97 By comparison, the ratio of at least one criminal case of that period was that to aim an unloaded gun at a person did constitute assault.98 The tendency of courts nowadays is to regard such actions as assault particularly where the unloaded weapon has been pointed at a person in circumstances in which that person reasonably believes it to be loaded.99 Furthermore, in MacPherson v Beath, Bray CJ held100 that ‘if the defendant intentionally puts in fear of immediate violence an exceptionally timid person known to him to be so [page 43] then the unreasonableness of the fear may not prevent conviction’. These cases are indicative of a shift in emphasis by the courts; instead of concentrating upon the subjective intention of the defendant, the inquiry now focuses upon the objective effect of the threat on the mind of the plaintiff. These decisions may be explained on the basis that the actions of the defendant create a reasonable apprehension of battery on the part of the plaintiff and on principle it would seem that the test should be, not whether the plaintiff apprehends impact, but whether a reasonable person would do so (at least if the defendant does not know of the plaintiff’s timidity). An act which causes a reasonable person to apprehend a battery ought to constitute an assault. In this context it is interesting to note that the New Zealand courts101 have treated as an expression of the common law, a provision in the Crimes Act 1961, defining assault as ‘the act of intentionally applying or attempting to apply force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose’.102 And the New South Wales Supreme Court in Barton v Armstrong,103 in discussing threats made over the telephone, has gone as far as to say that:

[I]n the age in which we live threats may be made and communicated by persons remote from the person threatened. Physical violence and death can be produced by acts done at a distance by people who are out of sight and by agents hired for that purpose. I do not think that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the protection afforded by the civil and criminal law as to assault.

Apart from providing clear endorsement of the view that the test for assault should focus upon reasonable apprehension on the part of the plaintiff, this statement is a reminder that while a present ability to carry out the threat is fundamental to the success of the action, nonetheless this ability is not necessarily dependent upon the close physical proximity of the defendant; nor need the threat be carried out by the defendant in person.

3.19 It is usually stated (but on inadequate authority) that mere words without attendant bodily movement do not constitute an assault.104 But it would seem preferable to treat the statement merely as an illustration of the principle that the defendant must have caused the plaintiff to apprehend an immediate contact rather than to make it a separate rule. If the plaintiff turns a corner, to be confronted by a motionless robber who, with gun in hand, commands ‘hands up’, why should this not be an assault? Moreover, there is no difference in principle between this situation and the one where a robber, approaching the plaintiff from behind, says ‘don’t turn around or I’ll shoot’ (even though, in the latter case, the robber is not in fact armed). Arguably,105 a verbal threat of future force is not an assault; not because it is verbal but because it is not immediate. By contrast, a verbal threat of [page 44] immediate force, understood as such by the plaintiff,106 has all the essential elements of an assault, particularly where it is uttered with the intention of imposing a present restraint upon the conduct of the victim. Some cases tend to suggest that words may, depending on the circumstances, constitute an assault.107 Lord Goddard CJ in R v Wilson108 held that to call out ‘get out your knives’ would itself be an assault. This authority seems at least as strong as the obiter dictum to the contrary of Holroyd J in Meade and Belts case.109 Taylor J in Barton v Armstrong110 held that threats made over the telephone may constitute assault. So:111

[T]o telephone a person in the early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence?

On the other hand, words accompanying an act may explain away what might otherwise be an assault, as when the defendant in Tuberville v Savage,112 with hand on sword said: ‘if it were not assize time, I would not take such language from you’. Tuberville’s case is not to be taken as establishing a rule that a conditional threat may never amount to assault — it all depends on the circumstances in which it is made and the nature of the condition imposed. In that case the declaration of the intent to kill was made subject to an extraneous condition (‘if it were not assize time’), which was known to the other party not to be fulfilled. The unfulfilled condition therefore nullified the threat.113 If, by comparison, the condition relates to the plaintiff’s future conduct and the defendant has no right to impose the condition, as, for instance, where victims are told that they will be hit if they move,114 the defendant will be liable in assault. There is also authority115 that an assault is committed where the defendant demands, by way of a threat, something to which he or she has a legal right, if the threat is an improper way of enforcing that right.

Plaintiff’s state of mind 3.20 To constitute assault, the defendant’s act must put the plaintiff in apprehension of an immediate battery. It is not a requirement that the plaintiff must fear the [page 45] imminent contact, merely that the plaintiff anticipates it taking place.116 Thus the question of assault will not turn on whether the victim is a courageous or a timid person117 unless the defendant knows the plaintiff to be timid.118 Nonetheless, this does not preclude the notion, as discussed above, that the

apprehension must be reasonable, nor that this is measured in objective rather than subjective terms. The time frame is an important element in the tort of assault. The plaintiff must apprehend imminent physical violence, not merely violent contact at some future period. Thus, while not disagreeing with the contention in Barton v Armstrong119 that threats made by telephone might, in certain circumstances, constitute assault, Australian courts in subsequent cases have stressed that the central issue is whether the telephone threat can properly be ‘a threat of immediate violence’.120 In this regard, as explained by White J in Zanker v Vartzokas,121 the question to be asked is not, as stated by Taylor J in Barton, ‘how immediate does the fear of physical violence have to be?’ but rather ‘how immediate must the threatened physical violence be after the utterance of the threat which creates the fear’? This latter question must be the correct one as the requirement for assault is that the threat create an apprehension of immediate or, at least, imminent violence. The answer to the question is, nevertheless, one of degree. For example, in Zanker a woman imprisoned in a moving car and threatened by the driver with physical harm once they arrived at ‘his mate’s house’ was held to have an apprehension of imminent violence despite the fact that she had no idea how far away the house was or how long it would take to get there. By comparison, the criminal sent to prison for a term lasting several years, who, at the time of sentence, threatens the judge with violence upon release, would not be liable in assault.122 In order to have an apprehension of imminent physical contact, the plaintiff must know of the threat at the time it is made.123 In this regard assault differs from battery.

Intentional Physical Harm Other than Trespass to the Person 3.21 A wilful statement (or act)124 of the defendant, calculated to cause physical harm to the plaintiff and in fact causing physical harm to him or to her, is a tort. [page 46]

This was established by Wright J in Wilkinson v Downton.125 The defendant, knowing it to be untrue, told the plaintiff by way of a practical joke that her husband had been seriously injured in an accident. Believing this, the plaintiff suffered nervous shock resulting in serious physical illness, and was held to have a cause of action.126 The basis of liability was the fact that the defendant had wilfully acted in a manner calculated to cause physical harm to the plaintiff. Her legal right to personal safety had been infringed and she had been occasioned physical harm without justification. The English Court of Appeal upheld Wilkinson’s case in Janvier v Sweeney.127 Here the defendants, private detectives, told the plaintiff that unless she procured certain letters belonging to her mistress for them, they would disclose to the authorities that her fiancé, an internee, was a traitor; they knew that they had no such evidence. She recovered damages for physical illness brought on by the nervous shock occasioned by the defendants’ conduct. The court held that threats, addressed to a person, which were calculated to cause injury, which were uttered with the knowledge that they were likely to cause such injury, and which actually caused such injury, were actionable. The decisions in both these cases were upheld in Australia by the High Court in Bunyan v Jordan;128 however, a majority129 of the court found on the facts before them that no tort had been committed. Here the plaintiff, an employee of the defendant, observed him handling a loaded revolver and, after leaving his office, overheard him threaten to ‘shoot someone’. Some time later she heard a shot fired and, thinking that someone had been killed, she suffered nervous shock. It transpired that, although the gun had been discharged, no one had been injured. Latham CJ130 found it significant that the harmful words were not uttered to the plaintiff nor spoken in her presence; she merely overheard them by chance, through no design or fault on the part of the defendant. As the judge noted ‘[n]one of the cases has gone so far as to suggest that a man owes a duty to persons who merely happen to overhear statements that are not addressed to them’. Accordingly, the acts of the defendant, seen as a whole, could not be said to be calculated or likely to cause her harm. Nonetheless in Stevenson v Basham131 the appellant was held liable in circumstances where the respondent’s wife suffered nervous shock and a miscarriage after overhearing the appellant threatening to burn her husband out of their house. The decision is justifiable on the basis that, unlike

the situation in Bunyan’s case, the appellant knew that, even though she was not present, she was within earshot and, although ignorant of her state of health, he ‘must have known or should have known, that his boisterous and threatening behaviour was calculated to frighten any person who … might be an inmate’.132 [page 47]

3.22 It has been suggested that it is wrong to state that in this tort one must prove that the defendant intended to cause the harm, and that the cases decide that one need only prove an intention to do the act.133 But the cases do not bear this out.134 As Wright J said:135 ‘One question is whether the defendant’s act was so plainly calculated136 to produce some effect of the kind that was produced that an intention to produce it ought to be imputed to the defendant’. And, in Janvier v Sweeney137 Duke LJ emphasised that liability was based on the fact that the defendant intended to terrify the plaintiff for the purpose of attaining an unlawful object. Similarly, the plaintiff’s attempt in Bunyan’s case to base an action on the principles enunciated in Wilkinson and Janvier failed because the defendant’s actions could not be said to be calculated to cause harm to any person.138 Remembering that intention covers the situation where a person must be presumed to have intended the natural consequences of his or her conduct, it seems clear that the defendant must be proved to have intended to violate the plaintiff’s interest in remaining free from physical harm — an intention to do an act the consequence of which is physical harm is not enough.139 Motive, as such, is irrelevant to the question of liability. Consequently, that a joke is the motive, as in Wilkinson’s case, cannot be taken into account one way or the other.

3.23 Is this tort limited to nervous shock cases? Despite its application in Wilkinson and Janvier, there seems no inherent reason why it should be so limited. The tort might usefully provide a remedy in many situations where there might otherwise be no cause of action. For example, acts such as putting poison in someone’s tea or passing on an infectious disease like AIDS, which only indirectly cause harm, cannot be trespasses but should properly be regarded as intentional physical harm within the principle of

Wilkinson v Downton. The old cases declaring it to be tortious deliberately to set spring guns or other mechanical devices with the intention of injuring trespassers seem also to belong to this category.140 It is, moreover, inappropriate to regard these acts as negligence when the harm has been deliberately inflicted, and the old cases refrain from dealing with the problem on that basis.141 In so far as the tort has been applied to nervous shock situations, the traditional view is that the harm suffered, to be actionable, must be more than merely a transient [page 48] reaction to emotional distress, however initially severe.142 But in Khorasandjian v Bush,143 even though there was no medical evidence to show that the plaintiff was suffering from any physical or psychiatric illness resulting from the defendant’s harassment of her following the breakdown of their relationship, the English Court of Appeal held that it was appropriate to grant a quia timet injunction to prevent future harm, as in its view there was an ‘obvious risk’ that continued and unrestrained future harassment would cause such an illness.144 Whether, as the court said, it was merely applying the law in line with established principles,145 or whether it was extending these principles, as would appear to be the situation, the practical reality of that case was that the plaintiff was able to obtain at least a limited remedy (injunction) for mental distress short of nervous shock.146 However, the Court of Appeal decision was later overruled, in Hunter v Canary Wharf Ltd,147 and more recently the House of Lords in Wainwright v Home Office148 has raised serious questions about whether the law should extend to compensate for the mere suffering of distress which does not amount to recognised psychiatric injury, even though brought about intentionally. In light, moreover, of the view expressed both in Wainright’s case149 and, latterly, by the High Court in Magill v Magill150 that the Wilkinson and Janvier line of cases are really early nervous shock cases which today could be accommodated within the tort of negligence, Australian151 and New Zealand courts are unlikely to recognise152 (as American courts have done)153 either a discrete tort of intentional infliction

of serious mental distress or an extension of the Wilkinson v Downton principle to this situation.154 In Tucker v News Media Ownership Ltd155 the court accepted the possible application of the tort to the situation in which a newspaper reporter threatened a person suffering from a serious heart condition with publication of details of his criminal past. While this decision might be explained as a preventative approach in much the same way as that adopted in Khorasandjian, the court seemed prepared to [page 49] go even further by speculating that the Wilkinson v Downton principle might usefully be adapted to cover essentially the same field as that covered in America by the tort of personal privacy, thereby providing a remedy to a person whose privacy has been invaded by public disclosure (or the threat of such disclosure) of private facts.156

False Imprisonment 3.24 The trespass rather inadequately known as false imprisonment may be defined as an act of the defendant which, without lawful excuse or justification, directly and intentionally or negligently causes the confinement of the plaintiff within an area delimited by the defendant. This tort protects the interest in freedom from confinement, that is, in freedom of movement. Public officials relying on statutory powers to deprive persons of their liberty are required strictly to comply with the statutory provisions governing the use of such powers.157

State of mind 3.25 Normally this tort must be intentional in the sense that the defendant must intend to do an act which is at least substantially certain to cause the confinement.158 Fault159 or malice is irrelevant.160 On principle, negligence ought to be enough to satisfy the mental requirement of the tort. Accordingly,

if a person locks a door, being negligently unaware of the presence of somebody in the room, or even if that person negligently allows such a door to lock, this should be false imprisonment. Not all academic writers would agree. Some161 maintain that trespass does not lie for negligent conduct and the only cause of action available to the carelessly imprisoned defendant will be negligence; so, unless the plaintiff can prove damage, no action will lie. Others162 have said that although the traditional concern of the common law with the liberty of the subject suggests that there should be liability for negligent confinement, the point remains an open one. The view that an action in false imprisonment will lie even for a negligent act may well find greater acceptance in Australia than in England since here it is generally accepted that trespass to the person may be committed either intentionally or negligently.163 And although the [page 50] decisions establishing this have been concerned only with trespass in the form of battery, it is likely that, by analogy, false imprisonment is covered as well.164

Character of the act 3.26 Like other trespasses, this tort is actionable per se but the courts have shown a reluctance to afford so great a protection against just any restraint of the person; the rule is that the imprisonment must amount to a total restraint165 of the liberty of the person, for however short a time,166 and not merely be a partial obstruction of a person’s will, whatever inconvenience it may cause. This is a question of fact.167 Accordingly, if a person merely obstructs the passage of another in a particular direction, whether by threat of personal violence or otherwise, but not preventing that person from going in another direction,168 no imprisonment occurs. Nor, it was held in an old case, was it false imprisonment if A were able to escape from confinement by a nominal trespass on the land of a third party.169 More recently the House of Lords in R (Munjaz) v Mersey Care NHS Trust170 held that solitary confinement unlawfully and unjustly superimposed on a lawful prison

sentence entitled prisoners to sue the authorities for material breach of residual liberty. In so doing it overruled its previous decision in R v Deputy Governor of Parkhurst Prison; Ex parte Hague171 that such confinement did not deprive them of any liberty which they had not already lost when initially confined. As to the question whether a detention initially lawful could be rendered unlawful (and thereby false imprisonment) by intolerable conditions of confinement,172 the answer would appear to depend upon whether these involve a further erosion of residual liberty or whether they go simply to the detention itself or merely to its conditions.173

3.27 A precise place of imprisonment is not important. Thus ‘every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets’.174 [page 51] One may be confined in a house,175 in a department store,176 in a prison,177 in a mine,178 or in a vehicle179 or aircraft. How large the area of confinement can be must obviously depend on the circumstances of each particular case — it could be tortious to restrict a person to a large country estate, or perhaps even to restrain a person from leaving, say, Norfolk Island. However, in Louis v Commonwealth180 the court rejected the argument that persons deported to Australia but who were at perfect liberty to move around the country had been falsely imprisoned. And if A prevented B from landing in Australia from New Zealand that act could not be a false imprisonment; since B could proceed elsewhere, the restraint would not be total.181 The area of confinement must have a boundary and the boundary must be fixed by the defendant. Coleridge J in Bird v Jones explained the position thus:182 A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may in itself be moveable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing … Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go whithersoever one so pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.

3.28 It is thought that if a person can only escape confinement at the risk of

personal injury or if it is otherwise unreasonable183 to attempt escape, it constitutes the tort of false imprisonment. Townley J in Burton v Davies184 said: If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.

[page 52] Moreover, if a means of escape exists but this is not apparent, the means will not be regarded as reasonable and an action for false imprisonment may lie.185

3.29 The barriers need not be physical;186 a restraint effected by an assertion of authority is enough although in such cases the plaintiff must feel under an obligation to submit to the instructions or dictates of the defendant.187 Accordingly, when a Commissioner in Lunacy wrongfully used his authority to dissuade the plaintiff from leaving his office, he was held liable in false imprisonment.188 The High Court in Watson v Marshall and Cade189 similarly held a police detective to have falsely imprisoned the plaintiff, when in his official capacity the detective made clear to the plaintiff that he was to go to a psychiatric hospital, and the plaintiff had a justified apprehension that, if he did not submit to what was asked of him, he would be compelled by force to do so. Moreover, restraint on movement in the street even by a mere threat of force which intimidates a person into compliance without any laying on of hands is false imprisonment.190 So those who seek compensation for false imprisonment because they have been wrongfully arrested by police need not establish that the police officer touched them.191 However, the Supreme Court of South Australia in Symes v Mahon192 made the point that, in cases of false imprisonment, where there has been no application of physical force to the person alleging the imprisonment, there must be evidence of complete submission by that person to the control of the other party; for if the plaintiff evades going or refuses to go with the latter, it cannot be said that the plaintiff has been deprived of freedom. But the plaintiff need not establish that he or she risked violence by resisting the arrestor. And, where a person

accused of shoplifting decides to avoid the embarrassment of an altercation in a crowded street by accompanying the store detective to the manager’s office or a police officer to a police station, there is sufficient compulsion to constitute the tort of false imprisonment.193

3.30 No minimum time limit is specified for the success of the action; in principle therefore, however short the period of detention, an action for false imprisonment will lie, provided that the other requirements of the tort are satisfied.194 British courts, influenced by decisions of the European Court that the confinement should [page 53] be ‘for not a negligible length of time’,195 have tended, in recent decisions, to adopt a pragmatic approach to this issue.196

3.31 False imprisonment normally results from some positive act.197 Herd v Weardale Steel, Coal and Coke Co198 raised the issue of liability in respect of a mere omission. The plaintiff, a miner employed by the defendants, descended their mine in pursuance of his contract of employment. Following a dispute his request to carry him to the surface in their cage was refused on the basis that their contractual obligation was to transport him to the surface at the end of the shift. The action in false imprisonment failed. This case is authority for the proposition that failure to provide a means of egress from premises is not a tort where there is no duty to provide it: thus, if A falls down the mine of B while trespassing it is not false imprisonment should B then refuse to bring A to the surface in B’s lift.199 What it does not decide is whether the failure to carry out a duty, whether contractual or otherwise, may constitute a false imprisonment even though there is no positive act on the part of the defendant. The House of Lords did not consider this point, but the two judges who constituted the majority in the Court of Appeal held that the omission to perform a contractual duty was not a false imprisonment.200 Robinson v Balmain New Ferry Co Ltd,201 often considered as raising the same issues as Herd’s case (perhaps because both involve contractual situations), cannot, however, be regarded as an example of mere omission to act in that the company’s servants actively blocked the plaintiff’s exit from

the wharf. Robinson had paid a penny to enter the wharf in order to board a ferry. However, rather than wait for its arrival, he attempted to leave the wharf by another turnstile, the only other means of exit except by water.202 He refused to pay another penny as required by the notice and was forcibly restrained from leaving by the defendant’s servants. Both the High Court and the Privy Council rejected his claim in false imprisonment. One of the reasons advanced by both courts was that the plaintiff had contracted to leave the wharf via the ferry and that the defendants were not obliged to let him leave by any other way. If he wished to use the turnstile as a means of exit he could do so only on [page 54] complying with the usual conditions which the company were lawfully entitled to impose (a penny payment).203 The Robinson decision has been criticised204 on the basis that at common law a person cannot restrain the liberty of another to enforce a mandatory condition as to exit, and that any such restraint amounts to false imprisonment unless authorised by law. It is also arguable205 that even where such contractual conditions are construed as reasonable there may still be liability for false imprisonment, because the reasonableness of the condition as to exit does not determine whether the restraint of liberty used to enforce the condition is or is not false imprisonment. No person can, by imprisoning another, force that other to abide by or conform to a contractual condition if that person does not consent to do so. If compliance is required by contract, a person can choose to abandon the contract and assume liability for the breach. That person cannot then be compelled to perform or comply with the contract unless specific performance is ordered by the courts. Restraining another’s liberty to enforce a condition as to exit from premises is therefore false imprisonment, whether or not that person knows of the existence of the condition, whether the condition is or is not contractual and whether the condition is or is not reasonable.206

3.32 An imprisonment which begins lawfully may later become a false imprisonment even though there is no further act on the part of the defendant. In Cowell v Corrective Services Commission of New South Wales207 the

defendant was held liable for false imprisonment by keeping a prisoner in custody beyond the date upon which he was entitled to be released as a result of remissions which he had earned.

Knowledge of the plaintiff 3.33 Whether the plaintiff must know that the defendant is committing an act which restrains his or her freedom is still unsettled. On principle, knowledge of confinement ought to be required, because the interest protected seems to be a mental one, as in assault. Two early cases offer differing perspectives. In Herring v Boyle208 it was held that a school teacher who detained a boy at school during the holidays, because his mother had not paid the fees, was not liable when the child did not know of any act of detention and, in any event, where there was no evidence of actual restraint. In Meering v Grahame-White Aviation Co209 the plaintiff, a company employee, voluntarily accompanied two works detectives to the works office to answer questions about certain thefts. He remained in the office for a considerable time, unaware either that he was under suspicion or that the detectives [page 55] were stationed outside the room with instructions to stop him from leaving should he attempt to do so. Warrington LJ did not consider the question of knowledge nor is it clear whether it was in fact argued, but he found evidence that the plaintiff was no longer a free man. Duke LJ, dissenting, held that the plaintiff’s lack of knowledge, the fact that he himself did not show ‘the slightest indication of a suspicion that he was restrained of his liberty to go if he thought fit to go’,210 was conclusive of the fact that there was no evidence for the jury. However, the ratio decidendi of Atkin LJ, in a judgment which did not refer to Herring v Boyle, was that knowledge was irrelevant. His view was that the tort of false imprisonment protects freedom of movement as such, not the mental effects of being knowingly confined which would merely be relevant in fixing the amount of damages.211 Accordingly he held:212

I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic … though the imprisonment began and ceased while he was in that state.

It may be possible to reconcile Herring’s and Meering’s cases by confining the need for knowledge to cases where no actual physical restraint is employed, but only words and conduct (as was the situation in Herring). But this is not a totally satisfactory solution because the restraint of liberty, though not accompanied by physical force, is nonetheless a real one. The House of Lords in Murray v Ministry of Defence213 has since expressed a preference for the view214 that it is not an essential element of the tort of false imprisonment that the victim should be aware of the fact of the restraint; regardless of the victim’s knowledge, the victim’s liberty has, in fact, unlawfully been interfered with. This line of reasoning was espoused in Myer Stores Ltd v Soo,215 O’Bryan J adding that knowledge of the restraint was relevant to the issue of damages. More recently, the Victorian Court of Appeal in McFadzean v Construction, Forestry, Mining and Energy Union,216 adopted a similar approach, noting that injury to feelings and damage to reputation, both of which harms are classically associated with false imprisonment, may still be issues even where the plaintiff is unaware of the fact of imprisonment. The obiter nature of these statements means, however, that, in Australia, the question must still be regarded as unsettled. If the action in false imprisonment is seen solely as a means of adjusting losses between individuals, Herring’s case might be preferable on the basis that, as the plaintiff is unaware of the imprisonment, no injury has been suffered. If, on the other hand, the tort has a deterrent function to prevent wrongful behaviour and enforce civil liberties, Lord Atkin’s view in Meering appears to be more appropriate. [page 56]

Who is liable, the police officer or the aggrieved defendant who calls in the police officer? 3.34 In an action for false imprisonment, the physical restraint must have been directly caused. So, it is not false imprisonment to cause a person to be

temporarily detained in an asylum by making false statements to the authorities about his behaviour,217 nor to dig a trench into which the plaintiff falls.218 A person who has indirectly brought about an arrest or other restraint might be liable in malicious prosecution (an action on the case) but the burden of proof and the requirements for actionability of conduct in such circumstances are much more stringent.219 One effect of this is to provide protection for citizens who, labouring under honest mistakes, set legal proceedings in train.220 The usual question to be asked when deciding who can be sued for false imprisonment is: Who was ‘active in promoting and causing’ the confinement?221 It is often necessary to determine who can be sued when a person is detained and charged for an offence where the arrest is unjustified by law.222 (The separate question of when lawful arrest is a defence is examined in 6.35ff.) In particular, will the defendant by signing the charge sheet at the police station be answerable for the detention? In itself, signing the charge sheet is not evidence of a detention by the signatory,223 but if the defendant also states that he ‘did give him in charge’ it may be.224 Where, however, the defendant sent for a police officer, who having made independent inquiries then arrested the plaintiff on his own authority, and, after having accompanied the officer and plaintiff to the police station, was directed to sign the charge sheet, the defendant was held not to be liable for false imprisonment.225 But if the officer had refused to take the plaintiff into custody unless the defendant charged the plaintiff, then the defendant would be answerable.226 On the other hand, [page 57] a citizen who, in reply to the inquiry of the officer, merely identifies the plaintiff as the suspected criminal, is not liable in false imprisonment.227 The same would presumably hold true where a person picks out a suspect from a group of people in an identity parade. In such situations the defendant is merely giving information to the police upon which they may decide to make an arrest. In each case, therefore, the issue is whether the officer effecting the arrest is acting independently or as an agent of the defendant. The issue assumes greater relevance in cases where the police are immune from

liability under statutory provisions authorising them to arrest persons on the basis of reasonable suspicion. The English Court of Appeal228 has held that in such cases it is necessary to consider the distinct liability of those who initiated the steps leading to imprisonment and those who effected it, an approach labelled ‘obviously correct in principle’ by McHugh J in Ruddock v Taylor.229 That the line between directly and indirectly causing another to be restrained is often a fine one to draw is illustrated by the case of Dickenson v Waters Ltd.230 The plaintiff, accused by an inspector in a ‘cash and carry’ store of having items in her possession for which she had not paid, accompanied him into the manager’s office. The police constable, who was called in, was reluctant to arrest her, and asked the manager ‘do you wish to proceed?’ The manager’s reply was ‘yes’. The plaintiff was then conveyed to Paddington Police Station and charged with larceny but later acquitted. In her subsequent action against the company for false imprisonment, the court held that the jury was justified in drawing the conclusion that the manager had told the police officer to arrest the plaintiff and so was directly responsible for her imprisonment.

3.35 In some cases the same incident may result in both the private citizen who calls in the police and the police officer being liable for separate counts of false imprisonment. This happened in Bahner v Marwest Hotel Co Ltd.231 The plaintiff, after refusing to pay for a bottle of wine brought to him by a waiter, tried but was prevented from leaving the premises by the restaurant’s security officer. The police officer who was called in arrested the plaintiff on a charge of obtaining goods by false pretences. The plaintiff was taken to the police station and held in a cell. Upon discovering that the charge against the plaintiff was unfounded, the police officer laid a charge of intoxication, which was subsequently dismissed. The court held that two false imprisonments had been committed: one by the security officer in barring the plaintiff’s exit; the other by the police officer for arresting and jailing the plaintiff whom he had no reasonable grounds to believe was guilty of an offence.

3.36 If the defendant wrongfully gives the plaintiff into custody and then the magistrate remands the plaintiff the defendant is answerable in false imprisonment for damages only up to the time of the judicial remand. Once a

judicial act interposes, liability for false imprisonment ceases.232 It becomes important at this stage to [page 58] distinguish false imprisonment from malicious prosecution, a tort concerned with the abuse of judicial process, and which, unlike false imprisonment, calls for proof of malice and of absence of reasonable cause.233 Therefore if A wrongly prefers a complaint against B before a magistrate (a judicial officer) who then issues a warrant or tries B forthwith or remands B, A has not committed the tort of false imprisonment,234 even if the magistrate has no jurisdiction.235

Damages 3.37 False imprisonment is actionable per se, that is, without proof of damage. Damages are awarded in the first instance not as compensation for loss but as a non-compensatory means of signifying the infringement of a right.236 So, as Walsh J said in Watson v Marshall and Cade,237 ‘the failure to prove any actual financial loss does not mean that the plaintiff should recover nothing … an interference with personal liberty even for a short period is not a trivial wrong’.238 Of course, where pecuniary loss has been suffered it is also recoverable. In addition to damages for loss of liberty the court may compensate injury to feelings and loss of reputation.239 In assessing these general damages, account may be taken of the defendant’s conduct to the time of the verdict as this may be relevant particularly to the assessment of the injury to feelings (indignity, mental anguish including the anxiety and uncertainty undergone in court proceedings).240 Damages are at large and may be aggravated241 by the circumstances.242 No aggravated damages will be awarded, however, where the plaintiff has been guilty of provocative and insulting conduct although provocation cannot serve to reduce the real damages.243 [page 59]

Exemplary damages may be awarded against a police officer or other official who falsely imprisons the plaintiff.244

Other Forms of Compensation 3.38 Many of the torts discussed in this chapter will also be crimes. The criminal injuries compensation legislation245 in each of the Australian jurisdictions and the Accident Compensation Act 2001 (NZ), enable victims of crimes of violence to claim compensation. The operation of these schemes is discussed in 12.12ff and 12.43ff. _______________ 1.

Even in England, Letang v Cooper [1965] 1 QB 232; [1964] 2 All ER 929 (CA) notwithstanding, a 15-year-old youth was held liable by Talbot J for his prank of pushing a man into a swimming pool: Williams v Humphrey, The Times, 13 February 1975.

2.

In Hillier v Leitch [1936] SASR 490, eg, a motorcyclist negligently ran down and injured another person; an action in trespass was available. Conversely, in Dunn v Pain (1991) 57 SASR 133 the appellant was able to bring an action in negligence for injury suffered after being deliberately pushed into his swimming pool by a guest at a party.

3.

Bici v Ministry of Defence [2004] EWHC 786 (QB) at [67]; Breslin v McKevitt [2011] NICA 33 at [19] (by analogy with the criminal law). See also Carter v Walker [2010] VSCA 340 at [215(8)].

4.

McNamara v Duncan (1971) 26 ALR 584 at 587 per Fox J (ACTSC). The defendant deliberately struck the plaintiff during a game of Australian Rules Football outside the rules of the game. This was held to be a trespass.

5.

For example, T v T [1988] Fam 52; 1 All ER 613; Trindade, ‘Intentional Torts: Some Thoughts on Assault and Battery’ (1982) 2 OJLS 211 at 220. Intention may be present even where the defendant acts impulsively or on the spur of the moment; see Sibley v Milutinovic (1990) Aust Torts Reports 81-013 (ACTSC) where a deliberate punch to the jaw by one player to another during the course of a soccer match was held to be a trespass.

6.

(1937) 57 CLR 1 at 12.

7.

(1832) 5 C & P 372.

8.

(1866) 4 F & F 1019.

9.

Similarly in America: Restatement, Torts (Second), s 8A. Also Garratt v Dailey (1955) 279 P 2d 1091 at 1094.

10.

But cf the position at criminal law. See, eg, Gillies, Criminal Law, 4th ed, 1997, pp 51–6 and Criminal Code (Cth) s 5.2(3).

11.

Prosser, ‘Transferred Intent’ (1967) 45 Tex L Rev 650 suggests that Scott v Shepherd (1773) 2 Wm Bl 892 may be explained on the basis of this doctrine.

12.

Ibid at 899 per De Grey CJ; cf Coward v Baddeley (1859) 4 H & N 478 at 480 per Pollock CB.

13.

Restatement, Torts (Second), s 32.

14.

(1932) 48 SW 2d 903 at 904. In the course of an argument A struck at B with a pair of pliers. B dodged the blow which landed accidentally on B’s wife, who was standing near her husband.

15.

(1773) 2 Wm B1 892.

16.

(1937) 57 CLR 1.

17.

As to what constitutes ‘offensive’ contact, see 3.9ff.

18.

[2004] EWHC 786 (QB) at [68ff].

19.

[1984] NI 356 (CA) at 361. The other cases relied on in Bici were James v Campbell and Ball et Uxor v Axten cited in fns 7 and 8 above.

20.

See the cogent criticism by Beever ‘Transferred Malice in Tort Law?’ (2009) 29 Legal Studies 400, who argues that, while the doctrine may be relevant to criminal law, it has no place in tort law.

21.

For example, R v Phillips (1971) 45 ALJR 467 at 472 per Barwick CJ; and in Wilson v Pringle [1987] QB 237; [1986] 2 All ER 400 (CA); cf T v T [1988] Fam 52; 1 All ER 613.

22.

See Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at [49]–[55] (CA). The view that battery requires touching that is offensive to the plaintiff rather than hostile is supported by Boughy v R (1986) 161 CLR 10 at 24–5; 65 ALR 609 at 619–20 per Mason, Wilson and Deane JJ and by Lord Goff in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 73; [1989] 2 All ER 545 at 563–4 (HL); Hutchinson v Fitzpatrick [2009] ACTSC at [53]–[54].

23.

See Atrens, ‘Intentional Interference with the Person’ in Linden (ed), Studies in Canadian Tort Law, 1968, p 396.

24.

Smith v Stone (1647) Sty 65; 82 ER 533. Also Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107 at 133; 14 ALR 273 at 294 per Gibbs J. See further 6.3.

25.

Weaver v Ward (1616) Hob 134.

26.

(1951) 240 SW 2d 132 at 135–6. The defendant in this case, while asleep on the back seat of the plaintiff’s car, pushed the driver’s seat forward causing the plaintiff to be thrown against the steering wheel and to lose control. This was not regarded by the court as a voluntary action.

27.

Defined as a total loss of consciousness by Neill J in Roberts v Ramsbottom [1980] 1 All ER 7.

28.

See Atrens, fn 23 above; Fridman, ‘Mental Incompetency’ (1964) 80 LQR 84.

29.

See Gilbert v Stone (1648) Sty 72; 82 ER 539.

30.

Christopherson v Bare (1848) 11 QB 473 at 477 per Patteson J (CA); R v Donovan [1934] 2 KB 498 (CA) (burden on Crown on charge of indecent assault to prove beyond reasonable doubt that there was no consent). Jenkins, Bullen and Leake’s Precedents of Pleadings, 10th ed, 1950, p 841, limits the principle of Christopherson v Bare to where the plaintiff merely alleges ‘battery’ without further particulars: sed quaere what authority for the statement. Bullen and Leake, Precedents of Pleadings, 3rd ed, 1868, p 699, however, stated generally that leave and licence were pleaded on the general issue because there was then no trespass. Latter v Braddell (1881) 50 LJQB 448 (CA) also shows that the plaintiff must prove want of consent.

31.

In Canada it is clear that a defendant who relies on the defence of consent bears the onus of proving it: Kelly v Hazlett (1976) 75 DLR (3d) 536 at 556 per Morden J; Hambley v Shepley (1967) 63 DLR (2d) 94 at 95 per Laskin J; Schweizer v Central Hospital (1974) 6 OR (2d) 606 (HC); Allan v New Mount Sinai Hospital (1980) 109 DLR (3d) 634 (Ont HC); Non-Marine Underwriters, Lloyds of London v Scalera [2000] 1 SCR 551.

32.

Freeman v Home Office (No 2) [1983] 3 All ER 589 at 594–5; affirmed [1984] QB 524; 1 All ER 1036 (CA) (prisoner injected with mood-changing drugs).

33.

H v R [1996] 1 NZLR 299 (HC) (sexual assault).

34.

(1992) 175 CLR 218 at 310–11; 106 ALR 385 at 453. See discussion in 2.13–2.17.

35.

Scalera above, at [10] and [15]. In practice consent is often referred to as a matter of defence; as such it will be discussed in detail in 6.4ff. The point to be made here is that, if the defendant can show that he or she acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail.

36.

In Platt v Nutt (1988) 12 NSWLR 231, an action in trespass failed because the plaintiff did not establish that she was injured as a result of the forceful conduct of the defendant and not as a result of her own independent actions.

37.

Innes v Wylie (1884) 1 Car & Kir 257 at 263 per Lord Denman CJ, who, in summing up, stated that the question was whether the policeman in that case took any active measures to prevent the plaintiff from entering the room or whether he merely stood in the doorway passively, not moving at all. If he stood entirely passive like a door or a wall to prevent the plaintiff from entering the room, no assault had been committed. Campbell v Samuels (1980) 23 SASR 389 at 392–3 per Zelling J provides obiter support for Innes v Wylie.

38.

Gibbons v Pepper (1695) 2 Salk 637; Weaver v Ward (1616) Hob 134; Holmes v Mather (1875) LR 10 Ex 261.

39.

Now supported by Kaye v Robertson [1991] FSR 62 at 70 per Bingham LJ (CA) (although a monstrous invasion of privacy, photographing a person lying in hospital recovering from brain surgery could never amount to battery or assault); cf Glidewell LJ at 68–9 who says that setting off a camera flash-bulb may be a battery where ‘a bright light is deliberately shone into another person’s eyes and injures his sight’.

40.

Cole v Turner (1704) 6 Mod Rep 149.

41.

Per Goff LJ in Collins v Wilcock [1984] 1 WLR 1172 at 1177.

42.

Commentaries, 17th ed, 1830, Vol III, p 120.

43.

But see obiter statement of Gummow J in Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 at [57] to the effect that personal dignity is among the interests protected by the tort of battery.

44.

Luntz, Hambly, Burns, Dietrich and Foster, Torts: Cases and Commentary, 6th ed, 2009, 11.4.1 define the tort of battery as committed by directly and intentionally (or as we have seen, negligently) bringing about a harmful or offensive contact with the person of another. Similarly, Salmond and Heuston on the Law of Torts, 21st ed, 1996, p 120 states that the interest that is protected by the law of assault and battery is not merely that of freedom from bodily harm, but also that of freedom from such forms of insult as may be due to interference with the person. See also Glazebrook, ‘Assaults and Their Consequences’ (1986) 45 Camb LJ 379.

45.

Cole v Turner (1704) 6 Mod Rep 149.

46.

Collins v Wilcock [1984] 1 WLR 1172 at 1177 per Goff LJ.

47.

In R v Tate [2010] ACTSC 144 at [67]–[68] it was suggested that, in a prison environment, given the need to maintain order, the implied consent to incidental physical contact given by a custodial officer to a prisoner is more limited.

48.

Tuberville v Savage (1669) 1 Mod Rep 3.

49.

[1984] 1 WLR 1172 at 1178.

50.

Wiffin v Kincard (1807) 2 Bos & Pul 471.

51.

Rawlings v Till (1837) 3 M & W 28. What if a police officer who, knowing that a passing pedestrian does not wish to answer questions, nonetheless continues to tap the latter on the shoulder with a view to asking them? Donnelly v Jackman [1970] 1 All ER 987 suggests that such contact may be permitted. Would the answer be any different in the situation where a spectator, watching a house on fire, repeatedly seeks to offer criticism and advice to one of the firefighters and, in order to attract attention, lays hands on the firefighter? See Coward v Baddeley (1859) 4 H & N 478.

52.

Boughy v R (1986) 161 CLR 10 at 24; 65 ALR 609 at 619. In T v T [1988] Fam 52 at 66; 1 All ER 613 at 624, the court held that urgent medical operations or medical treatments (in this case terminating the pregnancy of a severely mentally retarded young woman) did not fall within the exigencies or ordinary conduct of everyday life; cf Wilson v Pringle [1987] QB 237 at 252; [1986] 2 All ER 440 at 447 (CA). In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 16 (CA), Lord Donaldson MR preferred to classify such acts as being within ‘generally acceptable standards’.

53.

At a political rally in a city square, a young woman tries to make her way through the crowd towards the prime minister and, in so doing without using any great force takes hold of the arm of an older woman blocking her way, moving her slightly to one side. Some jostling follows and police intervene. The young woman pushes a police constable in the chest with the open palms of her hands. These are token pushes and it is common ground that they have no real effect on the police constable. Has battery occurred? See Campbell v Samuels (1980) 23 SASR 389 at 392, where Zelling J held that an assault [sic] had occurred: ‘The least touching, if intentional, and done in a hostile manner, is an assault’.

54.

As to whether strip searches by prison authorities may constitute battery, see Wainwright v Home Office [2004] 2 AC 406; [2003] 4 All ER 969; or may violate Article 8 of the European Convention on Human Rights (right to respect for private life); see Case of Wainwright v UK [2006] ECHR 807; (2007) 44 EHRR 809.

55.

As stated in Battiato v Lagana [1992] 2 Qd R 234 at 236, ‘[T]here is no need to prove that contact caused any injury or harm, it is the “mere trespass” which is the harm’.

56.

Dumbell v Roberts [1944] 1 All ER 326 at 330 per Scott LJ; Callis v Gunn [1964] 1 QB 495; [1963] 3 All ER 677.

57.

R v Cotesworth (1704) 6 Mod Rep 172.

58.

Forde v Skinner (1830) 4 C & P 239.

59.

On causation, see 9.1ff.

60.

Salmond and Heuston on the Law of Torts, 21st ed, 1996, pp 5–6.

61.

Day v Edwards (1794) 5 TR 648; 101 ER 361.

62.

Scott v Davis (2000) 204 CLR 333; 175 ALR 217 at [102].

63.

(1800) 1 East 106; 102 ER 43.

64.

Sharrod v London and North Western Ry Co (1849) 4 Exch 580 at 585–6; 154 ER 1345 at 1347– 8.

65.

See, eg, Markesinis and Deakin, Tort Law, 6th ed, 2008, p 455.

66.

Hutchins v Maughan [1947] VLR 131; also Carter v Walker [2010] VSCA 340 at [216]ff. This view is backed by Goodhart and Winfield (1933) 49 LQR 359 at 366. See also Trindade,

‘Intentional Torts: Some Thoughts on Assault and Battery’ (1982) 2 OJLS 211 at 217. 67.

(1803) 3 East 593 at 603.

68.

(1773) 2 Wm Bl 892 at 899 per De Grey CJ.

69.

Dodwell v Burford (1669) 1 Mod Rep 24. Is it a battery if A pulls away B’s chair as B is about to sit on it, whereupon B falls to the floor? See Garratt v Dailey (1955) 279 P 2d 1091, where an affirmative answer was given, but note that directness is not a requirement in American law. Presumably for A to daub a towel with poison with the intention that B should then use it and thereby come into contact with the poison is too indirect for trespass. There may, however, be an action on the case even though trespass is not proved; 3.21ff. Cf Sadler v South Staffs Tramways Co (1889) 23 QBD 17.

70.

Hopper v Reeve (1817) 7 Taunt 698; Garratt v Dailey (1955) 279 P 2d 1091.

71.

Leame v Bray (1803) 3 East 593.

72.

(1845) 4 LT OS 493 per Parke B. (And although the man’s hand was cut this did not seem material because it was cut in reaching for the knife.)

73.

[1969] 1 QB 439; [1968] 3 All ER 442; see, too, Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 at [82] (use of a sniffer dog to bunt and ferret in suspect’s clothing may be battery).

74.

(1838) 8 Ad & El 602 at 604.

75.

Morgan v Loyacomo (1941) 1 So 2d 510. Also Fisher v Carrousel Motor Hotel (1967) 424 SW 2d 627 (Tex).

76.

(1941) 1 So 2d 510 at 511.

77.

The Queensland Full Court in Battiato v Lagana [1992] 2 Qd R 234 at 236 thus correctly held that the trial judge had been mistaken in entering a judgment that the appellant should recover nothing merely because no damage had been proved as a consequence of the battery.

78.

This would appear to include both physical and psychological harm: see Re Application for Criminal Injuries Compensation (1991) 103 FLR 297 300 (the case concerned compensation under the Criminal Injuries Compensation Act 1983 (ACT) for the harm suffered by the victim of a series of sexual attacks, but the principle is the same).

79.

Glover v London and South Western Ry Co (1867) LR 3 QB 25.

80.

Allan v New Mount Sinai Hospital (1980) 109 DLR (3d) 634 at 643 per Linden J and authorities cited therein. In this case the defendant’s anaesthetist injected anaesthetic in the patient’s arm contrary to her specific instructions. The patient experienced a severe, unexpected and extremely rare reaction. The defendant was held liable in battery for all those consequences.

81.

Loudon v Ryder [1953] 2 QB 202.

82.

Droga v Coluzzi [2000] NSWSC at [79]; McDonald v New South Wales [1999] NSWSC 350 at [42]ff; State of Victoria v McIver (2005) 11 VR 458 at [16].

83.

Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188. In A v M [1991] 3 NZLR 228 at 252, the High Court, in a case involving marital rape, held that ‘[It] would be difficult to imagine a plainer case for exemplary damages than an act of violent rape. The affront to the victim in violating her could properly be described as the utmost insult that any woman could suffer’.

84.

Gray v Motor Accident Commn (1998) 196 CLR 1; 158 ALR 485 at [40]ff; McDonald v New South Wales [1999] NSWSC 350 at [59]. As to the award of exemplary damages for joint and

several tortfeasors, see De Reus v Gray (2003) 9 VR 432. 85.

Fontin v Katapodis (1962) 108 CLR 177; [1963] ALR 582; Whitbread v Rail Corp of NSW [2011] NSWCA 130 at [33]. The limitation on compensatory damages imposed by Civil Liability Act 2002 (NSW) s 26C does not apply to a claim for exemplary damages: New South Wales v Corby (2010) 76 NSWLR 439 (CA).

86.

Cf Comyns, II, 275.

87.

As to incest constituting both assault and battery, see KM v HM; Women’s Legal Education and Action Fund (1992) 96 DLR (4th) 289.

88.

[1969] 1 QB 439 at 444; [1968] 3 All ER 442 at 445; R v Ramalingam [2011] ACTSC 86 at [173].

89.

James J went on to say that on the facts of the case at bar, the ‘assault’ alleged really involved a ‘battery’. He dealt with the case as one of battery but made frequent references throughout the judgment to the term ‘assault’; cf R v Solanki NZCA CA106/05 [6 September 2005].

90.

Gambriell v Caparelli (1975) 54 DLR (3d) 661.

91.

Read v Coker (1853) 13 CB 850.

92.

The doctrine of ‘transferred malice’ has no place in assault: Bici op cit [80].

93.

Murray v Minister of Defence [1987] NILR 219 at 233 per Gibson LJ (NICA); Kaye v Robertson [1991] FSR 62 at 70 per Bingham LJ (CA).

94.

(1830) 4 C & P 349 at 349–50.

95.

Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20 at 62; [1985] 2 All ER 1 at 24.

96.

Blake v Barnard (1840) 9 C & P 626; it seems, however, that the ratio of Lord Abinger was that since the plaintiff in his declaration averred that a ‘loaded’ gun was pointed at him, and then sought a verdict at the trial on the basis that it was unloaded, there was no evidence to go to the jury on the facts set out in the declaration.

97.

In Osborn v Veitch (1858) 1 F & F 317 it was held that to point a loaded gun at half-cock at the plaintiff was an assault but this was because there was a ‘present ability’ of doing the act threatened.

98.

R v St George (1840) 9 C & P 483.

99.

For example, McClelland v Symons [1951] VLR 157 at 163–4; Logdon v DPP (1976) Crim LR 121.

100. (1975) 12 SASR 174 at 177. 101. For example, Police v Greaves [1964] NZLR 295 at 298. 102. Crimes Act 1961 (NZ) s 2 (emphasis added). 103. [1969] 2 NSWR 451 at 455 per Taylor J. The court in MacPherson v Beath (1975) 12 SASR 174 at 177, while unwilling to endorse this view, did not rule it out. 104. A case of murder, Meade and Belts case (1823) 1 Lewin 184, where it is said obiter that ‘no words or singing are equivalent to an assault’, is the one usually relied on. 105. Williams, ‘Assault and Words’ (1957) Crim LR 219 at 224. 106. Higgins CJ in R v Gabriel [2004] ACTSC 30 at [102] places the emphasis on the context of any accompanying gesture or other circumstance.

107. And provided all the other elements of the tort are satisfied: see Slaveski v Victoria [2010] VSC 441 at [240] and cases cited therein. 108. [1955] 1 All ER 744 at 745; also Fairclough v Whipp [1951] 2 All ER 834. 109. (1823) 1 Lewin 184. 110. [1969] 2 NSWR 451. 111. Ibid at 455. In R v Ireland [1998] AC 147, ‘silent’ telephone calls made in the context of offensive and threatening cards and notes was held to constitute assault. Again the context in which the calls were made was decisive. 112. (1669) 1 Mod Rep 3. 113. Williams, ‘Assault and Words’ (1957) Crim LR 219 at 221. 114. Blake v Barnard (1840) 9 C & P 626; Police v Greaves [1964] NZLR 295. 115. Read v Coker (1853) 13 CB 850; Handford, ‘Tort Liability for Threatening or Insulting Words’ (1976) 54 Can Bar Rev 563 at 567. At 574 Handford discusses the idea that insulting threats, absent the element of violence, do not give rise to liability in assault. 116. A person who is unconscious cannot therefore be assaulted: R v Phillips (1971) 45 ALJR 467 at 472 per Barwick CJ. 117. Brady v Schatzel [1911] St R Qd 206 at 208. The requirement of apprehension has been incorporated into the Restatement, Torts (Second), s 21(1)(b). 118. MacPherson v Beath (1975) 12 SASR 174 at 177. 119. [1969] 2 NSWR 451. 120. R v Knight (1988) 35 A Crim R 314 at 318 per Lee J (NSWCCA); R v Gabriel [2004] ACTSC 30 at [108]. 121. (1988) 34 A Crim R 11 at 16 (SASC). 122. However, as indicated in Barton v Armstrong [1969] 2 NSWR 451 at 455, if the defendant threatens immediate violence through an agent, this may constitute assault. 123. Sed quaere whether subsequent knowledge of the threat may suffice, as where it is communicated to the plaintiff by a third party prior to the threatened act being carried out. 124. For example, Johnson v Commonwealth (1927) 27 SR (NSW) 133 (plaintiff’s husband assaulted in her presence and taken from home). See also discussion in Carter v Walker [2010] VSCA 340 at [253]ff. 125. [1897] 2 QB 57; 66 LJQB 493 (the fullest report). 126. The plaintiff could not sue in trespass because the damage she suffered was inflicted indirectly through speech; moreover, she could not sue in negligence because, apart from the fact that the injury had not been inflicted negligently, at that time the courts were not awarding damages for nervous shock as such: see 7.43. 127. [1919] 2 KB 316 (CA). 128. (1937) 57 CLR 1. 129. Cf dissenting opinion of Evatt J at 17–18. 130. (1937) 57 CLR 1 at 11–12. 131. [1922] NZLR 225.

132. Ibid at 228 per Herdman J. The Victorian Court of Appeal in Carter v Walker [2010] VSCA 340 at [262] regarded this as a case based on exceptional facts in another jurisdiction. 133. Goodhart, Book Review (1944) 7 MLR 86. 134. ‘[Unlike battery] in the case of the Wilkinson tort … the imputed intention is to cause harm and, ‘without harm, there is no tort’: Carter v Walker [2010] VSCA 340 at [245]; see also, Wainwright v Home Office [2004] 2 AC 406; [2003] 4 All ER 969 at [45], per Lord Hoffmann. 135. Wilkinson v Downton [1897] 2 QB 57 at 59. 136. As to what is meant by the term ‘calculated,’ see Carrier v Bonham [2002] 1 Qd R 474 at [25]; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 at [77]–[80]. 137. [1919] 2 KB 316 at 326 (CA). 138. (1937) 57 CLR 1 at 12 per Latham CJ. The judge, however, also made the point that, in order to establish liability, it is not necessary that the defendant should have intended injury to the plaintiff as such, but only that he should have intended to injure someone. 139. See per Lush J in Shapiro v La Morta (1923) 130 LT 622 at 625; also Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 422 per Gallen J. 140. Deane v Clayton (1817) 7 Taunt 489 (court equally divided whether it was actionable on the case to set iron spikes for dogs); Bird v Holbrook (1828) 4 Bing 628 (setter of spring gun liable in case to pursuer of stray fowl); cf Townsend v Wathen (1808) 9 East 277. 141. For example, in Bird v Holbrook (1828) 4 Bing 628 Best CJ preferred to adopt the view that the action was maintainable ‘on the principle that it is inhuman to catch a man by means which may maim him or endanger his life’. 142. For example, Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 421 per Gallen J. 143. [1993] QB 727; 3 All ER 669 (CA). 144. Ibid at 736; 677 per Dillon LJ. 145. Ibid. 146. See Bridgeman and Jones, ‘Harassing Conduct and Outrageous Acts: A Cause of Action for Intentionally Inflicted Mental Distress?’ (1994) 14 Legal Studies 180 at 196. And see Berns, ‘The Hobart City Council Case: A Tort of Sexual Harassment for Tasmania?’ (1994) 13 U Tas L Rev 412 at 415, who regards the Khorasandjian decision, among others, as a sign of the courts’ increasing flexibility and willingness to recognise women’s interests in dignity, autonomy and bodily security. 147. [1997] AC 655; 2 All ER 426. 148. [2004] 2 AC 406; [2003] 4 All ER 969 at [44]–[47] per Lord Hoffmann. 149. Ibid at [40]. See commentary by Handford, ‘Tort Liability for Threatening and Insulting Words’ (1976) 54 Can Bar Rev 563 at 571ff. 150. (2006) 226 CLR 551; 231 ALR 277 at [20] and [117] per Gleeson CJ. 151. See, eg, Habib v Commonwealth (No 2) (2009) 175 FCR 350; 254 ALR 250 at [26], per Perram J, following Giller v Procopets (2008) 24 VR 1 at [164]–[166] per Ashley JA, at [471]–[477] per Neave JA; cf the dissenting opinion of Maxwell P who noted the ‘unsustainable assumption that a clear line separates “psychiatric illness” from other (lesser) types of distress’: at [31]. 152. As predicted by Magnusson, ‘Recovery for Mental Distress in Tort, with Special Reference to Harmful Words and Statements’ (1994) 2 TLJ 126 at 160.

153. See, eg, Fletcher v Western National Life Insurance Co 89 Cal Rptr 78 (1970) at 91; Hamilton v Ford Motor Credit Co 502 A 2d 1057 (1986) at 1063–4; Doe v Doe 712 A 2d 132 (1998); Nagy v Nagy 258 Cal Rptr 787 (1989). 154. See also Barbara McDonald, ‘Tort’s Role in Protecting Privacy’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, Ch 4. 155. [1986] 2 NZLR 716 at 731–3 per McGechan J. 156. Ibid at 731. 157. Commonwealth v Fernando (2012) 200 FCR 1; 287 ALR 267 at [89]–[90]. See, too, Plenty v Dillon (1991) 171 CLR 635 at 654 (HC), Coco v R (1994) 179 CLR 427 at 436 (HC). 158. Once the plaintiff establishes the fact of imprisonment, the onus falls on the defendant to prove that the detention was lawful: Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 512 per Kirby P, approving Carnegie v Victoria (SC(Vic), 14 Sept 1989, Crockett J, unreported, at 19); Slaveski v Victoria [2010] VSC 441 at [251]. 159. MacCulloch v TNT Ltd [2000] NSWSC 1183 at [39]; R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19; [2000] 4 All ER 15 (HL). 160. R v Deputy Governor of Parkhurst Prison [1992] 1 AC 58 at 123; [1991] 3 All ER 687 at 707 per Taylor LJ: ‘bad faith has never been a necessary ingredient in the tort of false imprisonment’; Ruddock v Taylor (2003) 58 NSWLR 269 at 272. 161. For example, Williams and Hepple, Foundations of the Law of Tort, 2nd ed, 1984, p 58; Harding and Tan Keng Feng, ‘Negligent False Imprisonment — A Problem in the Law of Trespass’ (1980) Malaya LR 22 at 29. 162. For example, Markesinis and Deakin, Tort Law, 6th ed, 2008, p 466. 163. Williams v Milotin (1957) 97 CLR 465; McHale v Watson (1964) 111 CLR 384; Venning v Chin (1974) 10 SASR 299; see generally 2.6–2.12. 164. See Heffey, ‘Negligent Infliction of Imprisonment: Actionable “per se” or “cum damno”?’ (1983) 14 MULR 53 at 59. 165. Partial restraints may be the subject of an action on the case, on proof of damage: Wright v Wilson (1699) 1 Ld Raym 739; Bird v Jones (1845) 7 QB 742 at 752 per Patteson J. 166. Goldie v Commonwealth [2004] FCA 156 at [17]. 167. Per Lord Steyn in R v Bournewood Community and Mental Health NHS Trust [1999] 1 AC 458 at 495; [1998] 3 All ER 289 at 306 who noted that whether justification exists is a question of law, to be decided separately. 168. In Bird v Jones, (1845) 7 QB 742, preventing a person from crossing a bridge except by making a detour around a part of the area of the bridge which had been closed off was not false imprisonment. The court was at pains to point out that other actions in tort lie including an action for assault or one on the case for obstructing passage. 169. Wright v Wilson (1699) 1 Ld Raym 739. The court thought that a special action on the case would lie. 170. [2006] 2 AC 148; [2004] 4 All ER 736, per Lord Steyn at [42], expressing support for the decision of the Canadian Supreme Court in Miller v The Queen (1985) 24 DLR (4th) 9. Obiter support for Miller’s case and for the consequent availability of the writ of habeas corpus was also expressed in Prisoners A-XX Inclusive v NSW (1995) 38 NSWLR 622 at 632.

171. [1992] 1 AC 58 at 177; [1991] 3 All ER 733. 172. Ibid at 177; 756 per Lord Jauncey; at 165; 745–6 per Lord Bridge. Similarly, Prisoners A-XX Inclusive v New South Wales (1995) 38 NSWLR 622. 173. Middleweek v Chief Constable of the Merseyside Police [1990] 3 All ER 622 at 667–8 per Ackner LJ. See, too, discussion in R (Munjaz) v Mersey Care NHS Trust [2004] QB 395 at [68]– [69]. This case also discusses the differences between prisoners and compulsory mental patients. 174. Blackstone, Commentaries, Vol 3, 17th ed, 1830, p 127. In Hayward v O’Keefe [1993] 1 NZLR 181 at 190 Thomas J held that the act of a constable in escorting H, handcuffed, to a flea market was imprisonment. 175. Warner v Riddiford (1858) 4 CB (NS) 180. 176. Myer Stores Ltd v Soo [1991] 2 VR 597. 177. Cobbett v Grey (1850) 4 Exch 729. 178. Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 (HL). 179. Burton v Davies [1953] St R Qd 26; Zanker v Vartzokas (1988) 34 A Crim R 11 (SA SC), driving a car at such a speed as to prevent a passenger from alighting is false imprisonment. The issue is not whether the car was entered voluntarily but whether the passenger was compelled to remain in it: The Queen v Linh Quoc Huynh [2006] VSCA 213 at [84]–[85]. 180. (1986) 87 FLR 277 (ACT SC). The court was unmoved by the argument that for a time after their return to Australia, financial restraints would have prevented the plaintiffs from leaving the country. 181. But in Kuchenmeister v Home Office [1958] 1 QB 496; 1 All ER 485, it was held false imprisonment for immigration officers to prevent an alien from proceeding from an airport to an aircraft and from embarking on it, even though the Aliens Order 1953 (UK) authorised them to prescribe limits within which he must remain. 182. (1845) 7 QB 742 at 744; the physical restraints imposed by foster parents as part of their day-today care and protection of a child is not a restraint for the purposes of false imprisonment: South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [307] per Doyle CJ, Duggan and White JJ. 183. If A removes B’s bathing costume in a swimming pool and B is unable to leave the pool until C lends B another costume, is B falsely imprisoned? If, while B is skinny dipping in the swimming pool, A removes the clothing which B had left by the side of the pool, and B is reluctant to leave the pool in a naked state, is B falsely imprisoned? 184. [1953] St R Qd 26 at 30. Similarly, in R v Macquarie (1875) 13 SCR (NSW) 264, Hargraves J held that where a person was set afloat alone in a vessel that he did not know how to control, and his sole way of escape was by jumping into the water, he would be imprisoned because the means of escape was not a reasonable one. But cf Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, where Griffiths CJ thought that R was not falsely imprisoned because he could leave by water, even though this might have meant swimming. 185. Now supported by the facts in Attorney-General v Niania [1994] 3 NZLR 106. 186. The view taken by the court in R v Macquarie (1875) 13 SCR (NSW) 264 at 273 that ‘to constitute an imprisonment there must be an actual detention of the person in some place’ must be read subject to this limitation. See Lippl v Haines (1989) 18 NSWLR 620 at 638 per Hope AJA and cases cited therein.

187. Attorney-General v Niania [1994] 3 NZLR 106 at 108 per Tipping J; Roman v Commonwealth [2004] NTSC 9 at [10]. 188. Harnett v Bond [1925] AC 669 (HL). 189. (1971) 124 CLR 621; aff’d on this point: Marshall v Watson (1972) 124 CLR 640. Further authority on this point in Myer Stores Ltd v Soo [1991] 2 VR 597 at 601 per Murphy J, at 614 per O’Bryan J, at 627 per McDonald J. 190. Can you imprison by telephone? Is a threat of force to a member of one’s family sufficient? 191. Warner v Riddiford (1858) 4 CB (NS) 180, especially at 204 per Willes J; Chinn v Morris (1826) 2 C & P 361; Grainger v Hill (1838) 4 Bing NC 212; Wood v Lane (1834) 6 C & P 774. 192. [1922] SASR 447 at 453 per Murray CJ. Voluntarily accompanying a police officer to a police station to help with inquiries, without more, is not false imprisonment: Wayne v Broekhuyse [1997] ACTSC 51. 193. Conn v David Spencer Ltd [1930] 1 DLR 805; in Chaytor v London, New York and Paris Association of Fashion Ltd (1961) 30 DLR (2d) 527 at 536 Dunfield J called this a psychological type of imprisonment. 194. Where the imprisonment is for a very short time damages would be minimal especially if no force is used: Re Watters and Town of Glace Bay (1987) 34 DLR (4th) 747. 195. For example, Stork v Germany (2005) 43 EHRR 96 at [74]. 196. Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust [2012] 2 WLR 1071 at [51ff] per Pitchford LJ and Supperstone J. 197. A claim that the Director of Native Affairs had wrongfully removed and detained part-Aboriginal children failed on the ground that he had not actively promoted or caused the imprisonments: Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; 174 ALR 97 at [1162]–[1168]. As to whether a prison officers’ strike resulting in prisoners being confined to the cells is a ‘mere omission’, see Prison Officers Assoc v Iqbal [2010] QB 732; 2 All ER 663 at [15]–[23] per Lord Neuberger MR, at [59]–[69] per Smith LJ (CA). 198. [1913] 3 KB 771 (CA), aff’d [1915] AC 67 (HL). 199. And if B’s refusal caused A to die of starvation or aggravated the injury A received in the fall? Lord Moulton in Herd’s case [1915] AC 67 at 76 (HL) indicated that there would be false imprisonment if the release was a reasonable and pressing necessity but it is not clear why this additional factor should change the nature of the defendant’s inactivity. 200. Buckley and Hamilton LJJ [1913] 3 KB 771 (CA). But what if the defendant in Herd’s case had refused to carry him to the surface at the end of his shift? Surely such an omission would have amounted to false imprisonment?. 201. [1910] AC 295 (PC), reported in the High Court as Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. 202. This means of exit also meant that the imprisonment might not have been total sed quaere in the light of fn 184 above and text thereto. 203. (1906) 4 CLR 379 at 391 per O’Connor J; [1910] AC 295 at 299 per Lord Loreburn LC. For a scholarly review of the context and background to the case, see Lunney, ‘False Imprisonment, Fare Dodging and Federation — Mr Robertson’s Evening Out (2009) 31 Syd L Rev 537. 204. See Glanville Williams, ‘Two Cases on False Imprisonment’ in Holland and Schwartzenberger (eds), Law, Justice and Equity, 1967, pp 47–55.

205. See Keng Feng Tan, ‘A Misconceived Issue in the Tort of False Imprisonment’ (1981) 44 MLR 166 at 168. 206. Support for this view is to be found in the Canadian decision of Bahner v Marwest Hotel Co Ltd (1970) 6 DLR (3d) 322. 207. (1988) 13 NSWLR 714. Similarly, Murphy v Corrective Services Commission of New South Wales (SC(NSW), 8 December 1983, unreported); Mee v Cruickshank (1902) 86 LT 708. 208. (1834) 1 Cr M & R 377. 209. (1919) 122 LT 44. 210. Ibid at 51. 211. His illustration, that the arrestors may inform others of his detention, seems to postulate that this tort protects reputation, sed quaere. Prosser, ‘False Imprisonment: Consciousness of Confinement’ (1955) 55 Columbia LR 847 at 849, contends that Atkin LJ’s rule is necessary in order to protect the plaintiff in such situations as these: A locks B, a two-year-old child, in a vault; two days elapse before the vault is opened, and B’s health is impaired. But would not such cases fall within the tort discussed in 3.21ff ? 212. (1919) 122 LT 44 at 53–4. 213. [1988] 1 WLR 692 at 701–3 per Lord Griffiths (HL). 214. Overriding the decision of the Northern Ireland Court of Appeal on this point. 215. [1991] 2 VR 597 at 615 per O’Bryan J (App Div). See also Weldon v Home Office [1990] 3 All ER 672 at 677 (CA); R v Bournewood Community and Mental Health NHS Trust; Ex parte L [1999] 1 AC 458; [1998] 3 All ER 289 (HL) per Lord Steyn at 495 and 306 respectively. 216. (2007) 20 VR 250. Similarly, Go v R (1990) 73 NTR 1 at [20] per Asche J. The Full Court in South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [295], [297] extended this to persons who, due to lack of mental or physical capacity, are unable to resist the restraint; but this is not the same issue. 217. Nor are prison officers who withdraw their labour, leading to the governor’s decision to confine prisoners to their cells, liable in false imprisonment: Prison Officers Assoc v Iqbal [2010] QB 732; 2 All ER 663 at [27] per Lord Neuberger MR, at [79] per Smith LJ; but an action on the case lay against a medical practitioner, who negligently certified that the plaintiff was insane, whereupon she was detained in a mental hospital: De Freville v Dill (1927) 96 LJKB 1056. 218. It may be the tort of intentionally causing physical harm: 3.21. 219. See discussion in 25.1ff. 220. Austin v Dowling (1870) LR 5 CP 534 at 540 per Willes J. 221. Aitken v Bedwell (1827) Mood & M 68. In Ansell v Thomas [1974] Crim LR 31, the managing director left the factory early only because two police officers summoned by his co-directors threatened to eject him forcibly if he did not leave; the co-directors were held liable in trespass. A person may be liable in false imprisonment either by personally effecting the arrest or, in line with the general principle that whoever instigates another to commit a tort is a joint tortfeasor by actively promoting the arrest by another; but quare whether TTM v London Borough of Hackney [2011] 1 WLR 2873 was correctly decided in holding the Borough (as opposed to the Hospital Trust) liable for the plaintiff’s confinement in hospital. 222. See Pike v Waldrum & P and O Navigation Co [1952] 1 Lloyd’s Rep 431 on the liability of naval authorities and the ship’s captain for the arrest of a crew member.

223. Sewell v National Telephone Co Ltd [1907] 1 KB 557 (CA). Collins MR said that the signing of the charge sheet merely provides a prosecutor, and ‘that does not let in liability to an action for false imprisonment, unless the person who takes that step has taken on himself the responsibility of directing the imprisonment. It is quite consistent with the signing of a charge sheet that the person who does this is in the position of one evoking judicial intervention’. 224. Clubb v Wimpey and Co Ltd [1936] 1 All ER 69; new trial ordered by the Court of Appeal [1936] 3 All ER 148, who neither approved nor expressly disapproved the decision of the court below on this point. 225. Grinham v Willey (1859) 4 H & N 496. 226. Hopkins v Crowe (1836) 4 Ad & El 774; Austin v Dowling (1870) LR 5 CP 534; Dickenson v Waters Ltd (1931) 31 SR (NSW) 593. 227. Gosden v Elphick (1849) 4 Exch 445. 228. Davidson v Chief Constable of North Wales [1994] 2 All ER 597 (CA); see Myer Stores Ltd v Soo [1991] 2 VR 597 at 615–17 per O’Bryan J, at 629–30 per McDonald J for further discussion of these issues. 229. (2005) 222 CLR 612; 221 ALR 32 at [153]. 230. (1931) 31 SR (NSW) 593. 231. (1970) 6 DLR (3d) 322. 232. Lock v Ashton (1848) 12 QB 871. As to whether delay on the part of the Parole Board to determine a prisoner’s review of his recall is false imprisonment, see Dunn v The Parole Board [2009] 1 WLR 728 (CA). 233. See 25.2. The interaction between false imprisonment and malicious prosecution is clearly explained in Austin v Dowling (1870) LR 5 CP 534. 234. Brown v Chapman (1848) 6 CB 365. 235. West v Smallwood (1838) 3 M & W 418. 236. See Heffey, ‘Negligent Infliction of Imprisonment: Actionable “per se” or “cum damno”?’ (1983) 14 MULR 53 at 63. 237. (1971) 124 CLR 621 at 632; similarly, Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196, although the court noted (at [26]) that the shorter the period of unlawful imprisonment, the lesser the sum of compensatory damages. 238. If a person is unaware of having been falsely imprisoned and has suffered no harm, that person can normally expect to recover no more than nominal damages: Murray v Ministry of Defence [1988] 1 WLR 692 at 703 (HL); Roberts v Chief Constable of the Cheshire Constabulary [1999] 2 All ER 326 at 333 per Clarke LJ (CA). 239. Watson’s case (1971) 124 CLR 621. Also, Hook v Cunard SS Co Ltd [1953] 1 All ER 1021; Bhattacharya v NSW [2003] NSWSC 261. 240. McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 at 62,687 per Clarke JA (NSWCA); Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports 81-541 at [89] (NSW SC). 241. As to the relationship between general and aggravated damages, see Spautz v Butterworth (1996) 41 NSWLR 1 at 13 per Clarke JA (CA). As to the possibility of vindicatory damages, see Lumba v Home Office [2012] 1 AC 245; [2011] 4 All ER 1 at [97]-[101] per Lord Dyson SCJ, at [213]–

[218] per Lady Hale SCJ, at [222]–[237] per Lord Collins SCJ, at [254]-[256] per Lord Kerr SCJ. 242. Childs v Lewis (1924) 40 TLR 870; Walter v Alltools Ltd (1944) 171 LT 371 (CA). As to whether failure to apologise and persevering in the charge are grounds for aggravated damages, see Myer Stores Ltd v Soo [1991] 2 VR 597 at 603–4 per Murphy J; McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 at 62,690 per Powell JA (CA). But cf Attorney-General v Niania [1994] 3 NZLR 106 at 111–12 per Tipping J. As to the appropriateness of awarding aggravated damages to a person with a tarnished reputation, see Lackersteen v Jones (1988) 92 FLR 6 at 41 per Asche CJ (NTSC). 243. Downham v Bellette (1986) Aust Torts Reports 80-038 (plaintiff defecated on defendant’s driveway). 244. Exemplary damages in general are discussed in 27.10. The award of exemplary damages need not be for a specific sum separate from the other general damages: AG of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 637; [1979] 3 All ER 129 (PC). An award of exemplary damages should not be made automatically against a police officer (O’Connor v Hewitson (1979) Crim LR 46), but may be awarded if the police officers have been found guilty of misbehaviour (Bahner v Marwest Hotel Co Ltd (1970) 6 DLR (3d) 322) or if their behaviour showed a contumelious disregard for the plaintiff’s rights: Nye v New South Wales [2003] NSWSC 1212 at [299]. Malicious conduct may justify, but is not an essential element of, the award: New South Wales v Riley (2003) 57 NSWLR 496 at [138]. An erroneous belief in a power of arrest will not excuse the ‘unconstitutional’ conduct justifying the award of exemplary damages: Holden v Chief Constable of Lancashire [1987] QB 380; [1986] 3 All ER 836. 245. The various statutes are referred to in 12.12ff.

[page 60]

CHAPTER 4 Goods

Introduction 4.1 The law might be expected to protect persons whose title to, or possession of, goods is interfered with, or whose goods are damaged by intentional conduct. Broadly speaking, the common law does this but not in any systematic way. As Sir John Salmond said:1 … we are still called upon to observe distinctions and subtleties that have no substance or justification in them, but are nothing more than an evil inheritance from the days when forms of action and of pleading held the legal system in their clutches. In no branch of the law is this more obvious than in that which relates to the different classes of wrongs which may be committed with respect to goods. In particular the law of trover and conversion is a region still darkened with the mists of legal formalism, through which no man will find his way by the light of nature or with any other guide save the old learning of writs and forms of action and the mysteries of pleading.

The oldest writ was that of detinue, which lay for the unlawful detention of goods.2 Detinue was distinctive in that it alone enabled the plaintiff to recover the goods themselves; all the other remedies were confined to an award of damages. For an interference with goods in the possession of the plaintiff, including an injury to goods which did not involve their removal, the writ of trespass de bonis asportatis was available. The action for trover (later called conversion) developed upon a fiction. The original form of the pleadings alleged that the defendant had found the plaintiff’s chattels (hence the name ‘trover’) and had wrongfully converted them to his or her own use. The allegation of finding (trover) could not be

traversed and the essence of the tort became the wrongful conversion of the goods to the use of the defendant. Once refusal to deliver up the goods was treated as evidence of conversion,3 conversion and detinue became largely concurrent torts. As seizing goods and carrying them away is clearly a wrongful conversion of goods, conversion is often available concurrently with trespass. But merely moving or damaging goods without converting them to the defendant’s own use remains actionable in trespass alone.4 [page 61] In other circumstances, too, interests in goods demand protection, since, especially, the true owner who is not immediately entitled to possession may be affected by wrongful acts to these goods. For this residuary class resort can still be had to an action analogous to the former action on the case. Case (a special action not being trover) lay for interference with an interest not amounting to possession of or immediate title to goods. A summary remedy known as replevin also became available in some circumstances; it was designed to restore possession pending determination of the real issues in dispute. And, of course, where goods are lost or damaged as a result of the defendant’s breach of a duty of care, an action may lie in negligence.

4.2 Dissatisfaction with the complexity of these rules and overlapping remedies led the English Law Reform Committee in 1971 to make proposals for reform.5 What the Committee hoped to do was at least to simplify the tortious remedies available to plaintiffs. A statutory tort of a wrongful interference with chattels was recommended which would lie whenever goods were intentionally interfered with without lawful justification. Negligent interference would remain actionable if at all only under the existing law of negligence. In 1977 the Torts (Interference with Goods) Act6 was introduced by the Parliament at Westminster, which gave only limited effect to the recommendations of the Law Reform Committee. The major change initiated by it was the abolition of the tort of detinue.7 No similar legislation has been proposed for Australia or New Zealand, where intentional interferences with goods continue to be regulated almost entirely by the common law. Detinue remains a freely available remedy. This chapter will consequently examine

separately the torts of conversion, trespass and detinue.

Conversion 4.3 Conversion may be defined as an intentional dealing with goods which is seriously inconsistent with the possession or right to immediate possession of another person. This tort does not involve any element of dishonesty on the defendant’s part; nor is it a requirement that the defendant intended to deny the plaintiff’s rights.8 The tort protects the plaintiff’s interest in the dominion and control of goods; it does not protect the plaintiff’s interest in their physical condition. It follows, therefore, that the tort is greatly concerned with problems of title to personal [page 62] property. Indeed, many cases on conversion are in essence disputes on title which often involve complex rules of commercial law.9

Interest of the plaintiff 4.4 To maintain an action in conversion, the plaintiff must have either possession10 or the right to immediate possession at the time of the conversion.11 English and Australian law in this respect favour possession at the expense of ownership.12 Thus, in City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd13 the owner was liable for dispossessing the bailee during the subsistence of the bailment, which was not one terminable at will.14 A person may acquire possession or the right to immediate possession in a variety of ways, each of which is considered in the following pages.

Bailment 4.5 A bailee of goods can sue third parties in conversion. The reason for

this, as explained in The Winkfield15 is that, as against a wrongdoer, possession is title and even the chattel that has been converted is deemed to be the chattel of the possessor and of no other; therefore, its loss or deterioration is the bailee’s loss which must be recouped on his or her demand. Such possessory title vests even in a thief, receiver or other wrongdoer, save as against anyone setting up or claiming under a better title.16 While damages awarded to the bailee would be relevant in any subsequent accounting between the bailee and bailor, this is not inconsistent with the bailee’s right to sue in conversion.17 Where the bailment is at will the bailor may also sue on the basis of an immediate right to possession.18 If the bailment is for a term only the bailee may sue during the currency of that term. In Wertheim v Cheel19 a sewing [page 63] machine which the plaintiff had hired to a dressmaker was seized by the defendant and sold by him in respect of rent owing to him by the dressmaker’s husband. The plaintiff was non-suited on the grounds that, as between the plaintiff and defendant, the action was wrongly brought, the plaintiff being neither in possession nor entitled to immediate possession of the goods.20

4.6 A bailment which originally gave the bailor no immediate right to possess may become a bailment at will. Manders v Williams21 is illustrative: the plaintiff brewer supplied porter in casks to a publican on condition that he was to return empty casks within six months; it was held that the plaintiff could sue a sheriff who seized (within six months of their being supplied) some empty casks in execution for a debt of the publican, because, once the casks were empty, the effect of the contract was to make the publican a bailee at will, whereupon the plaintiff was entitled to immediate possession. Similarly, if a bailee does a wrongful act which may be deemed to terminate the bailment the bailor may sue. The remedy would lie not only against the bailee but against anyone else who deals with the goods.22 For instance, destruction23 or sale24 of the goods by the bailee will ordinarily terminate the bailment as will dealing with them in a manner wholly inconsistent with the terms of the bailment.25 Dixon J, in Penfolds Wines Pty Ltd v Elliott,26

stressed that, while actions wholly repugnant to the bailment do not notionally revest actual possession in the bailor sufficient to support an action for trespass or for conversion on that basis of title, they do revest the right to immediate possession sufficient to support an action for conversion on this alternative basis of title.

4.7 Some contracts contain special stipulations regarding the revesting of the right to possession in the bailor in the event of a breach by the bailee of one of the terms of the contract. Hire-purchase contracts (largely abolished by the consumer credit legislation in all Australian jurisdictions) are a case in point. These normally prohibit the hirer from selling or otherwise disposing of the goods,27 and empower the owner to terminate the contract, say, by the giving of notice if the prohibition is disregarded. The question arises whether these and other similar contractual stipulations displace the common law rules concerning acts repugnant to the bailment and so prevent the resumption of the right to immediate possession pending the giving of notice or other stipulated act on the part of the bailor. The answer to this question seemingly is to be found by examining the contract itself and asking whether it should be construed to have that effect or whether it merely intended to provide the bailor with [page 64] an alternative basis of claiming the existence of an immediate right to possession once the notice is given or other act completed.28 English courts have tended towards the view that while it is, in principle, possible to introduce into the contract a term expressly limiting the manner in which the bailee’s right to possession as against the bailor can be terminated, nevertheless, only the clearest of express terms can have this effect:29 A clause which merely gives a right to terminate by notice for any breach of the contract of bailment could not possibly … be construed as having that effect. Its purpose is to enhance the rights of the bailor and not to curtail them … it cannot be construed as restricting his right to terminate the bailment without notice on the happening of a breach which is a repudiation.30

A not dissimilar approach was adopted in Milk Bottles Recovery Ltd v Camillo31 where the Victorian Supreme Court was called upon to interpret a clause in a contract that permitted dairies which had hired milk bottles from

the plaintiff company to lend the bottles to customers but not to sell or otherwise dispose of them. The contract empowered the company in the event of a breach upon notice to cease doing business with the dairy. The court held that, although it saw no reason why the parties to a bailment might not, if they chose, completely regulate all their rights and liabilities by agreement, the clause in question did not go that far. It was enabling in form and was expressed to be ‘in addition to … other legal rights and remedies’. The court distinguished between the plaintiff’s rights under the bailment and its rights under the contract and noted:32 … it may well be that in order to assert rights given to it solely by the contract the plaintiff must show that it has accepted the dairyman’s repudiation, but (contractual terms notwithstanding) … the effect of the repudiation of the bailment revests in the bailor at once the right of possession.

These decisions must be contrasted with that of Nominal Defendant v Andrews33 where the High Court preferred to decide the question of the right to possession of a car subject to a contract of hire-purchase by reference solely to the terms of the contract rather than by an application of the common law rule of acts repugnant to the bailment.34 The contract contained a clause permitting the owner to terminate the hiring and retake possession, without notice, in the event of a breach. Barwick CJ held35 that, even if the hirer had been in breach, an automatic change in the right to [page 65] possession of the car in a proprietary sense by no means followed. Until the owner acted to terminate the contract the right to possession in the hirer continued.

4.8 Attention should also be drawn to the possibility that the common law rules of bailment might be affected by statute. In Citicorp Australia Ltd v BS Stillwell Ford Pty Ltd36 it was argued that the provisions of the Consumer Transactions Act 1972 (SA) prevented the revesting of the right to immediate possession in the bailor because s 27 provided that ‘a mortgagee shall not exercise any right or power to take possession of the goods comprised in a consumer mortgage unless he has served on the consumer a notice in writing … and the period fixed by the notice (being a period of not less than seven days from the service of the notice) has expired’. The court held that s 27 did

not abrogate the basic rule of the law of bailment but should be read as requiring the giving of notice only to a mortgagor who has not by some act or disposition wholly repugnant to the bailment disclaimed any intention of holding as bailee. Although parliament desired to give defaulting mortgagors time to remedy their default before losing possession of the goods, it did not desire to deprive mortgagees of their title to sue for conversion of the goods, or, indeed, of their right to retake possession without delay, where the mortgagor had fraudulently disposed of the goods.

Lien and pledge 4.9 The holder of a lien,37 too, may sue in conversion,38 and this right to sue extends even against the owner of the goods for a conversion of the goods.39 However, the holder of a lien who parts with possession of the goods thereby loses the lien, and that act (if wrongful) is a conversion which entitles suit by the owner. So in Mulliner v Florence40 it was held that ‘the very notion of a lien is, that if the person who is entitled to the lien, for his own benefit parts with the chattel over which he claims to exercise it, he is guilty of a tortious act’. In Bolwell Fibreglass Pty Ltd v Foley41 the owner of a yacht sued the artificer in conversion, after the latter refused to hand over the yacht to the owner. Brooking J held that unless some additional right or power is conferred by statute, an artificer’s lien does no more than entitle the artificer to refuse to deliver up an article until paid for the work done on it. The obligation to deliver the chattel to the bailor will ordinarily not arise until the artificer has completed the work which by the terms of the agreement he or she is both obliged and entitled to perform. Similarly, it is the completion of the work which gives rise to the indebtedness that must be paid if the lien is to be extinguished. This means that, until the work is completed, the artificer’s rights to possession are regulated by the contract; once the work is completed, the artificer’s rights to possession are dependent upon his or her rights as lien holder. [page 66] A pledge, by comparison, confers something more than the personal right

of retention given by a lien — for there is, in addition, a power to sell in default of payment on the agreed date. So, in Donald v Suckling42 it was held that a repledge by the pledgee did not end the pledge and the original pledgor could not sue the second pledgee without tendering the sum owing. Similarly, the assignee of a pledgor cannot sue the pledgee who sells the goods because, until the sum owing is tendered, there is no immediate right to possession.43

Sale 4.10 It is often difficult to discover which of the parties to a contract for the sale of goods has an interest sufficient to support an action in conversion. The crucial question is whether at the date of the alleged conversion the buyer has a sufficient right to immediate possession of the goods.44 In Bloxam v Sanders45 it was held that, where goods were sold on credit, the seller who thereafter wrongfully sold them to a third party could ordinarily be sued by the buyer in conversion, but that if the seller exercised a right of stoppage in transit upon the buyer’s becoming insolvent, the buyer could no longer sue. In the absence of credit terms, the court further declared that, despite having the property in the goods, the buyer has no right to immediate possession until tendering or paying the price. This latter statement, which was obiter, stands in contradistinction to the decision in Chinery v Viall,46 another case in which the seller of goods on credit terms had resold them prior to delivery to a third party. Stating that their decision did not turn on the fact that the original contract was a sale on credit, the court held that, where there has been no default by the buyer, that party may sue the seller for conversion. It is thought that Bloxam v Sanders is to be preferred, and that a buyer to whom property has passed, but who has not been given credit terms, has no immediate right to possess until tendering the price. Both these cases involved situations where a sale but no delivery had taken place at the time of the alleged conversion. Different questions arise where delivery has occurred, so that the purchaser has actual possession of the goods at the time of the alleged conversion, but where the purchase price is still outstanding. In Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd47 the court resolved the matter by reference to the actual terms of the contract. This provided that property in the goods sold on 60 days’ credit would pass to the purchaser upon delivery. The seller was held liable in conversion when it

seized the goods prior to the expiry of the 60-day period. It would seem, moreover, that in the absence of any terms to the contrary in the [page 67] original contract, the seller would not automatically resume the right to immediate possession even where the credit period has expired. In Jarvis vWilliams48 the plaintiff had sold and delivered goods to one Patterson, but later agreed with Patterson that the goods, which had not yet been paid for, should be returned. The goods at that time were in the possession of the defendant (to whom Patterson owed money) and he refused to deliver the goods to the plaintiff. The English Court of Appeal held that no action would lie in conversion (or detinue); property in the goods had passed to Patterson under the original contract of sale and the effect of the subsequent agreement between the parties was not to revest title in the seller but merely to create a personal right not sufficient to support an action in conversion.

Licensee 4.11 Sometimes a licensee may be able to sue in conversion.49 In Northam v Bowden50 the plaintiff had a licence to prospect certain land for tin, and the defendant, without permission, carted away some of the soil from this land. It was held that ‘if the plaintiff had a right to the gravel and soil for the purpose of getting any mineral that could be found in it, he had such a possession of the whole as entitled him to maintain an action for its conversion against a wrongdoer’. Apart from such cases of profits à prendre, licensees of goods are bailees and call for no separate treatment.

Finder 4.12 In the classic case of Armory v Delamirie,51 a chimney sweeper’s boy found a jewel and handed it to an apprentice of a goldsmith to be valued. The latter removed the jewel from its setting and handed back the setting to the boy, offering him one and a half pence for the jewel. The boy refused this offer but the goldsmith declined to return the jewel to him. The court, in

finding for the boy against the goldsmith in trover, in effect upheld the right of a finder of a chattel against later possessors unsupported by an earlier title. Although neither was the ‘true owner’ of the jewel, relative to the goldsmith the boy had a stronger possessory title which he could protect by the action in trover. Citing Armory v Delamirie as the locus classicus, the English Court of Appeal in Parker v British Airways Board52 formulated the following rules regarding finding: The finder of a chattel acquires no right over it unless it has been abandoned or lost and he takes it into his care and control. He acquires a right to keep it against all but the true owner53 or one who could assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control.

[page 68] The judgment has been criticised54 for ignoring the fact that title is relative in the sense that, when a dispute arises, only the priorities of the parties are adjudicated while the positions of other potential claimants remain in the background. Any claim to title is based on a continuing right to possession which has not been superseded as a result of abandonment, gift or sale. Accordingly, the finder would have good title against a subsequent claimant irrespective of whether or not he or she could prove that it had been abandoned or lost by a previous possessor, not party to the action and irrespective of whether or not the goods had been acquired with dishonest intent or in the course of trespassing. An occupier of land or a building has rights superior to those of the finder over goods in or attached to that land or building. Thus, rings in the mud at the bottom of a pool,55 and a prehistoric boat embedded in the soil two metres below the surface56 belong to the landowner. Similar rules apply to goods found in ships, vehicles and aircraft. An occupier of premises has rights superior to those of the finder over goods upon or in, but not attached to, the premises only if, before the finding, the occupier has manifested an intention to exercise control over the building and the things which may be upon it or in it.

4.13 This rule is difficult to apply, as the cases show. In Parker v British

Airways Board57 the plaintiff was in the defendants’ first class lounge at Heathrow Airport awaiting his flight. He found a gold bracelet on the floor and handed it to the defendants’ employee with his name and address, together with a request that it be returned to him if unclaimed. Nobody claimed it but the defendants failed to return it and instead sold it, keeping the proceeds to themselves. The English Court of Appeal held that the proceeds belonged to the plaintiff because the defendants had shown no intention beforehand to exercise such control over the lounge as to displace the plaintiff’s rights as a finder. In Bridges v Hawkesworth58 the finder of a packet of bank notes lying on the floor in the public part of a shop was held to be entitled to them as against the owner of the shop. A soldier billeted in a house who found a brooch loose in a crevice on top of a window frame there was held entitled as against the non-occupying owner to the brooch.59 But on the other hand, owners of premises were entitled, as against demolition workers, to bank notes found by the latter in a box in a wall safe of an old cellar.60 Any servant or agent who finds goods in the course of his or her employment does so on behalf of his or her employer who acquires a finder’s rights.61 However, a finder will acquire a sufficient interest in the goods to found an action in conversion if the employment, while providing the occasion for the finding, is not regarded as its effective cause.62 [page 69] Anyone with finder’s rights has an obligation to take reasonable steps to trace the true owner; similarly, an occupier with a superior claim to a finder is also obliged to take such reasonable steps to trace the true owner.

Jus tertii (third party rights) 4.14 Under the common law a plaintiff often succeeded in conversion even though the defendant could show that a third party had a better title to the goods than the plaintiff. As it was said, the defendant could not plead jus tertii.

This common law rule was abolished in England by the Torts (Interference with Goods) Act 1977 s 8(1).63 In England, the position today is that the defendant in an action of conversion or other wrongful interference is now entitled to prove that a third party has a better right than the plaintiff with respect to all or any part of the interest claimed by the plaintiff. In Australia the common law rules of jus tertii remain unaffected by legislation and the converter of goods remains liable to actions in conversion by, say, a bailee, even though a third party may have a superior right to possession of the goods. The defendant may, however, plead the jus tertii where all that has been disturbed is the plaintiff’s right to possession. The doctrine of jus tertii is reducible to two propositions, as eloquently stated by Pollock and Wright.64 In terms of the first: … existing possession, however acquired, is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some third person through or under whom he does not himself claim or justify.

In terms of the second: … the plaintiff who seeks redress solely for the wrong done to his right to possess is not favoured to the same extent. If his actual possession has not been disturbed by the act complained of, he may be defeated by showing that someone else, who need not be the defendant or anyone through whom the defendant claims, had a better right to possess.

The first proposition is based on the notion that the plaintiff’s actual prior possession will constitute proof of a right to possess which cannot be rebutted by showing a better right in the third party.65 An exception to the rule occurs where the defendant ‘claims under it’.66 This means that the defendant can set up the right of a third person to possession of the goods where authorised by that person so to do.67 The second proposition, which enables the defendant to set up the jus tertii as a defence in circumstances where only the plaintiff’s right to possession but not actual [page 70] possession has been infringed,68 may be explained on historical grounds. Where the act complained of amounted to both conversion of the chattel and dispossession of the plaintiff, the plaintiff suing in trover had the same

advantages as if the suit was in trespass, one of these being that possession was good title against a wrongdoer. However, when the plaintiff was out of possession, the act of conversion could not be an act of trespass, trespass being a wrong to possession alone; the plaintiff had then to rely solely upon conversion, and, as conversion infringes the plaintiff’s title to the chattel, fairness dictated that the defendant should be allowed to prove that the title vested in someone else.69

4.15 The idea that the jus tertii can be pleaded by a converter of goods as against a plaintiff with only an immediate right to possession70 is subject to the exception that a bailee, if sued by the bailor, is estopped from denying the bailor’s title, although some other defence may be available.71 Moreover, the rule that the bailee is not entitled to dispute the bailor’s title and therefore cannot plead the jus tertii against the bailor is itself subject to certain exceptions. Herron J in Edwards v Amos stated the rule thus:72 … the defendant, although a bailee, can plead the jus tertii in three cases, (a) where he defends the action on behalf of and by the authority of the true owner, (b) where he committed the act of conversion complained of on the authority of the true owner, and (c) where he has already made satisfaction to the true owner by returning the property to him.

However, even though (c) is available as a defence to the bailee sued in conversion by the bailor, the bailee should never simply yield to the claim of a third party purporting to be the true owner, because by parting with the goods, the bailee runs the risk of being unable to discharge the onus of proving that the person to whom he or she gave the goods had a better title than the person who deposited them with him or her. Moreover, in this regard it is to be noted that it is no defence for a bailee to assert that the goods have been handed over to a third party even if the bailee can prove that, as between the bailor–owner and the third party, the latter had a contractual right of possession.73 [page 71]

The subject matter 4.16 Any goods can be the subject matter of conversion. The lack of commercial value of the goods is not relevant to the commission of the tort

although it will affect the measure of damages recoverable.74 The High Court in Doodeward v Spence has held75 that, as the foundation of an action in trover or detinue is property, there can be no right to recover that which ‘is incapable of being property’. At issue was whether the corpse of a stillborn two-headed child, preserved in a bottle, could be the subject matter of an action for conversion or detinue. In what has become a seminal judgment, the court held76 that: … so far as it constitutes property, a human body or a part of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive renumeration of [these] circumstances … [but] when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it.

This formulation of the law has subsequently been relied on by both Australian77 and English courts78 to enable orders to be made regarding the use and disposal of human body parts.79 However, some recent cases involving the question of whether sperm extracted and stored can be described as ‘property’, have called into question the logic of the exception based on the exercise of work and skill, particularly in the light of developments in medical science.80 Tangible property can be the subject matter of conversion, and intangible property such as cheques, shares, insurance policies and the like is not necessarily excluded. Thus, although cheques are of value only as choses in action, the courts have satisfied the demands of commercial convenience by allowing the full value represented by them to be recovered in actions for conversion.81 So, where a banker has not handled actual cash or notes but has merely made the appropriate entries by way of credit [page 72] or debit balances, the courts will treat the conversion as being of the goods, that is, of the piece of paper, the cheque, under which the money was transferred, and the value of the goods converted as being the sum represented by the cheque.82 This doctrine, which is certainly applicable to all negotiable instruments,

makes substantial inroads on any possible rule, traceable to the former fiction of losing and finding, that conversion does not lie in respect of rights in intangible property. This rule itself has been applied by Australian courts to bar actions in conversion in respect of proprietary interests in businesses,83 domain names and IP addresses,84 the contents of a bank account85 and international telephone numbers.86 The rule has also been applied by the House of Lords87 to deny a right of action in conversion in respect of debts and contractual liabilities.88

4.17

There is some authority that instruments other than negotiable instruments may also be converted. In Bavins, Junior and Sims v London and South Western Bank89 the English Court of Appeal thought that the full value of a non-negotiable document evidencing a debt could be recovered in an action for conversion. It would seem that whenever a particular intangible right is represented in the ordinary course of business by a special written instrument, even though not negotiable, the value of the right is recoverable in an action for conversion of the instrument; so, a life insurance policy90 or a guarantee91 may be converted. These decisions imply that what is at issue is quantification of damages and not the fact of the conversion. Similarly, shares92 may be converted but the defendant in R v Hansford93 was held not to have converted the proceeds of shares when he attempted to create a spurious debt or spurious payment of a debt by making a false entry in a book of account. The court took the view that there was no dealing or purported dealing with an existing res; at the most there had been an attempt to alter a debtor and creditor relationship by false entries; and the attempted fraudulent creation of a mere personal right could never amount to a conversion. [page 73] At common law, money as currency could not be the subject matter of an action in conversion;94 however, money capable of being identified, such as particular coins95 or bank notes,96 or a bag of money,97 may be converted.98

State of mind of the defendant 4.18 There can only be a conversion if there is intentional conduct resulting

in an interference with the goods of the plaintiff. In Ashby v Tolhurst99 the plaintiff’s car, which he had left in the defendant’s carpark, was driven away by a third party. The case in conversion rested on the plaintiff’s assertion that the carpark attendant admitted to having ‘given’ his car to the third party. The court found it impossible to imply from this admission an intentional dealing with the goods sufficient to constitute a conversion. However, ‘once the degree of user amounts to employing the goods as if they were one’s own then a conversion is established. This point may be reached without any subjective intention…’100 The requisite intention is to exercise dominium over the goods in question; but not necessarily thereby to deprive the true owner of his or her dominium.101 Accordingly, if the defendant intends that dealing with the goods which in fact interferes with the control of the true owner, that act will be conversion ‘though the doer may not know of or intend to challenge the property or possession of the true owner’.102 Mistake and good faith are irrelevant: … the liability … is founded upon what has been regarded as a salutary rule for the protection of property, namely, that persons deal with the property in chattels or exercise acts of ownership over them at their peril.103

[page 74] This rule is illustrated by Rendell v Associated Finance Pty Ltd104 where C repossessed a truck on behalf of the defendant finance company. At the time of the repossession, and unknown to C, the engine of the truck still belonged to the plaintiff, R. The court held that C had converted the engine notwithstanding his mistaken belief as to its ownership. In so doing, it noted that ‘the wrong of conversion does not involve any element of dishonesty in the tortfeasor’.105 It also criticised the attempt by the defendant to apply the principle of Fouldes v Willoughby106 to the facts of the case at hand, saying that to do so was ‘to confuse an intention to take possession of the goods and to exercise a dominion over them, with a mistaken belief as to their identity or ownership’. Likewise, as against the true owner, it is no defence for an auctioneer, after selling goods on behalf of a client, honestly delivering them to the buyer, and paying the proceeds of sale to the client, to say that he or

she was unaware that the client did not own the goods.107

Acts of conversion 4.19 In some of the acts of conversion now to be enumerated, especially those involving a sale of the goods, it is immediately apparent that the act is sufficiently inconsistent with the rights of the true owner to be a conversion. In many of the other ways of committing conversion, the courts have a discretion whether they will treat the act as sufficiently inconsistent with the rights of the true owner to be a conversion — this is especially true in the case of physical damage to the goods and breach of bailment. The courts have not fully spelled out the factors which go to the exercise of their discretion: the most important probably are the extent and duration of the control or dominion exercised over the goods, the intention and motive of the defendant, the amount of harm caused to the goods, and the expense and inconvenience suffered by the owner. One thing is clear: conversion requires some positive, intentional act; some unauthorised and unjustifiable assumption of ownership of goods or some wrongful interference with them which is inconsistent with, or amounts to a repudiation of, the owner’s right of possession. If, for instance, a carrier loses the goods entrusted to him or her this is not a conversion, but if the carrier delivers the goods to the wrong person it is: In the former case, however negligent he may have been, he has done nothing which amounts to an interference with a right of ownership; but in the latter case, by delivering the goods to someone else, he has done an act which, by depriving the owner of his dominion over them, amounts to an interference with his ownership.108

[page 75]

Taking goods or dispossessing 4.20 To take goods out of the possession of another may be to convert them. To steal,109 or to seize under legal process without justification,110 is a conversion. The householder who appropriates the fruit, after lopping off the branches of a neighbour’s apple tree when they overhang his or her land,

commits conversion.111 Merely to remove goods from one place to another is not conversion; at least where such a removal does not involve an interference with the possessor’s dominion over the chattel.112 Where a porter moved another’s goods in order to reach his own, and negligently failed to replace them, he was not liable in conversion for their subsequent loss.113 It may be, though, that if they are moved to an unreasonable place with a consequent risk of loss, this is conversion: in Forsdick v Collins,114 for instance, the defendant came into possession of land on which the plaintiff had a block of Portland stone and the removal of the Portland stone by the defendant ‘to a distance’ was held to be a conversion. A deprivation of the goods which is more than a mere moving of the goods, and which in reality deprives the plaintiff of the use of the goods for however short a time, will generally constitute conversion.115 To make the plaintiff hand over goods under duress is conversion.116

Destroying or altering 4.21 To destroy or to fundamentally alter the nature of goods through, for example, the manufacturing process is to convert them, if done intentionally.117 The quantum of harm constituting a destruction for this purpose is clearly a question of degree, although damage as such will not be sufficient.118 A change of identity or of the character of the goods not amounting to destruction is enough; for example, to partially substitute water for liquor in a vessel is conversion119 but perhaps merely to cut a log in two is not.120 If goods are applied for a purpose which eliminates their utility as goods in their original form, for instance, the making of wine from grapes, [page 76] or of clothing from cloth, this is conversion,121 but not to bottle another’s wine in order to preserve it.122

Using 4.22 ‘If a man takes my horse and rides it and then redelivers it to me

nevertheless I may have an action against him, for this is a conversion …’123 It is irrelevant that the use is intended to last only over a short period because during this time the interference with possession is complete. Unlike merely moving the goods, using them generally entails an intention completely to dispossess the plaintiff, at least for a period of time, and in this way is seriously inconsistent with the plaintiff’s right of possession. So, the taking of a motor vehicle for a ‘joy-ride’ was held in Aitken Agencies Ltd v Richardson124 to be ‘a positive wrongful act in dealing with the goods in a manner inconsistent with the owner’s rights and an intentional assertion of a right inconsistent with the rights of the owner’. To use goods as your own is ordinarily to convert them; it was thus conversion for a person, to whom carbolic acid drums were delivered by mistake, to deal with them as if they were his own by pouring the contents into his tank.125 So, too, the wearing of a pearl necklace without the owner’s permission is a conversion.126 In Mulgrave v Ogden127 it was said: No law compelleth him that finds a thing to keep it safely; as if a man finds a garment, and suffers it to be moth-eaten; or if one finds a horse, and giveth it no sustenance: but if a man find a thing and useth it, he is answerable, for it is conversion: so if he of purpose misuseth it; as if one finds paper, and puts it into the water, etc, but for negligent keeping no law punisheth him.

The claim of the plaintiff ‘would not be defeated by the fact that the defendant whom he sues for the misuse of his temporary dominion of the property claims to be an agent for someone else’.128 In a Scottish case a vendor who, without negligence, used a boat sold by him was held liable in conversion to the buyer to whom property had passed.129 A mere misuse by a bailee, unaccompanied by any denial of title, is not a conversion [page 77] (although it might be some other tort);130 nonetheless, Australian courts have not hesitated to label as convertors bailees who abuse their possession by using the goods in a manner repugnant to the terms of the bailment and hence deny the title of the owner of the goods.131 Moreover, the courts have regarded conversion as an appropriate sanction where the use by the bailee amounts to a serious interference with the right to possess, especially where

the goods themselves have been placed at risk. This occurred in Model Dairy Pty Ltd v White132 where the proprietor of a dairy systematically and intentionally used the branded bottles of the plaintiff’s dairy for the supply of her own milk. It was held that an action in conversion would lie, because ‘to hand a bottle over to a customer, making him the bailee of it or binding him by an implied contract to return it, and so subjecting it to the risk of breakage, delay in returning, and non-return, appears quite sufficient deprivation of the owner’s right to possess’.133

4.23 Perhaps the leading Australian authority on the question of user is Penfolds Wines Pty Ltd v Elliott.134 This is a judgment which in many ways highlights the difficulties confronting courts in deciding whether or not a particular act is one of conversion. E was a hotelier who, from time to time, sold bulk wine to customers who themselves provided bottles in which to carry it away. The appellant was a company which made wine and sold it in bottles the ownership of which it retained. The company’s bottles were embossed with the company’s name and its sales invoice informed customers that the bottles remained the property of the company and noted that once the contents were used, ‘the bottles must be forthwith on demand handed or given over or returned to the said company’. The incident giving rise to the legal proceedings was occasioned when an inspector under the Pure Foods Act 1908 (NSW) took two bottles, branded with the Penfolds Wines label, which E’s brother had left to be filled with bulk wine and, having been so filled, were waiting to be called for by his brother. Individual members of the High Court, while in agreement on the underlying principles, differed as to whether E’s practice amounted to conversion.135 Dixon J discounted the possibility of conversion, the essence of which, he said, is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property in the chattel. The redelivery of the bottles to persons from whom the respondent had received them, although involving a physical transfer of possession, was not intended nor did it purport to confer any right over the property in the bottles. Similarly, the filling of the bottles with the respondent’s [page 78]

wine was not conversion because it did not involve the exercise of any dominion over them, however transitory. Accordingly, he held:136 There was no user on the footing that the respondent was owner or that the appellants had no title, in short no act of ownership. The essential elements of liability in trover are lacking.

On the other hand, Latham CJ with whom Williams J concurred,137 regarded E’s practice as a dealing with the bottles in the manner of an owner and as such a conversion. There was, he said: … a handling of the bottles, an actual user of them, for the purposes of the defendant’s trade … such dealing with the bottles under a claim of right so to deal with them … was inconsistent with the dominion of the owner of the bottles and was a conversion.

Starke and McTiernan JJ138 regarded the actions of the respondent in the delivery of the two bottles to the inspector as a conversion, on the basis that the use of the bottles by E in the course of his business as receptacles for the wine ordered by his brother was inconsistent with the dominion and right of property of the appellant in the bottles. But neither judge was prepared to go as far as Latham CJ in ordering an injunction (which was the remedy sought by the appellant) because, in their view, there was no evidence of any systematic or substantial dealing with the bottles in a manner inconsistent with its ownership.

Receiving 4.24 Voluntarily139 to receive goods in consummation of a transaction which is intended by the parties to give to the recipient some proprietary rights in the goods may be a conversion actionable by the owner.140 It has been held a conversion for a purchaser to receive goods,141 or for a banker to receive a cheque from a person who has no title to it and to credit the proceeds to that person’s account.142 But the defendant who in good faith receives the goods as a warehouseman does not commit conversion;143 this principle will extend to all who receive goods for transportation or safekeeping because it is not the main purpose of such transactions to pass interests in the goods, although the law may collaterally attach interests by way of lien. Receipt of goods by way of pledge is conversion if the delivery of the goods is conversion. [page 79]

Exceptions to the principle that receiving is conversion 4.25

There are, however, many instances where the demands of commercial convenience have been thought to outweigh the need to protect owners of goods; indeed, the courts have in certain circumstances gone so far as to hold that receivers of goods from persons with no title commit no conversion and sometimes that they even acquire a good title to them. Some examples are given here. (i)

If a seller or pledgor has a voidable title to the goods, and this title has not been avoided at the time of sale or pledge, a buyer or pledgee in good faith and without notice of the defect in title will acquire a good title and will commit no conversion.144 A voidable title will arise, for example, under a contract induced by fraud, undue influence or duress.

(ii)

The true owner of goods may be precluded by his or her conduct from denying the seller’s authority to sell, whereupon the buyer will acquire a good title.145 Where a mercantile agent having authority in the ordinary course of business to dispose of goods is in possession of such goods with the consent of the owner, any disposition of them made in the course of the business of a mercantile agent to a bona fide purchaser for value is as valid as if he or she had the authority of the owner.146 In recent times this provision has been most frequently invoked with reference to motor cars.147

(iii)

The receipt in good faith of goods or documents of title under a disposition by a person (or his or her mercantile agent) who, having sold the goods, continues in possession of the goods or of the documents of title to the goods, is not a conversion.148 Conversely, if a buyer transfers goods which have not yet vested in him or her, by the buyer or the buyer’s mercantile agent delivering the goods or document of title to a person receiving them in good faith, and if the buyer was in possession with the consent of the seller, there is no conversion by the recipient who may acquire a valid title.149

(iv)

If a bona fide purchaser acquires a good title to a negotiable instrument upon delivery by a person without title his or her receipt of it on transfer is not a conversion.

(v)

Where goods are sold in market overt, according to the usage of the

market, the buyer acquires a good title to the goods and commits no conversion, provided that they are bought in good faith, and without any notice of any defect of title on the part of the seller.150 [page 80]

Disposition without delivery 4.26 Persons who agree to sell goods to which they have no title and who do not transfer possession of them do not thereby ordinarily commit conversion, for the bargain of sale is void if the seller has no rights in the goods.151 A mere bargain of sale, that is, a purported sale of chattels, will not operate as a conversion if unaccompanied by delivery of possession or other interference with the character of the actual possession.152 If, however, the agreement of sale is made in market overt, the agreement passes the property in the goods, and will amount to a conversion by the seller even though the goods are never delivered to the buyer.

Disposition and delivery 4.27 Ordinarily a person who without lawful authority disposes of goods with the intention of transferring the title or some other right in the goods, and who delivers the goods, thereby commits a conversion. A sale153 and a pledge154 may each constitute such a disposition. In Syeds v Hay155 the rule was applied to a sea captain who delivered goods to a wharfinger in the erroneous belief that the wharfinger had a lien on them. It is also conversion for accountants, contrary to the plaintiff’s instructions, to deposit cheques drawn in her favour into their own account, instead of into her cheque account.156 A fraudulent sale by the bailee entrusted with a chattel is unquestionably a disposition repugnant to the bailment which revests in the bailor the right to immediate possession, thereby conferring standing to maintain an action for conversion.157 The main difficulty arises where the defendant is an innocent transferor. Innocence of itself is no defence; so the auctioneer who in good faith sells goods which do not belong to a client commits conversion by

handing them over to the buyer.158 Yet it is felt that the need to support the validity of commercial dealings must, in the interests of innocent defendants, have some limits. [page 81]

4.28 In Hollins v Fowler Blackburn LJ said:159 … one who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused from what he does if the act is of such a nature as would be excused if done by the authority of the person in possession, if he was a finder of the goods or entrusted with their custody.

This did not exclude from liability the defendants in the instant case, who were acting as cotton brokers, buying, not as agents on account of a certain customer as principal, but in expectation of finding a customer. The principle seems to be that the defendant who negotiates the transaction and then disposes of the goods in pursuance of it, is liable: if, on the other hand, someone else has effected the transaction, and the defendant acting on his or her behalf merely delivers in consummation of that transaction, it is not conversion by the defendant. Therefore, a packer shipping goods on the order of the principal does not commit conversion;160 nor in similar circumstances do mere carriers161 or warehousers.162 National Mercantile Bank v Rymill163 marks the furthest limit of this exception and is distinguishable from Consolidated Co v Curtis only in that the auctioneer did not negotiate the sale. In this case goods were deposited with the defendant auctioneer to sell, the seller eventually sold them himself, and on his instructions, the defendant handed them to the buyer and in so doing was held not liable in conversion to the true owner. In RH Willis and Son v British Car Auction Ltd,164 Lord Denning treated the Rymill case as a departure from Hollins v Fowler by a court anxious to protect the auctioneer, and decided that an auctioneer is liable in conversion to the true owner where goods are sold by his or her intervention, under the hammer or as the result of a provisional bid.

4.29 An involuntary bailee, acting reasonably, who delivers goods to someone not entitled to them does not commit conversion. Thus, where, upon

goods being refused at the consignee’s late place of business, the carrier took them back to his store and notified the consignee, and then handed them to a former employee of the consignee (being unaware that this man had left the consignee’s employment), this was no conversion.165 On the other hand, the defendant not placed in the dilemma of the involuntary bailee, who nonetheless becomes a party to an unauthorised transfer of possession, does commit conversion. In Hiort v Bott,166 for example, an invoice and delivery order had mistakenly been sent by the plaintiffs to the [page 82] defendant. Thinking that he was thereby correcting the error, on his own initiative the defendant endorsed the delivery order over to the plaintiff’s agent, who thereby obtained the goods for himself and then absconded. This was conversion167 because the defendant had transferred title to possession of the goods, causing them to be lost to the true owner. The transfer must, however, be one which disturbs the plaintiff’s right of possession and it must be causally connected to the plaintiff’s ensuing loss of possession. These points were brought out in Kitano v Commonwealth168 where the acts of the defendant were not regarded as delivery of the right to possession. The plaintiff and three others were co-owners of a yacht, the ‘Akitsushima’, in which they sailed from Japan to Darwin. Once in Australia, the relationships between the four co-owners rapidly deteriorated to the point where the plaintiff and the master of ship, one M, independently of each other applied for a certificate of clearance from the Australian Customs Service (ACS). The clearance was ultimately issued to M as the master, who sailed away without the plaintiff. The plaintiff’s action in conversion against the Commonwealth failed. It was held that, although the issue of the certificate enabled the master to sail the yacht away without breaching the Customs Act, it nevertheless did not operate as a delivery of possession of the yacht from ACS to M, because M and his companions already had possession. The yacht, while subject to the control of ACS, was not in their possession, and the issue of the clearance certificate, though it facilitated the ship’s departure from Australia, was nonetheless not of itself a transfer of possession nor of the right to possess. The deprivation sustained by the plaintiff was effected,

not by the issue of the certificate but by the actions of M and his associates in sailing the yacht away. In the case of cheques and some other negotiable instruments there is a limited statutory exemption from liability. A banker paying a cheque (even though not indorsed or irregularly indorsed) in good faith and in the ordinary course of business to the collecting banker is in the same position as if it had paid the cheque to the true owner.169

Misdelivery by carrier 4.30 A carrier170 or warehouseman171 who by mistake delivers goods to the wrong person commits a conversion, whether or not the mistake was innocent.172 But failure to deliver because the goods have been lost or destroyed by accident or carelessness [page 83] is not conversion.173 Nor is it conversion for a bailee174 or pledgee175 without notice of the claim of the true owner to return goods to the person from whom they were received. Bailees with such notice, by contrast, return the goods at their own risk. Bailees in this position should interplead, thus removing themselves from the ambit of the dispute.176

Refusal to surrender on demand 4.31 A refusal to surrender goods upon lawful and reasonable demand is a conversion.177 In particular, this covers the situation where the possession of the defendant was originally lawful; it may be invoked, for example, where the receiving is not itself actionable. There is a great deal of precedent on this topic, but the principles are quite simple. Even if the defendant no longer has possession at the time of the demand and refusal it is no defence that prior to the accrual of the plaintiff’s title the defendant wrongfully parted with the goods.178 If the defendant refuses to surrender in circumstances where it would be unreasonable to do

so immediately on demand, this is not conversion. The defendant may postpone surrender pending a reasonable time in which to confirm the title of the claimant,179 or, if an employee, to consult the employer.180 This reasonableness is a question of fact; many factors may be relevant — the time of the demand, the expense and inconvenience of immediate compliance, the knowledge on the part of the defendant of the claimant’s title, and identity, and whether the defendant had adequately conveyed to the plaintiff the grounds for the temporary refusal. In Howard E Perry and Co Ltd v British Railways Board181 the refusal by the defendant carriers to allow the plaintiffs to collect steel owned by them but held by the defendants in their depots during a national steelworkers’ strike was held to be wrongful conversion, notwithstanding the defendants’ genuine fear of sympathetic industrial action by their own employees if they allowed the plaintiffs so to do. The doctrine of estoppel may sometimes operate to prevent the defendant from setting up facts which would have otherwise justified a refusal.182 An artificer is entitled to retain a chattel after completion of the work until such time as he or she has been paid. Prior to completion of the work it seems that the artificer would also be entitled to retain possession of the chattel either on the basis of the contract or possibly on that of a lien for the fair and reasonable price [page 84] of the work actually done.183 The unpaid seller’s lien similarly entitles the unpaid seller to retain possession of the goods until such time as the price has been paid. In certain circumstances the unpaid seller may resell the goods, as where they are of a perishable nature, or where the unpaid seller notifies the buyer of the intention to resell and the buyer does not within a reasonable time pay or tender the price.184 Where goods are left on land and the occupier refuses to allow the owner of the goods to enter the land and retrieve them, the refusal is not necessarily conversion.185 It may become conversion if the occupier establishes any right in respect of the goods,186 or denies the plaintiff most of the rights of ownership, including the right to possession, for a period which is plainly

indefinite.187 But a mere threat to prevent an owner in possession from removing the goods will not in itself amount to conversion.188

Goods lost or destroyed 4.32 As noted in 4.21, intentional destruction of goods in the possession of another will be conversion.189 Mere careless or negligent loss or destruction, on the other hand, will not, since in these cases there is no voluntary act.190 An involuntary bailee who loses a chattel is not liable for failure to return it,191 but is liable for intentional destruction of or damage to the goods. Even ‘unconscious bailees’, who are unaware that the goods are not their own property, are under a duty to exercise reasonable care to confirm their ownership before destroying them.192

Residual acts amounting to a conversion 4.33 The above are not exhaustive categories of acts of conversion. There are other acts which are not capable of being readily classified which may yet fall within the definition of conversion.193 In these residual cases the judicial discretion whether to treat the act as sufficiently inconsistent with the true owner’s rights for a conversion is especially important. [page 85]

Conversion as between co-owners 4.34 Co-ownership does not afford a defence to certain proceedings in conversion. It is no defence, for example, where the defendant, without the authority of the other co-owner, destroys the goods, or disposes of them in a way giving a good title to the entire property in the goods, or otherwise does anything equivalent to the destruction of the other’s interest in the goods.194 Thus a partner who paid cheques into a third person’s bank account was, by excluding his co-owner’s right to enjoy the proceeds, liable for conversion.195 But a co-owner cannot be sued for conversion merely by making use of the common property in a reasonable way.196

Nor is there necessarily a conversion if a co-owner takes and keeps the goods:197 the law requires the destruction of the goods or some equivalent act.198 So, in Parr v Ash it was held199 that a joint owner could not sue another joint owner of a chattel in trespass or trover unless the chattel had been destroyed, thereby disabling the former from recovering his share. More recently, in Kitano v Commonwealth200 the High Court ruled that conversion might be brought at the instance of a co-owner of a chattel and, in particular, at the suit of a co-owner of a ship sent to sea by one owner without the consent of the other and subsequently lost. For, as Mason J explained,201 this would constitute a dealing with the ship in a manner inconsistent with the rights of the plaintiff as co-owner by excluding the plaintiff from possession and preventing the exercise of the plaintiff’s rights.

Damages In general — the value of the plaintiff’s interest 4.35 The plaintiff who has been deprived of goods is, at common law, prima facie entitled to recover the full value of those goods.202 However, the loss of the plaintiff with only a limited interest in the goods may not always be represented by their full value. The measure of damages recoverable here will depend upon whether title to sue is based on actual possession or upon the right to possession as well as the status of [page 86] the defendant with regard to the chattel.203 It was established in The Winkfield 204 that where the action in conversion is brought by a person in actual possession and the defendant has no personal interest in the goods, the measure of damages is the full value of those goods. Nor is it open to the defendant to plead a third party’s interest — the jus tertii — in denial of the plaintiff’s right. The position was stated thus: … as between bailee and stranger possession gives title — that is, not a limited interest, but an absolute and complete ownership, and he is entitled to receive back a complete equivalent for the whole loss or deterioration of the thing itself.205

Where the action in conversion is brought by a person in actual possession against a defendant who does have an interest in the chattel, then the plaintiff’s damages in respect of the interference with the interest are limited to the value of that interest. Thus, in City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd it was held206 that where the defendant is the bailor with an interest in the chattel, what is in question is the value of that interest as between the plaintiff and the defendant.207 A hire-purchaser wrongfully dispossessed by the hire-purchase owner will be entitled to the value of the goods less the amount which would have to be tendered to obtain possession (the unpaid instalments).208 Similarly, a lienor (bailee) whose goods are seized by the owner (bailor) can maintain an action in trover, but can only recover in respect of his or her limited interest in the goods, rather than their full value.209

4.36 In general, where the plaintiff’s title to sue in conversion is based on a right to possession, rather than actual possession, damages will be limited to the value of the interest rather than the full value of the chattel. In Butler v Egg and Egg Pulp Marketing Board210 the appellants, egg producers, were obliged by legislation in Victoria to deliver eggs to the respondent board, which, by virtue of the same legislation, also had absolute property in them. The appellants, in breach of their statutory obligations, sold and delivered the eggs to a third party, giving rise to an action in conversion. The High Court refused to award as damages the full value of the property converted; instead it limited damages to the sale price of the eggs less the amount the board would have had to pay to the appellants under the egg marketing scheme had the latter delivered the eggs to them instead of selling to a third party. The court’s justification for this approach was that, in actions of conversion, as much as in the case of other actionable wrongs,211 compensatory damages are generally [page 87] assessed on the basis that injured parties should receive compensation to restore them to the position they would have been in had the contract been performed or the tort not been committed. The court said that in most cases of conversion, the actual loss is usually represented by the full value of the

property converted: Hence the statement which appears so often in the books that the general rule is that the plaintiff in an action of conversion is entitled to recover the full value of the goods converted, but this statement should not be allowed to obscure the broad principle that damages are awarded by way of compensation.212

In the course of its judgment, the High Court alluded to the ‘true rule’ as stated by Bramwell B in Chinery v Viall213 that the plaintiff is entitled to recover no more than any real damage sustained.214 Accordingly, ‘a man cannot by merely changing the form of action215 entitle himself to recover damages greater than the amount to which in law he is entitled, according to the true facts of the case and the real nature of the transaction’. In that case an unpaid seller who sold goods to a third party was held liable to the original buyer, to whom he had not delivered the goods, and who was not in default, only for the value of the goods less the contract price owing to him.

4.37 The amount of damages will likewise be restricted where an owner of goods under a hire-purchase agreement sues the hire-purchaser who, in breach of the agreement, converts the goods by selling them; alternatively where the owner sues the third party to whom the goods were wrongfully sold. Working on the principle that damages are payable by way of compensation, Australian courts have limited damages to the value of the plaintiff’s interest, usually the amount as determined by the agreement, namely, the ‘payout figure’.216 Similar principles have been applied where the plaintiff is the mortgagee. The proper measure of damages is the value to the mortgagee of the goods subject to the mortgage, namely, the unpaid balance of the debt plus interest.217 [page 88]

4.38 How is the full measure of the plaintiff’s loss to be assessed? Where goods are of a kind which can readily be bought in the market, the market value218 at the time of expropriation will be the appropriate measure;219 in the absence of a market for the goods220 the replacement value in a comparable state,221 that is, goods of a similar quality and condition222 or the original cost minus depreciation will be the standard. It has been suggested that, in the case of especially manufactured or acquired goods, another

relevant factor would be whether, prior to the conversion, the plaintiff had ceased to have a special need for them.223 Where the defendant’s action obfuscates the assessment of damages, the courts may award the highest possible value consistent with the available evidence.224 Where a negotiable instrument or other document ordinarily representing the chose in action is converted, the value which the document represents, and not merely its value as a piece of paper, is the basis of the quantum of damages.225 Where there is an infringement of copyright of part of a book the damages are based on the value of the portion of the whole book, less the cost of binding, which the infringing matter bears to the whole of the book.226 In Ash v Dickie227 an article in the defendant’s newspaper infringed the plaintiff’s copyright, and it was held that damages were to be based, not on the pulp value by weight, but upon the selling price of the newspaper and the proportion which the infringing article bore to the whole issue. Where goods subject to copyright are converted,WH Brine & Co v Whitton228 suggests that the measure of damages should be the market value of the goods at the date of conversion rather than the value of the copyright.

4.39 The time at which the value of the goods is to be determined is, ordinarily, the date of the conversion229 (but further special damage may also be alleged [page 89] and proved).230 The comment has been made,231 though, that this rule is now exemplified as much by exceptions to it as by example of it. Once a claim for conversion has accrued the plaintiff is not entitled to delay issuing the writ and thereby base the action on a subsequent demand and refusal — the duty to mitigate damages operates.232 If the goods decrease in value between the date of conversion and the date of judgment, the plaintiff may still recover the value at the date of the conversion.233 The defendant broker in Solloway v McLaughlin234 fraudulently and contrary to his instructions sold shares of the plaintiff deposited with him. By the time of the trial the defendant had bought in replacement an equivalent number of the shares at a greatly reduced market

value. Although the net result was to put the plaintiff in a better position than if his instructions had been obeyed, he was held entitled to recover the difference between the value of the shares at the time of the conversion and the value of the shares since bought in replacement.

Damages greater than market value 4.40

Nevertheless, the market value (even where ascertainable) at conversion will not necessarily mark the top limit of damages recoverable in conversion in the following instances: (i)

Evidence comes in later to show what was the value at conversion.235

(ii)

The market value of the goods rises between the date of the accrual of the cause of the action and the date of trial. If the act of conversion relied on by the plaintiff is a sale, and by the time when the plaintiff knows or ought to know of the sale the value has increased, the plaintiff can recover that higher value.236 There is some authority also for the view that the plaintiff may recover from a broker who has sold his or her stock its increased value within a reasonable time for buying replacement stock;237 that is, the court estimates the value of the chance of a profit.238 [page 90] The defendant in Greening v Wilkinson239 wrongfully refused to hand over to the plaintiff the plaintiff’s warrants for cotton which were then worth 6d per pound. By the date of the trial they had increased in value to 10½ d. The jury awarded damages on the basis of 10½ d per lb in accordance with Abbott CJ’s ruling that they ‘may give the value at the time of conversion, or at any subsequent time, at their discretion, because the plaintiff might have had a good opportunity of selling the goods if they had not been detained’. However, where the defendant converts the plaintiff’s goods and either before or after the conversion takes steps to increase their value the plaintiff cannot ordinarily recover that increased value.240 Thus where the defendant converted a partially built ship which he then completed at his own expense, the court’s

view was that the plaintiff was entitled to recover the market value of the completed ship less the expense incurred by the defendant in completing it.241 Similarly, where a car was left at a garage for repairs and just before the repairs were completed the car was totally destroyed in a fire caused by the servants of the garage, the damages awarded in conversion were held to be the value of the car less the value of the work expended on it by the converter.242 (iii)

The plaintiff who incurs pecuniary loss as a direct consequence of the conversion may recover this as special damage in addition to the market value of the goods, provided this damage is not too remote.243 A labourer deprived of tools has on this basis been able to recover loss of wages;244 the owner of a converted pony could claim the cost of hiring another;245 and the consignees of cargo were entitled to recover ‘hedging’ costs.246 Where goods were hired out in the course of a business, besides ordering the return of the goods, the court awarded damages at a reasonable hiring charge for the entire period of [page 91] detention until judgment.247 In Egan v State Transport Authority248 a contractor agreed with a railway authority to construct bridges and culverts on the railway. The authority later terminated the contract taking possession of the contractor’s plant and materials and was held liable (some 16 years later) for an unwarranted conversion of the contractor’s goods.249 During a lengthy discussion as to the nature and amount of damage suffered by the contractor, the court noted that the wrongful seizure of the whole of his plant and materials had severely damaged, if not destroyed, his ability to re-establish himself in business at an early date or at all. Utilising an analysis from Ogus, The Law of Damages and adopting Ogus’s terminology of ‘static/basic’ loss to describe the ‘value’ of the chattel itself and ‘dynamic/consequential’ loss to describe the damages flowing from inability to enjoy or to put the detained chattel to profitable use,250 the court ordered the damages to be expressed in 1982 money terms, not only with respect to the ‘static/basic’ loss of the chattels themselves, but also to the contractor’s

‘dynamic/consequential’ losses. Whereas the contractor’s consequential loss arose from his inability to earn profits by using or hiring out the plant during the remainder of its lifetime, this had to be considered in the light of economic conditions affecting contractors in the years following 1966. These factors were initially favourable towards contractors but, as the plant aged and deteriorated further, the expected profit would have decreased until such time as the plant ceased to have any profit-earning capacity. (iv)

The effect as between the parties to a satisfied judgment for damages in conversion is to transfer the title to the defendant.251 It follows that the court will not award damages for loss of use as well as for the value of the goods where the effect would be doubly to compensate the plaintiff: the capacity for profitable use is part of the value of the goods.252 Thus the defendant who converted a manufacturing plant of the plaintiff was liable for the value of the plant when converted but not for loss of use between that date and trial.253 On the other hand, if the defendant wrongfully detained goods and later sold them it seems that the plaintiff may recover in addition to their value the loss of use from the date of the unlawful detention until sale,254 and indeed until the plaintiff had a reasonable opportunity to buy a replacement after learning of that sale,255 but not for loss of use until trial. User damages are generally awarded where the [page 92] defendant has made improper use of the plaintiff’s chattel,256 even if the plaintiff might not have sought to use it and so incurred no loss.257

(v)

It is doubtful in what circumstances a buyer who fails to recover goods can claim a loss of resale profit.258 Where the action of conversion based on non-delivery is an alternative to an action in contract and the seller is unaware of the resale contract, this loss of profit is not recoverable as such in conversion, although where there is no market in the goods the resale price may be evidence of value.259

(vi)

In appropriate circumstances exemplary damages may also be

awarded.260 Where the wrong sued upon is a bare conversion, the courts are unlikely to regard the circumstances as appropriate. However, the situation will be otherwise where the evidence discloses not only conversion but also trespass261 or where it reveals a ‘cynical disregard for the plaintiff’s rights’.262

Damages less than market value 4.41 The courts will, if the defendant returns the goods before trial, reduce the damages in conversion by the amount of their value at that time:263 in short, the courts will in these circumstances not enforce a sale on the defendant, and ‘subject to the payment of costs and special damages (if there are any) an action for damages for conversion can always be stayed if the defendant offers to hand over the property in dispute’.264 Australian courts seem divided as to whether the plaintiff can be compelled to take the goods back. Kidman v Farmers’ Centre Pty Ltd265 is authority for the view that the plaintiff cannot be so compelled, but an earlier decision of the New South Wales Supreme Court has warned266 that the plaintiff who refuses to accept delivery and insists instead on proceeding with the action and who is not awarded substantial damages risks having to pay the costs of the action. On this view of the law, the prudent defendant should adopt the course mentioned by Lord Justice Bramwell in Hiort v The London & Northwestern Ry Co,267 of tendering the goods to the plaintiff; alternatively, of requesting a stay of proceedings on delivery up of the goods and payment of nominal damages. [page 93] Where goods acquired by the plaintiff for use in the manufacturing process have been wrongfully detained and later returned, the plaintiff must show that a loss of profits or other pecuniary loss has resulted from the detention.268 Plaintiffs who fail to prove that they would have used the goods at any time before their return cannot recover the fall in their market value over the period of their detention and may receive only nominal damages.269 It will be otherwise where they have purchased the goods for resale during the period

of detention.270

Limitation of actions 4.42 Each of the states and territories within Australia, and New Zealand, has a limitation statute which stipulates the period within which actions in conversion may be brought. In all jurisdictions other than the Northern Territory,271 an action in conversion must be brought within six years of the cause of action accruing.272 In all jurisdictions other than South Australia, if there are successive conversions (or wrongful detentions) in respect of the same goods (whether by the same person or not), the cause of action is extinguished after expiry of six years from the accrual of the cause of action in respect of the original act of conversion (or wrongful detention).273 In most such cases, it is expressly provided274 that once the period of limitation expires without the plaintiff having recovered possession of the chattel, that party’s title thereto will be extinguished.275 If the right of action is concealed by fraud the limitation period in all jurisdictions other than South Australia does not begin to run until the plaintiff discovers or ought with reasonable diligence to have discovered the fraud.276 The notion of fraudulent concealment has been given a very wide meaning and a party will be held to have fraudulently concealed the cause of action, even if no active steps were taken to conceal it, if he or she knowingly committed a wrongful act and kept it secret.277 Moreover, if the circumstances of the commission of a conversion are such that a plaintiff could not reasonably be expected to know that the conversion was taking place, this has been held to be [page 94] a concealment of the right of action within the meaning of the similarly worded English Limitation Act.278 The provisions of various limitation statutes regarding successive acts of conversion and wrongful detention as well as those relating to the extinction of the plaintiff’s title to the goods have radically altered the traditional application of the law as set out, for example, in Thomas Brown & Sons Ltd v Fazal Deen.279 The High Court there allowed a plaintiff, whose right of

action in conversion had been barred by lapse of time, to demand return of the goods and then to sue in detinue upon the bailee’s breach of duty to deliver. It is clear that were a similar set of facts to be adjudicated upon today in any jurisdiction other than South Australia or Western Australia, the plaintiff might well have no cause of action at all, either by virtue of those provisions relating to successive acts of conversion or wrongful detention or by those concerning extinction of title.

Trespass to Goods 4.43 An intentional or negligent interference with goods in the possession of the plaintiff is a trespass provided that the interference is direct. This tort protects several interests. First, it protects the plaintiff’s interest in the retention of possession of goods (though the tort of conversion also protects this interest and is more often relied on for this purpose than is trespass). Secondly, trespass protects the plaintiff’s interest in the physical condition of goods, and thirdly, the interest in the inviolability of goods; that is, protection against intermeddling.

Forms of trespass 4.44 Trespass to goods assumes various forms. Taking goods out of the possession of another,280 moving them from one place to another,281 damaging or destroying them282 or even bringing one’s person into contact with them,283 directing a missile at them,284 and unauthorised user of goods285 have all been held to be trespasses.

Character of the act of the defendant 4.45 There cannot be a trespass if the interference is indirect.286 Thus, to lock the room in which the plaintiff has put the goods is not a trespass to those goods.287 [page 95]

Although a person who mixes a drug with the feed of a racehorse commits a trespass quoad the feed, this act does not become a trespass to the racehorse when the stable hand later gives this feed to it.288 In the leading Australian case on this point, Hutchins v Maughan,289 the plaintiff, a drover, took his sheep and two sheepdogs onto land, despite having been told by the defendant of the presence there of poisoned baits. The dogs found the baits, ate them and died. The Victorian Supreme Court held that ‘the question whether the injury is immediate or consequential is still vital, in spite of procedural reforms, and … the old rule still applies that injury that is consequential is not a trespass’.290 The baits had been laid before the plaintiff took his dogs onto the land and, of itself, the laying of the baits was an act that did the plaintiff no mischief. Before he could suffer an injury, he had personally to intervene by bringing his dogs onto the land. In the court’s view, the resultant injury could not be said to have followed so immediately in point of causation upon the act of the defendant as to be termed part of it nor directly occasioned by it but was merely consequential. Hence trespass did not lie.291

4.46 It is most likely a trespass to cause the goods of the plaintiff to come into harmful contact with some other object; for example, to drive sheep over the edge of a cliff into the sea below. It is not trespass merely because one’s animal inflicts direct injury on goods.292 Acts of trespass may involve varying degrees of injury. It is trespass to goods to cut and take away trees,293 or to shoot racing pigeons294 (whether or not the goods are capable of being stolen is irrelevant).295 The damage need not be material or lasting; thus, to beat a dog296 may also be an act of trespass. In order to decide whether a mere touching of goods is a trespass one must ask whether trespass to goods is actionable per se. There is little authority on the point. A dictum of Lord Blanesburgh in William Leitch and Co Ltd v Leydon is often used to support the view that it is always actionable per se.297 There, in fact, it was left undecided whether the proprietor of a soda fountain committed a trespass by filling with soda water, for his customers, bottles which he knew to belong to the plaintiffs, mineral water manufacturers. Lord Blanesburgh’s dictum is only a summary of the argument of counsel for the appellant which the judge expressly stated must not be taken for his own view. Some authors argue that, by analogy with trespass to land, trespass to goods should be actionable without either dispossession or actual damage.298

Kirk v Gregory299 may be regarded as authority for such a proposition. [page 96] Here a woman, who moved rings belonging to a man who had just died from one room in his house to another, was held liable in nominal damages for this asportation. But an asportation (or moving of the goods) is not necessarily a dispossession.300 If in gently reversing my car I touch the bumper of another car, the brake of which has not been applied, and, without damaging it, cause it to move a few feet, I have not dispossessed the owner, though I have asported the car. In Everitt v Martin301 the court took the opportunity to consider whether an act involving neither asportation nor dispossession could amount to a trespass to goods. In issue was whether a person could commit an act of trespass by allowing his coat to come into contact with another person’s car. Adams J, after referring to the conflicting authorities on this point, held that he would hesitate to be the first to declare a right of action for the mere touching of another’s goods without damage or asportation, at least in the case of intentional contacts. However, he had no hesitation in declaring that there would be no right of action in the case of merely accidental contact where no damage is done.302 There remain good reasons for making trespass to goods always actionable per se, and it is thought that it is both consistent with the authorities and in accordance with the general principles of trespass so to hold.303 On a practical level it is arguably the only possible remedy for museum authorities anxious to guard museum exhibits from unauthorised touching.

State of mind of the defendant 4.47 The act constituting the trespass must be either intentional304 or negligent.305 In National Coal Board v JE Evans and Co (Cardiff) Ltd,306 the English Court of Appeal held that a contractor whose employee, while excavating, damaged the cable of the plaintiff and whose act was neither intentional nor negligent,307 was not liable in trespass to goods. The requisite

intention will be present where the interference with the chattels is deliberate or wilful, but there is no liability for accidental trespass to goods which is not negligent.308 Nor will liability arise out of a purely involuntary act; a sleepwalker who damages a vase while sleepwalking is not liable.309 A simple mistake, however, will not affect the voluntary or intentional nature of the act — if [page 97] the defendant intended to interfere, the trespass is intentional irrespective of whether the defendant knew that the act was a trespass;310 for example, where the defendant believed that he or she owned the goods.

The interest of the plaintiff 4.48 As Dixon J in Penfolds Wines Pty Ltd v Elliott noted,311 ‘trespass is a wrong to possession’. It follows from this that the plaintiff must be in possession of the goods at the time of the unlawful interference. Possession connotes both the power (factum) of exercising physical control312 and the intention (animus) to exercise such control on one’s own behalf.313 Whether the plaintiff is the owner is immaterial.314 So if A intends to catch a butterfly which is in A’s garden, and before A can do so it flies onto the highway where B catches it, A has no possession — there is animus but not factum. On the other hand, A has possession of the butterfly specimens in A’s natural history collection. In the early case of Johnson v Diprose Lord Esher described the notion of possession in the following terms:315 … the plaintiff in an action of trespass must at the time of the trespass have the present possession of the goods, either actual or constructive, or a legal right to the immediate possession.

Thus, a cyclist who parks his or her cycle outside a shop remains in possession of it, but if a thief rides away on it, the thief then has the possession despite obtaining it wrongfully. Moreover, if A borrowed B’s gun and handed it to C, B could not sue C in trespass (unless B showed that C authorised or ratified A’s act), because B would have had no possession at the time when C received possession from

A.316 If a lodger holds goods on sale or return from a shopkeeper, and those goods are seized in pursuance of a lawful execution on the landlord’s goods, this has been held to be a trespass to the lodger.317 If X and Y both claim the right to goods which neither has previously possessed, and in a scuffle for them X snatches them from Y’s hand, Y does not have possession to file a suit in trespass.318 The bailee, even a gratuitous one,319 can sue in trespass. The Crown may therefore sue in respect of the loss of Post Office mails.320 Where a landlord demised land to the plaintiff for 21 years, with liberty to dig a half acre of brick-earth annually, and to dig in excess of that at an agreed price, [page 98] the plaintiff could sue a third party who took away brick-earth from the land.321 And where the plaintiff had a lien over goods the plaintiff was held to have ‘the requisite foundation’ for a trespass action.322

4.49 A bailor for a fixed term does not have possession and therefore cannot ordinarily sue in trespass for an act done to the goods bailed.323 Whether the bailor with an immediate right to possession, as in the case of a bailment at will, may sue, is a more complex matter. Taking Lord Esher’s statement324 at face value, it would seem possible. Certainly a bailor with an immediate right to possession could sue in conversion or detinue but the position as regards trespass may be different. The matter was canvassed in Penfolds Wines Pty Ltd v Elliott.325 Latham CJ, relying on Johnson v Diprose and other early authorities, favoured the view that where, as here, the bailment had been determined by the bailee’s misuse of the bottles, the bailor who thereby acquired the right to immediate possession could sue in trespass.326 Dixon J disagreed,327 making the point that trespass exists to protect not the immediate right to possession but possession itself. He regarded the statement made by the early authorities about an immediate right to possession being enough to support an action in trespass as ‘misunderstood’. It did not mean that ‘an owner of a chattel personal out of possession but entitled immediately to resume it could complain in trespass of any use of the chattel which he had not authorised made by the person in possession or by anyone acting under the latter’s authority’. For, if it did, not

only would conversion have been an unnecessary remedy but the common law of larceny would have been different and the statutory offence of larceny as a bailee need never have been created. He found himself persuaded by the views of Wright J that if:328 … a person with a right to possession of a thing, though without possession, can always maintain trespass, … [then] the gist of the action of trespass must be the wrong to the right to possession. But it is difficult to see how there can be a forcible and immediate injury vi et armis to a mere legal right; and there are some parts of the law of trespass and theft which are inexplicable on such a view.

And he endorsed as accurate the statement of Wright J that a right to possession will justify an action in trespass only when it is exercised to protect another’s possession.329 This will occur when the person whose actual possession is violated held as agent, servant or bailee under a revocable bailment. Where these conditions [page 99] are satisfied, a bailor may retain, concurrently with the bailee, the right to sue for trespass any stranger who has wrongfully violated the bailee’s own possession. Want of possession precluded success in the following cases: against a police commissioner who, while in possession of the certificate of character of the plaintiff, wrote across it ‘Dismissed the police service’;330 by the assignees of a bankrupt against a sheriff who seized goods when unaware of a secret act of bankruptcy by the bankrupt.331 For the same reason a person who had conveyed away by bill of sale his interest in a ship was held to have parted with that interest and could not successfully maintain an action for trespass to the ship;332 nor could telephone subscribers maintain an action in trespass against the police for tapping their telephone lines.

4.50 There are two333 apparent exceptions to the rule that possession is essential: (i)

In White v Morris334 it was held that, where goods were assigned as security for a loan upon trust to permit the assignor to remain in possession until default in repayment, the assignee could sue in trespass while the goods were still in the assignor’s possession. It may

be assumed, despite lack of authority for such a general proposition, that all trustees may sue for trespass to goods in the hands of beneficiaries on the basis of shared possession.335 (ii)

The title of executors or administrators relates back to the death of the deceased, and this entitles them to sue for a trespass committed between the date of the death and that of the grant.336

4.51 If a person has possession, the fact that a third party is entitled to immediate possession does not prevent the former from suing another who interferes with the chattel.337 Nor may the defendant plead by way of defence that true title lies in a third party (the jus tertii). This rule protects even a wrongdoer, that is, a person who is in actual or constructive, albeit wrongful, possession of a chattel; it also demonstrates the strength of the principle that a possessor has good title against all strangers. This is subject to the exception that if the person entitled to possession has authorised or adopted the act of the defendant, the latter may successfully plead the jus tertii. Similarly, the jus tertii can be pleaded where the defendant defends the action on behalf of and by the authority of the person rightfully entitled to possession of the goods.338 There is some authority that, where the plaintiff is not in actual or constructive possession of the goods but is relying on a mere right to possession, the jus tertii is available to the defendant trespasser339 but this can only be correct if such a plaintiff is able to sue in trespass, which is doubtful. [page 100]

Damages Measure 4.52 The plaintiff deprived of goods is entitled to their value by way of damages. This rule applies to suits by bailees against third parties, but when the assignee under a bill of sale wrongfully seized from the assignor goods comprised in the bill, the damages awarded to the assignor were limited to the value of his interest in them.340 As this case shows, where the defendant

has only a limited interest in the goods, the plaintiff (as in conversion) will not receive the full value of the goods by way of damages. Thus, where a hire-purchase seller, in breach of certain provisions of the relevant hirepurchase legislation, repossessed a trailer and resold it to a third party, the measure of damages in trespass was held to be the market value of the trailer less any amount still to be paid under the agreement.341 General damages for loss of use of the goods (as distinct from special damages for loss of profits from the goods) are also recoverable irrespective of whether the plaintiff would actually have used them during the period within which he or she was deprived of their use.342

Trespass ab initio 4.53 Where any person having by authority of law343 entered on land or seized goods, or arrested a person, subsequently commits a trespass, the original act will in certain circumstances itself be deemed to be a trespass for which damages will lie.344 For this rule of trespass ab initio to apply, the original act must be sufficiently direct to be trespassory.345 If the original act never was lawful346 or if it can still be justified on some ground independent of the subsequent abuse, the rule does not apply. Consequently, in Elias v Pasmore347 police officers who entered premises in the course of executing a warrant of arrest and in addition to making the arrest seized documents, some but not all of which were relevant in subsequent criminal proceedings, were not trespassers ab initio in respect of the premises. In Chic Fashions (West Wales) Ltd v Jones348 the English Court of Appeal doubted whether seizure on premises of goods would make police entry onto the premises wrongful ab initio. [page 101] The doctrine has little practical relevance today. Its importance is mainly limited349 to the fact that, presumably, damages may be assessed on the basis that the defendant’s entire conduct and not only that subsequent to the wrongful act is tortious.350

Detinue 4.54 Wrongful detention of a chattel for which a demand for return has been made by the person with a right to immediate possession will constitute the tort of detinue. The action in detinue to recover goods wrongfully detained may be traced back to the twelfth century351 and so can justly claim to be one of the oldest available remedies at common law. In 1977 it was abolished in England as a tort by the Torts (Interference with Goods) Act, but in Australia and New Zealand detinue remains available as one of the remedies for wrongful dispossession of goods.

Demand and detention 4.55 The plaintiff must ordinarily prove that the defendant wrongfully and unequivocally failed or refused to comply with a demand for return of the chattel352 and it is this feature that distinguishes the tort of detinue from that of conversion: the defendant who complies with the demand commits no tort. In Lloyd v Osborne353 the demand was contained in a solicitor’s letter and stated that the solicitor had been instructed by his client ‘to demand that you will at once deliver to her or to her agent all sheep branded X or FG (tar brand) which you unlawfully withhold from her …’. The court held354 that the demand was not sufficient as it did not say where the sheep were to be delivered nor did it identify the agent. Consequently, the defendant was entitled to ignore the demand without it being construed as a refusal which would found an action in detinue. Similarly, where the demand was not merely a demand for delivery simpliciter, but instructed the defendant to deliver the chattel to one of three named addresses (although no contractual obligation existed so to do) there was held to be an insufficient demand for purposes of filing a claim in detinue.355 The demand need not be in writing; an oral demand will suffice.356 And there is some authority for the proposition that a formal demand need not be made [page 102]

‘where the defence of a defendant shows clearly that if a demand had been made on him for possession of the property, he would have refused delivery’.357

4.56 Where the defendant is disabled from delivery through destruction or loss of the goods which reasonable care and skill on his or her part could not avoid, the action in detinue will fail. The High Court has qualified this by holding that:358 … where the defendant in detinue had at one time possession of the plaintiff’s goods, under such circumstances that he was bound to return them on demand, he cannot defend an action of detinue by pleading that in consequence of something amounting to a default on his part, as between him and the plaintiff, he, the defendant, has no longer possession of the goods, and, consequently, cannot comply with the demand.359

The defendants in this case had entered into a contract with the plaintiffs to carry goods by rail and upon arrival to redeliver the goods to the plaintiffs’ order. The goods were safely carried by the defendants to their initial destination, but after discharge from the trucks all the goods were removed by or delivered to persons, none of whom was the owner or authorised by the owner to receive them. Since the defendants could not prove that they had parted with possession of the goods without default or breach of duty360 it was held that an action in detinue would lie. In such cases, the onus of proving that the loss of the goods had occurred without default on their part clearly rests with the defendant.361

4.57 It is no defence in an action for detinue to assert that the goods have been handed over to a third party, who might be the true owner, nor that, as between the plaintiff and the third party, the latter had a contractual right to possession of the goods.362 Nor, it seems, can a bailee of goods plead the jus tertii without defending the continued possession of the goods ‘upon the right and title and by the authority of the tertius from whom he himself obtained the property in the [goods]’.363 The refusal to return the goods to the plaintiff must be unqualified; it will not be unqualified where the refusal stems from the defendant’s reasonable concern to check out the credentials of the plaintiff prior to handing the goods over.364 There is some authority for the proposition that a mere failure on the part of a defendant who has received a demand for return of the goods to reply to that demand will not be construed by the courts as a refusal, at least in the absence of any legal obligation

[page 103] to reply.365 This approach should be compared to that of the Supreme Court of New South Wales in Lloyd v Osborne366 where it was held that ‘under certain circumstances, that is to say if the demand was sufficient, taking no notice of it might be equivalent to a refusal’.

Interest of the plaintiff 4.58 The plaintiff suing in detinue for recovery of goods need only prove an immediate right to possession of the goods. Ownership is irrelevant;367 accordingly, Young CJ in Bolwell Fibreglass Pty Ltd v Foley368 regarded it as unnecessary to determine in whom the property in a yacht resided at the time of the alleged detention, since the action of detinue is an action complaining of interference with the immediate right to possession,369 not with the title to property. Similarly, in Premier Group Pty Ltd v Followmont Transport Pty Ltd370 a bailee of goods was held entitled to maintain an action in detinue against its sub-bailee. The plaintiff who wishes to sue in detinue for recovery of a commodity such as grain or barley, where that grain or barley forms part of a larger amount of the same, will be unable to establish a right of possession unless it has been appropriated and separated from the larger amount or unless the circumstances are such that estoppel will operate.371

When to choose detinue 4.59 Often the same factual situation will give rise to an action in detinue and one for breach of contract.372 If the defendant is a minor it may be necessary to rely on detinue,373 but in other situations where there has been a breach of contract, the plaintiff may properly treat the breach as bringing the contract to an end. The plaintiff may then choose to sue for damages for breach of contract or for detinue. The plaintiff’s choice of remedy will hinge upon factors such as the relative amounts of the damages, the difficulty of proving the essential elements of each action, or the general availability of the remedies.374

[page 104] Wherever detinue lies, so normally does conversion.375 The scope of conversion when based on demand and refusal is probably narrower than that in detinue. In neither tort is it a defence that the defendant had wrongfully and intentionally parted with possession before the demand and refusal.376 However, unlike conversion (see 4.32), an action in detinue will lie for mere loss of the chattel unless the defendant is able to disprove negligence.377

4.60 The plaintiff who seeks return of the goods, and not merely damages, must sue in detinue alone, because in conversion alone, or upon a claim of both conversion and detinue, the defendant has the option of keeping the goods and paying damages.378 This ability of the plaintiff in detinue to recover the goods themselves has been attributed379 to the fact that the action of detinue is essentially a proprietary action which alone enables recovery of irreplaceable goods.380 The availability of detinue primarily as an action for recovery of the goods is demonstrated by the fact that the defendant cannot pay into court in satisfaction of the claim because this would deprive the plaintiff of the right to ask for specific restitution.381 In addition, the forms of judgment which the plaintiff can seek in an action for detinue382 also reflect the fact that detinue is essentially an action for recovery of the goods: the plaintiff may ask the court for the value of the chattel as assessed and damages for its detention;383 alternatively, return of the chattel or recovery of its value as assessed plus damages for its detention;384 or simply return of the chattel plus damages for its detention. The court need not accede to a request for specific restitution. In Australia, various Supreme Court Rules allow the courts to order return of the chattel without affording the defendant the option of retaining it [page 105] upon paying the value assessed.385 An order in these terms is, however, unusual and the courts have recognised that they ought not to exercise their discretion in this way ‘when the chattel is an ordinary article of commerce and not of special value or interest, and not alleged to be of any special value

to the plaintiff, and where damages would fully compensate’.386

4.61 There are many situations where detinue is not a real or viable alternative to conversion. Where the plaintiff has the choice it may be wiser to establish conversion if the goods have declined in value, for in that event the courts apply to detinue the same rule which they apply to conversion upon a subsequent rise in value. In Williams v Peel River Land and Mineral Co Ltd,387 the defendant was sued in detinue for failure to return stock. The defendant subsequently returned the stock before trial but after the issue of the writ. By then (the date of return) the stock had declined in value. Satisfied that the plaintiff might have sold meanwhile, the court held that the plaintiff could recover, not the difference between the price as of the date of demand and refusal and the date of return, but a reasonable pecuniary estimate of the loss of opportunity of selling during that period. By contrast, had he sued in conversion the plaintiff could have recovered the value as at the date of the refusal to return. The Williams decision suggests yet another possible advantage of suing in conversion. Where, as there, the shares first rose in value after refusal and then declined, it is doubtful if in detinue any higher intermediate value could be recovered;388 it has been seen that values higher than those as of the date of conversion are recoverable in conversion: see 4.40.

Period of limitations 4.62 In detinue, unlike conversion, time does not begin to run until demand and refusal have established an unlawful keeping.389 This does not necessarily imply that, in cases where the same facts give rise to causes of action in detinue, conversion and/or breach of contract, an action in detinue will always be available. This is due to the fact that the general rule at common law stipulated that ‘where there has once been a complete cause of action arising out of contract or tort, the statute [of limitations] begins to run, and subsequent circumstances which would but for the prior wrongful act or default have constituted a cause of action are disregarded’.390 The constraints implicit in this general rule were tempered by the exception that ‘where a bailee for safe custody has converted the goods, the bailor may demand their return and sue in detinue upon the bailee’s breach of duty

[page 106] to deliver, although his remedy in trover is barred by statute’.391 Nor at common law did a bailee’s conversion of itself accelerate his or her duty to redeliver the chattel392 which means that a later act of detinue could be established by the bailor subsequently demanding and being refused return of the goods. These common law rules have been supplanted by legislation regulating successive wrongs to goods in all jurisdictions other than South Australia, under which the limitation period starts to run from the first wrongful act in relation to the goods, regardless of whether a further right of action has arisen subsequently.393 The limitation statute in South Australia does not contain any provisions relating to successive acts of conversion and/or detinue, and the common law remains intact.

Damages 4.63 The plaintiff in detinue is entitled to the value of the goods at the date of trial.394 This measure of damages stems from the fact that ‘the tort of detinue is not complete until the defendant fails to deliver up the chattels at the time of judgment’.395 Thus in Rosenthal v Alderton and Sons Ltd396 the plaintiff was entitled to the subsequent increase in value after the defendant failed to comply with his demand to return the goods. By comparison, the only increase in value after a conversion which can be claimed in conversion is that which occurs before the plaintiff ought to have discovered the conversion and mitigated it by buying a replacement.397 Where the increase in value at the date of the trial results from improvements made to the chattel by the defendant then, in detinue (as in conversion)398 innocent defendants will be recompensed for the value of work done to the chattel which they are now ordered to return.399 On the other hand, a defendant who was sued in detinue for wilfully detaining the plaintiff’s timber was not allowed to deduct his costs of transportation [page 107] to market,400 and, further, in the analogous action of replevin a wilful

converter was allowed no deduction for his improvements.401

4.64 Another difference between the measure of damages in conversion and detinue arises from the fact that, in detinue, the plaintiff is entitled not only to the value of the goods at the date of trial, but also to damages for detention of the chattel. This is illustrated by Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd 402 where the plaintiffs, in the course of their business, hired some switchboards to the defendants. In the subsequent action in detinue, the court ordered not only the return of the goods but also damages on the basis of a reasonable hiring charge for the entire period of detention until judgment. Nor were the damages limited to the plaintiff’s loss of profit; moreover, the fact that for some of the period of detention the plaintiff would not have been able to find another hirer was irrelevant. Denning LJ explained this403 on the basis that a wrongdoer who had made use of the goods for his or her own purposes must pay a reasonable hire for them, irrespective of whether the owner in fact suffered a loss. Had the wrongdoer sought permission to use the goods for that period, he or she would have had to pay for the entire period of hire; consequently the wrongdoer could not be put into a better financial position simply because no permission was actually asked.404 In conversion no damages for loss of use could have been awarded for the period after the demand and refusal; the plaintiff would merely have obtained interest. In detinue, the plaintiff would recover not only the value at the time of judgment, but also damages for any depreciation between refusal and judgment.405 Moreover, Egan v State Transport Authority 406 and Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd 407 are authority for the proposition that exemplary damages are available in an action in detinue where the circumstances warrant it.408

Residual Torts: The Action on the Case 4.65 There are many circumstances where the violation of interests in chattels is not protected by trespass, conversion or detinue or even the tort of negligence. The action analogous to the old action on the case has proved very fruitful in filling these gaps; and what now follows is to be treated as

illustrative of this wider right of action [page 108] and not as exhaustively defining the circumstances in which it may be held available in the future. Trespass and conversion are especially restrictive in that they are not available to a plaintiff who neither possesses nor has an immediate right to possess the goods. By comparison, the leading case of Mears v London and Southwestern Ry Co 409 has firmly established that if goods are destroyed or damaged, the owner may sue in case without having possession or an immediate right to possess. Similarly, Dixon J in Penfolds Wines Pty Ltd v Elliott described the action on the case410 as a ‘special action on the case’ which does not depend upon the plaintiff having the immediate right to possession. While the action is usually brought by an owner whose right to possession has been suspended, the rule benefits others, including a bailor, a purchaser where the vendor has a lien for unpaid purchase money, and a mortgagee. The plaintiff must prove damage to his or her interest; taking the goods from the possessor without affecting title is insufficient. A further requirement is that the damage to the chattel must be permanent in nature.411 Credit agreements present interesting problems in this respect. If a car which is the subject of a credit agreement is seriously damaged, can the owner sue in case? This question was answered in the affirmative by the Supreme Court of Victoria,412 even though the owner was entitled to insist on the hirepurchaser making good the damage. Another problem occurs where the hirer exercises an option to buy; in this event, what does the owner lose? And yet, if (as is likely in such an event) the hirer does not exercise this option, the owner is left without an effective remedy other than in case. It seems that, at least until the hirer opts to buy, the owner is to be regarded as a reversioner and can sue in case. Presumably the act complained of must be wrongful in the sense that it is one which, had the plaintiff had possession or the immediate right to possession, would have grounded a suit in trespass or conversion. So, where

the employer of the plaintiff, a conductor of a public transport vehicle, endorsed on the plaintiff’s licence (which was in the employer’s possession) ‘discharged for being 1s 4d short’, he was liable in case for defacing it.413 It will be recalled that a bailee disregarding the terms of the bailment may sometimes be liable in case, though not in conversion (see 4.22) and that to deny plaintiffs access to their goods or to interfere with their freedom of using them is also actionable on the case. Further, to place baited traps on one’s land near the highway so as to attract dogs into the traps, and in consequence of which dogs are so trapped, is a tort of this category.414 [page 109]

4.66 There are, however, limits to the interests in chattels which the law of torts will protect. Rejecting the claim in tort of an underwriter of a ship which had collided with another ship in the same ownership, the House of Lords held415 that persons with no proprietary right, either immediate or reversionary, and no possessory right attaching by contract to the chattel itself have no action in tort. Further, it is to no avail to claim that by contract to the owner of the negligently damaged chattel they have bound themselves to obligations which are rendered more onerous, or have secured to themselves advantages which are rendered less beneficial, by the damage done to the chattel.416 _______________ 1.

‘Observations on Trover and Conversion’ (1905) 21 LQR 43.

2.

For the historical development of detinue and conversion and the interplay between the historic chattel torts, see Holdsworth, History of English Law, Vol III, pp 350–1 and Vol VII, pp 401–15; Ames, Select Essays in Anglo-American Legal History, 1907, Vol III, pp 417–45; Milsom, ‘Not Doing is No Trespass’ (1954) Camb LJ 105; Simpson, ‘The Introduction of the Action on the Case for Conversion’ (1959) 75 LQR 364.

3.

See Alexander v Southey (1821) 5 B & Ald 247.

4.

Bushel v Miller (1718) 1 Stra 128; Fouldes v Willoughby (1841) 8 M & W 540.

5.

18th Report, Conversion and Detinue, Cmnd 4774 (1971).

6.

For a criticism, see Sacks, ‘Torts (Interference with Goods) Act 1977’ (1978) 41 MLR 713.

7.

Section 2(1). The collective description of ‘wrongful interference with goods’ was introduced to cover conversion, trespass to goods, negligence and any other torts so far as they result in damage to goods or to an interest in goods: s 1. This was done to facilitate common treatment

with respect to remedies and procedure. Trespass to goods and conversion are neither replaced nor defined. A few substantive changes are made. New provisions enable a bailee to dispose of uncollected goods: ss 12, 13 and Sch 1. Conversion is expanded (s 2(2)) to include a form of wrong (wrongful loss or destruction by default of a bailee) which gave rise to an action for detinue at common law but did not formally constitute conversion. Conversion and detinue are thereby merged. See discussion in Schwarzschild v Harrods Ltd [2008] EWHC 521 (QB) at [18ff] per Eady J. 8.

Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 (CA).

9.

For a typical illustration of how conversion is linked with problems of title under the law of personal property, see Jerome v Bentley [1952] 2 All ER 114. The tort appears to be actionable without proof of special damage: Hiort v London and Northwestern Ry Co (1879) 4 Ex D 188.

10.

As to the distinction between possession and custody, see Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360.

11.

Gordon v Harper (1796) 7 Term Rep 9; Farrant v Thompson (1822) 5 B & Ald 826; Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; [1946] ALR 517. There is some authority that an equitable title is no disqualification where the person entitled has a right to possess (International Factors Ltd v Rodriguez [1979] QB 351; 1 All ER 17 (CA); Campbell v Dominion Breweries Ltd [1994] 3 NZLR 559) but these decisions have been criticised by Watts, ‘The Tort of Conversion and Equity’s Rules Against Merger: Campbell v Dominion Breweries Ltd’ (1994) NZ Recent Law Review 336.

12.

Armory v Delamirie (1722) 1 Stra 505.

13.

(1961) 106 CLR 477.

14.

See also Roberts v Wyatt (1810) 2 Taunt 268.

15.

[1902] P 42. Here the Postmaster-General as bailee could recover the full value of mails lost through the wrongdoing of the defendant.

16.

Costello v Chief Constable of Derbyshire Constabulary [2001] 3 All ER 150. As the court noted at [31], neither natural moral disinclination nor public policy affords a sufficient ground to deprive such a possessor of this right.

17.

The Winkfield [1902] P 42 at 60; Goodwin v Ron Heath Tyre Service (SA) Pty Ltd (1999) 74 SASR 508 at [83]ff.

18.

As the bailment can be terminated at will, the owner retains the right to demand the goods back instantly, that is, the right to immediate possession: Nicholls v Bastard (1835) 2 Cr M & R 659; Kahler v Midland Bank Ltd [1950] AC 24 at 56; [1949] 2 All ER 621 at 641 per Lord Radcliffe. Accordingly, per Green CJ in Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports 80-295 at 69,203, the bailor’s possessory title in such a case is not extinguished by the transfer of possession.

19.

(1885) 11 VLR 107; see also Glen v Abbott (1880) 6 VLR (L) 483; Short v City Bank Ltd (1912) 15 CLR 148.

20.

As to whether employees who have custody or charge of goods have possession, see Burnett v Randwick City Council [2006] NSWCA 196 and authorities cited therein.

21.

(1849) 4 Exch 339.

22.

Palmer, Bailment, 2nd ed, 1991, p 210.

23.

Bryant v Wardell (1848) 2 Exch 479 at 482.

24.

Cooper v Willomatt (1845) 1 CB 672; of course, at the conclusion of the purported act of sale the bailee’s interest is forfeited and the bailor is entitled to immediate possession, but if the sale is one of those, eg, in market overt, which passes a title to a third party at what moment of time can the bailor be said to have immediate right to possess and thus a right to sue the bailee in conversion?

25.

Plasycoed Collieries Co Ltd v Partridge, Jones and Co Ltd [1912] 2 KB 345 at 351 per Hamilton J; but not presumably a mere excess of permitted user.

26.

(1946) 74 CLR 204 at 227.

27.

Standard practice in hire-purchase agreements, by express terms, is to make the benefits of the hirer’s option to purchase unassignable: Helstan Securities Ltd v Hertfordshire County Council [1978] 3 All ER 262.

28.

A helpful discussion of this question may be found in Sappideen, Vines, Grant and Watson, Torts: Commentary and Materials,10th ed, 2009, 5.65–5.75.

29.

Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 at 391 per Bridge LJ (CA) (damages recovered from auctioneer who sold car on instructions of a hire-purchaser; the contract provided that a sale would breach the agreement, in which event the owner could terminate by forwarding a notice of default to the hirer’s last known address and by taking action immediately to repossess the vehicle); The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400 (CA).

30.

In so holding the Court of Appeal purported to be following North Central Wagon & Finance Co Ltd v Graham [1950] 1 All ER 780. But might the judgment of Asquith LJ at 784 be differently interpreted? See Reliance Car Facilities Ltd v Roding Motors [1952] 2 QB 844; 1 All ER l (CA).

31.

[1948] VLR 344.

32.

Ibid at 347 per Lowe J.

33.

(1969) 121 CLR 562.

34.

Contrary to the approach of the NSW Court of Appeal in Andrews v The Nominal Defendant (1968) 70 SR (NSW) 419.

35.

(1969) 121 CLR 562 at 567. Distinguished in Hill v Reglon Pty Ltd [2007] NSWCA 295 at [56] on the basis that these comments were directed to the construction of the term ‘owner’ in the relevant legislation.

36.

(1979) 21 SASR 142.

37.

A lien being a right to retain possession of a chattel until a debt is paid. See Mulliner v Florence (1878) 3 QBD 484 at 488–91.

38.

In Lord v Price (1874) LR 9 Exch 54, the buyer of goods in possession of the seller who has a lien for the price could not sue a third party. Is it desirable to prevent the owner from suing a third party if a carrier has a lien?

39.

Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447.

40.

(1878) 3 QBD 484.

41.

[1984] VR 97.

42.

(1866) LR 1 QB 585. A mere equitable pledge may be sufficient: Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258. Cf the position of a debenture holder: Campbell v

Dominion Breweries Ltd [1994] 3 NZLR 559 (and fn 11 above). 43.

Halliday v Holgate (1868) LR 3 Exch 299. Cf Bradley v Copley (1845) 1 CB 685. The assignee of a bill of sale which authorises the borrower to remain in possession of the goods cannot sue in conversion for a wrongful seizure of the goods by a sheriff, because, until the assignee has demanded payment and been refused, or the borrower has otherwise defaulted in payment, the former has no immediate right to possession.

44.

See Empresa Exportadora de Azucar v IANSA [1983] 2 Lloyd’s Rep 171 (CA). As to the effect of ‘Romalpa clauses’ in contracts of sale, see Associated Alloys Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588; 171 ALR 568 at [13]; [60]–[69]; Barrymores Pty Ltd v Harris Scarfe Ltd (2001) 25 WAR 187 at [94]–[95].

45.

(1825) 4 B & C 941.

46.

(1860) 5 H & N 288.

47.

(1968) 121 CLR 584.

48.

[1955] 1 All ER 108. But see Buckley LJ in International Factors Ltd v Rodriguez [1979] QB 351 at 360; 1 All ER 17 at 22 (CA).

49.

Cf trespass to land, 5.11ff.

50.

(1855) 11 Exch 70 at 73 per Martin B.

51.

(1722) 1 Stra 505.

52.

[1982] QB 1004 at 1017; 1 All ER 834 at 843 per Donaldson LJ (CA).

53.

The finder of a protected animal under the Nature Conservation Act 1992 (Qld), not in receipt of a valid licence to keep it, has no title to sue in trespass: Candy v Thompson [2005] QCA 382.

54.

Roberts, ‘More Lost Than Found’ (1982) 45 MLR 683, especially at 686–8.

55.

South Staffordshire Water Co v Sharman [1896] 2 QB 44; see also Waverley Borough Council v Fletcher [1995] 3 WLR 772; 4 All ER 756 (CA).

56.

Elwes v Brigg Gas Co (1886) 33 Ch D 562.

57.

[1982] QB 1004; 1 All ER 834 (CA).

58.

(1851) 21 LJQB 75.

59.

Hannah v Peel [1945] KB 509; 2 All ER 288.

60.

London Corporation v Appleyard [1963] 2 All ER 834.

61.

Willey v Synan (1937) 57 CLR 200.

62.

Byrne v Hoare [1965] Qd R 135 at 149.

63.

This reform aims to avoid multiplicity of actions by allowing interested third parties to apply to be joined in actions: to protect defendants against the risk of being liable to two different claimants in respect of the same interference; and to limit the plaintiff’s damages to actual loss.

64.

Pollock and Wright, Essay on Possession in the Common Law, 1888, p 91.

65.

Armory v Delamirie (1722) 1 Stra 505. Although the court did not make any clear statements on the jus tertii rule, it may be inferred from the facts that the defence that the boy was not the owner of the jewel was a bad one; indeed it was assumed to be so by the Court of Appeal in The Winkfield [1902] P 42 at 55. See also Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447 at 451.

66.

The Winkfield [1902] P 42 at 54 per Collins MR.

67.

See, eg, The Jupiter (No 3) [1927] P 122 at 137; 250 at 254; Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52 at [215] per EM Heenan J.

68.

Leake v Loveday (1842) 4 Man & G 972; 134 ER 399; Butler v Hobson (1838) 4 Bing NC 290; 132 ER 800; Edwards v Amos (1945) 62 WN (NSW) 204.

69.

Pollock and Wright, Essay on Possession in the Common Law, 1888, pp 91–2. Cf Holdsworth, A History of English Law, Vol VII, 1925, pp 424–30.

70.

Criticised by Atiyah, ‘A Re-examination of the Jus Tertii in Conversion’ (1955) 18 MLR 97; and see reply by Jolly, ‘The Jus Tertii and the Third Man’ (1955) 18 MLR 371.

71.

Ross v Edwards (1895) 73 LT 100 — the delivery of the goods subject to the bailment creates an implied promise of redelivery and the bailee, having acknowledged holding on the bailor’s account, cannot later refute this acknowledgment. In England, the Torts (Interference with Goods) Act 1977, read in conjunction with RSC O 15 rr 10A and 11A, abolishes the principle that a bailee is estopped from denying the bailor’s title: the bailee when sued by the bailor can now have a named third party joined in.

72.

(1945) 62 WN (NSW) 204 at 206; cf Esanda Finance Ltd v Gibbons [1999] NSWSC 1094 at [23] per Austin J who described the principles underlying the jus tertii as a series of propositions which relate to a fundamental concern for fairness.

73.

Elkin & Co Pty Ltd v Specialised Television Installation Pty Ltd (1960) 77 WN (NSW) 844 at 849 per Walsh J.

74.

Matthews v Eastley [1998] NSWSC 11 (here the goods in question were tree prunings).

75.

(1908) 6 CLR 406 at 417 per Higgins J.

76.

Per Griffiths CJ at 414, with whom Barton J agreed. The plaintiff was accordingly entitled to an order for recovery of the body.

77.

Roche v Douglas (2000) 22 WAR 331 at [23]–[24] — human tissue specimens retained by a laboratory held to be property, thus enabling an order to be made for their use in DNA testing; similarly, Pecar v National Australia Trustees Ltd (unreported, NSWSC 27 November 1996); Calma v Sesar (1992) 106 FLR 446 at 450 (executor’s rights to possession of corpse).

78.

Dobsons v North Tyneside Health Authority [1997] 1 WLR 596 at 600 (rights of administratrix to brain removed during post mortem examination); R v Kelly; R v Lindsay [1999] QB 621 (preserved body parts used in training of surgeons); AB v Leeds Teaching Hospital NHS Trust [2003] EWHC 1034 (QB) at [148] per Gage J.

79.

The use of human organs and tissue is now largely regulated by statute; ACT: Transplantation and Anatomy Act 1978; NSW: Human Tissue Act 1983; NT: Human Tissue Transplant Act 1979; Qld: Transplantation and Anatomy Act 1979; SA: Transplantation and Anatomy Act 1983; Tas: Human Tissue Act 1985; Vic: Human Tissue Act 1982; WA: Human Tissue and Transplant Act 1982.

80.

Yearworth v North Bristol NHS Trust [2010] QB 1; [2009] 2 All ER 986 at [45] (CA); Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207. Australian courts nonetheless remain bound by Doodeward’s case: Edwards; Re, Estate of Edwards [2011] NSWSC 478 at [79] per RA Hulme J; see, too, the note of caution in ‘Essentially Yours: The Protection of Human Genetic Information in Australia’ ALRC 96, 2003, Recommendation 20–1, which recommended that legislation should not be enacted to confer full proprietary rights in human genetic samples.

81.

Although no such action would lie at the behest of a forger of cheques: Koster’s Premier Pottery

Pty v The Bank of Adelaide (1981) 28 SASR 355 at 358. The same applies to a fraudulently altered cheque: Smith v Lloyds TSB Bank plc [2001] 1 All ER 424. 82.

Lloyds Bank v Chartered Bank of India, Australia and China [1929] 1 KB 40 at 55–6 per Scrutton LJ (CA). Australian cases dealing with the conversion of cheques include Associated Midland Corporation Ltd v The Bank of New South Wales (1984) 51 ALR 641; Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644; McClintock v Union Bank of Australia Ltd (1920) 20 SR (NSW) 494; Grantham Homes Pty Ltd v Interstate Permanent Building Society Ltd (1979) 37 FLR 191; Australian Guarantee Corp Ltd v Commissioners of the State Bank of Victoria (1989) Aust Torts Reports 80-229; ANZ Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407; Uniflex (Australia) Pty Ltd v Hanneybel [1999] WASC 75; Oris Funds Management Ltd v National Australia Bank Ltd [2003] VSC 315; and NIML Ltd v Man Financial Australia Ltd (2006) 15 VR 156 (CA).

83.

Foxeden Pty Ltd v IOOF Building Society Ltd [2003] VSC 356 at [324]–[327].

84.

Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 (NSWSC) at [119]ff; cf Kremen v Cohen F 3D 1024 (9th Cir 2003).

85.

Ferguson v Eakin [1997] NSWCA 106.

86.

Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209 at [184].

87.

OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545.

88.

For a trenchant criticism of this issue, see Green, ‘To Have and to Hold? Conversion and Intangible Property’ (2008) 71 MLR 114, but cf Douglas, ‘The Scope of Conversion: Property and Contract’ (2011) 74 MLR 329.

89.

[1900] 1 QB 270.

90.

Wills v Wells (1818) 2 Moore CP 247; Watson v McClean (1858) E B & E 78.

91.

M’Leod v M’Chie (1841) 2 Man & G 326.

92.

Gorman v H W Hodgetts & Co [1932] SASR 394; BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1991] 2 All ER 129 (PC).

93.

(1974) 8 SASR 164.

94.

Nevertheless, the recipient of stolen money who has been unjustly enriched at the expense of the true owner is obliged to pay an equivalent sum to the victim: Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548; [1992] 4 All ER 512 (HL); as to the position of a fiduciary who has mixed the funds held on trust with his own funds, see Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153; 4 All ER 335 at [135]–[141] per Lord Neuberger MR, with whom Richards and Hughes LJJ concurred.

95.

Orton v Butler (1822) 5 Barn & Ald 652 at 654. As to whether fungible (substitutable) goods may be converted, see Bis Cleanaway t/a CHEP v Tatale [2007] NSWSC 378 at [90] (action for delivery up of pallets).

96.

Burn v Morris (1834) 2 Cr M 579; Brambles Security Services Ltd v Bi-Lo Pty Ltd (1992) Aust Torts Reports 81-161 at 61,269–70.

97.

Taylor v Plumer (1815) 3 M & S 562.

98.

These rules are unaffected by the Torts (Interference with Goods) Act 1977 (Eng) which provides that unless the context otherwise requires ‘goods’ includes all chattels personal other than things in action and money: s 14(1).

99.

[1937] 2 KB 242 at 251; 2 All ER 837 at 841 (CA). Liability in this case was also held to be excluded by the conditions on the ticket.

100. Per Young J in Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244 at 62,520. 101. CHEP Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 at [181]. In assessing intention, the context of the act or dealing should be taken into account: Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 at [127] and [147] per Allsop P. 102. Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178 at 202; [1938] 4 All ER 389 at 404 per Lord Porter; Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738; [1966] 3 All ER 214 (ratio). 103. Fowler v Hollins (1872) LR 7 QB 616 at 639 per Cleasby B; aff’d sub nom Hollins v Fowler (1875) LR 7 HL 757; followed in Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 (CA) and RH Willis & Son v British Car Auctions Ltd [1978] 2 All ER 392 (CA); also Safari 4x4 Engineering Pty Ltd v Doncaster Motors Pty Ltd [2006] VSC 460 at [97]. 104. [1957] VR 604. Similarly, Chubb Cash Ltd v John Crilley & Son [1983] 2 All ER 294. 105. [1957] VR 604 at 612–13. 106. (1841) 8 M & W 540, where the defendant removed the plaintiff’s horses from a ferry boat onto the shore because he did not wish the plaintiff to travel on the boat. Held not to be conversion, because the very act of putting the horses ashore was tantamount to recognition of them as the property of the plaintiff. 107. Consolidated Co v Curtis & Son [1892] 1 QB 495. In Moorgate Mercantile Co Ltd v Finch [1962] 1 QB 701; 2 All ER 467 (CA), the borrower of a car had it confiscated upon conviction for carrying in it contraband watches. This was rightly held to be a conversion, for the confiscation was the result of his intentional act of carrying the watches in the car. 108. Joule Ltd v Poole (1924) 24 SR (NSW) 387 at 390 per Street ACJ. Similarly, a carrier who diverts the goods to his own use: Coastal Recycled Cooking Oils Pty Ltd v Innovate Business Action and Strategies Pty Ltd [2007] NSWSC 831. 109. A forcible entry is not a prerequisite: Kinarra Pty Ltd v Crawford [2006] VSC 309 at [85]. A bailee whose servant or agent steals the goods may be liable to the bailor in conversion: Rick Cobby Haulage Pty Ltd v Simsmetal Pty Ltd (1986) 43 SASR 533 (FC) (subcontractor to carrier absconded with the load). 110. Tinkler v Poole (1770) 5 Burr 2657; Burton v Hughes (1824) 2 Bing 173; Chubb Cash Ltd v John Crilley & Son [1983] 2 All ER 294. In Cuff v Broadlands Finance Ltd [1987] 1 NZLR 343 seizing goods to satisfy a debt other than those listed in the instrument by way of security was held to be conversion by taking. 111. Mills v Brooker [1919] 1 KB 555. 112. Fouldes v Willoughby (1841) 8 M & W 540 (defendant removed the plaintiff’s horses from a ferry boat onto the shore because he did not wish the plaintiff to travel in the boat). 113. Bushel v Miller (1718) 1 Stra 128. 114. (1816) 1 Stark 173; cf Sanderson v Marsden and Jones (1922) 10 Ll L Rep 467 (CA) (defendant removing timber from quay to his premises not a conversion). 115. Empresa Exportadora de Azucar v IANSA [1983] 2 Lloyd’s Rep 171 (CA); but see to the contrary 348238 Ontario Ltd v The Queen in the Right of Canada (1983) 8 DLR (4th) 676.

116. Grainger v Hill (1838) 4 Bing NC 212. 117. Accidental destruction is not conversion: Simmons v Lillystone (1853) 8 Exch 431. 118. Fouldes v Willoughby (1841) 8 M & W 540 at 549 per Alderson B. 119. Richardson v Atkinson (1723) 1 Stra 576. 120. Dictum of Parke B in Simmons v Lillystone (1853) 8 Exch 431 at 442. As to whether cutting pallets to facilitate storage is conversion, see Brambles Australia Ltd t/as CHEP Australia v Tatale Pty Ltd [2004] NSWCA 232. 121. Cf Hollins v Fowler (1875) LR 7 HL 757 at 764, 768 (dictum of Blackburn J that a miller innocently grinding another’s corn commits conversion). 122. Philpott v Kelley (1835) 3 Ad & El 106. 123. Rolle, Abridgement, title, Action sur Case, p 5. 124. [1967] NZLR 65 at 66 per McGregor J; Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244 at 62,520 per Young J (NSWSC); in Triffit v Dare and Bowater Tutt Industries Pty Ltd (No FCA 108/1992 Judgment No A109/1993) the Tasmanian Supreme Court emphasised the element of intention to deny the plaintiff’s right to possession and distinguished the decision in Schemmell v Pomeroy (1989) 50 SASR 450 where White J held that, although joy-riding would be a trespass, absent the intention of harming, abandoning or not returning the car, it would not amount to conversion. 125. Lancashire and Yorkshire Ry Co v MacNicoll (1918) 88 LJKB 601; similarly, taking custody of documents, copying, reading and noting their contents: White v Withers LLP [2009] EWCA Civ 1122 at [53] per Ward LJ. 126. Petre (Lord) v Heneage (1701) 12 Mod Rep 519 at 520 per Holt CJ. 127. (1591) Cro Eliz 219. 128. Morison v London County and Westminster Bank Ltd [1914] 3 KB 356 at 386 per Phillimore LJ (CA), obiter. Similarly Rendell v Associated Finance Pty Ltd [1957] VR 604 at 613 per Bryan J, delivering the view of the Full Court. 129. Knight v Wilson 1949 SLT (Sh Ct) 26. 130. Lee v Atkinson and Brooks (1609) Yelv 172 (when hirer of horse deviates action on case lies); approved in Donald v Suckling (1866) LR 1 QB 585 at 615 by Blackburn J who said that, if the act is repugnant to the bailment, it is conversion but ‘where the act though unauthorised is not so repugnant to the contract as to show a disclaimer’ it is case: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; Paton, Bailment, 1952, pp 149, 303–4, 370; Palmer, Bailment, 3rd ed, 2009, 21-073. 131. See, eg, Craig v Marsh (1935) 35 SR (NSW) 323 (defendant used as part of his business certain items left on the premises by the plaintiff when he vacated the premises). 132. (1935) 41 Arg LR 432. Similarly, Milk Bottles Recovery Ltd v Camillo [1948] VLR 344. In both these cases no actual damage to the bottles was proven; however, the court clearly regarded the risk of damage as sufficiently serious to be taken into account, particularly when viewed in conjunction with the degree of intermeddling. 133. (1935) 41 Arg LR 432 at 433 per Gavan Duffy J. 134. (1946) 74 CLR 204. 135. Paton and Sawer, ‘Ratio Decidendi and Obiter Dictum in Appellate Courts’ (1947) 63 LQR 461

at 469–70 discuss the difficulty of ascertaining the ratio decidendi. 136. (1946) 74 CLR 204 at 228–31. 137. Ibid at 219–20 and 240–4, respectively. Williams J noted that the loss of possession suffered by the plaintiff need not be permanent — duration was relevant to the measure of damages but made no difference to the nature of the wrongful act itself. 138. Ibid at 221 and 234–6 respectively. Starke J agreed with the statement of the law propounded by Dixon J. 139. Receipt by an involuntary bailee is not conversion. 140. Cf M’Combie v Davies (1805) 6 East 538 at 540 per Lord Ellenborough CJ: ‘Certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into effect?’ 141. Farrant v Thompson (1822) 5 B & A 826; 106 ER 1392; this is a consequence of the nemo dat quod non habet rule: Johnson v Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at [80]. 142. Fine Art Society v Union Bank of London (1886) 17 QBD 705; Underwood (AL) Ltd v Bank of Liverpool and Martins [1924] 1 KB 775 (CA); Lloyds Bank v Chartered Bank of lndia, Australia and China [1929] 1 KB 40 (CA); cf SP Hywood Pty Ltd v Standard Chartered Bank Ltd [1992] SASC 3764. 143. Hollins v Fowler (1875) LR 7 HL 757 at 767 per Blackburn J; cf Sheridan v New Quay Co (1858) 4 CB (NS) 618 (carrier). 144. King’s Norton Metal Co Ltd v Eldridge, Merrett & Co (1897) 14 TLR 98 (CA). 145. For example, Sale of Goods Act 1923 (NSW) s 26(1). 146. For example, Factors (Mercantile Agents) Act 1923 (NSW) s 5(1). 147. For example, Pearson v Rose and Young Ltd [1951] 1 KB 275; [1950] 2 All ER 1027 (CA). 148. And see Sale of Goods Act 1923 (NSW) s 28(1). 149. For example, Sale of Goods Act 1923 (NSW) s 28(2). And see Newtons of Wembley Ltd v Williams [1965] 1 QB 560; [1964] 3 All ER 532. 150. Sale of Goods Act 1896 (Tas) s 27(1); Sale of Goods Act 1895 (SA), s 22; Sale of Goods Act 1895 (WA) s 22. The judgment of Denning J in Bishopgate Motor Finance Co Ltd v Transport Brakes Ltd [1949] 1 KB 322 at 337–8; 1 All ER 37 at 46, 47 illustrates particularly the way in which, when there is a sale in market overt, the clash between the principle of protecting property and that of protecting commercial transactions is resolved in favour of the latter. 151. Lancashire Waggon Co v Fitzhugh (1861) 6 H & N 502. 152. Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 717 per Jordan CJ. As to whether entering into a licence agreement constitutes conversion, see Hill v Reglon Pty Ltd [2007] NSWCA 295; Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571 at [108]–[112] per R A Hulme J. 153. Citicorp Australia Ltd v BS Stillwell Ford Pty Ltd (1979) 21 SASR 142 (purported sale of motor vehicle by mortgagor to company carrying on business of trading in motor vehicles). 154. Parker v Godin (1728) 2 Stra 813. 155. (1791) 4 Term Rep 260. But if one entrusts the use of a chattel to another, the bailor impliedly authorises the bailee to allow a lien for the cost of the necessary repairs to be created over it: Green v All Motors Ltd [1917] 1 KB 625 (CA); Tappenden v Artus [1964] 2 QB 185; [1963] 3

All ER 213 (CA). 156. Winnifred Wai Yue Yu v Allan Ni Kwan Kwok [1999] NSWSC 992. 157. Citicorp Australia Ltd v BS Stillwell Ford Pty Ltd (1979) 21 SASR 142 at 145 per King CJ quoting with approval North General Wagon and Finance Co Ltd v Graham [1950] 1 All ER 780; Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385; Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 227 per Dixon J. 158. Consolidated Co v Curtis & Son [1892] 1 QB 495; Barker v Furlong [1891] 2 Ch 172 at 181; in Sachs v Miklos [1948] 2 KB 23; 1 All ER 67, Lord Goddard said about auctioneers that this ‘is one of the risks of their profession’. A similar comment was made about tow truck operators by Tipping J in Wilson v New Brighton Panelbeaters Ltd [1989] 1 NZLR 74 at 79. 159. (1875) LR 7 HL 757 at 766–7; in Re Samuel Trustee v Kerman [1945] Ch 408; 2 All ER 437n a solicitor who received jewellery from the agent of his bankrupt client and handed it to another agent on his client’s instructions knowing of the intention to sell it, was held to be acting ministerially and not liable in conversion. 160. Greenway v Fisher (1824) 1 C & P 190. 161. Sheridan v New Quay Co (1858) 4 CB (NS) 618. 162. Glyn Mills v E & W India Dock Co (1880) 6 QBD 475 at 491 per Bramwell B, aff’d (1882) 7 App Cas 591 (HL). Cf where a warehouser sold fertiliser stored in the warehouse to a third party without the authority of the bailor or his agent: Fertinova Australia Pty Ltd v FJ and WJ Transport Pty Ltd [1995] QCA 499. 163. (1881) 44 LT 767. 164. [1978] 2 All ER 392 (CA). Where the police seized a gig from A and, when he was later found not guilty of stealing it, after demand by the true owner for possession, handed it back to A, this was a conversion by the police actionable by the true owner: Winter v Bancks (1901) 84 LT 504. 165. Heugh v London and Northwestern Ry Co (1870) LR 5 Exch 51; cf Elvin and Powell Ltd v Plummer Roddis Ltd (1933) 50 TLR 158, where plaintiff’s counsel conceded that the defendant did not intend to deny the title of the plaintiff. 166. (1874) LR 9 Exch 86. 167. Contra, if as in Elvin and Powell v Plummer Rodis Ltd, above, the goods themselves had been delivered to the defendant who handed them to the third party. 168. (1973) 129 CLR 151. See comments by Burnett, ‘Conversion by Involuntary Bailees’ (1960) 76 LQR 364. 169. Cheques Act 1986 (Cth) s 98; see generally Greig and Gunningham, Commercial Law, 3rd ed, 1988, pp 395–9. Also, Westpac Banking Corp v Hughes [2012] 1 Qd R 581 (CA). 170. Youl v Harbottle (1791) Peake 68. A tow truck operator who delivered a car to a third party in the honest but mistaken belief that he was delivering to the owner was held liable in conversion on the basis that he had exercised dominion over the car in a manner inconsistent with the rights of the true owner: Wilson v New Brighton Panelbeaters Ltd [1989] 1 NZLR 74 at 80. 171. Devereux v Barclay (1819) 2 B & Ald 702. 172. If the carrier delivers in accordance with the seller’s instructions but makes delivery to a person to whom the seller did not intend delivery to be made, this is not a misdelivery: McKean v McIvor (1870) LR 6 Exch 36. It is conversion by a carrier to deliver goods to another carrier by whom they are misappropriated, unless the defendant carrier is authorised to make a subcontract:

Garnham, Harris and Elton v Alfred W Ellis (Transport) Ltd [1967] 2 All ER 940. 173. Owen v Lewyn (1672) 1 Vent 223; The Arpad [1934] P 189 at 232 (CA) per Maugham LJ. 174. Hollins v Fowler (1875) LR 7 HL 757 at 767 per Blackburn J. Otherwise the bailee would be in an impossible position, for if the goods are retained the bailee could not plead a title paramount of which he or she was unaware. 175. Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205. 176. Winter v Bancks (1901) 84 LT 504. 177. Eason v Newman (1596) Cro Eliz 495; Isaack v Clark (1615) 2 Bulst 306 at 310 per Dodderidge J; Baldwin v Cole (1704) 6 Mod Rep 212; Pratten v Pratten [2005] QCA 213, [60]–[61]. 178. Bristol and West of England Bank v Midland Ry Co [1891] 2 QB 653 (CA). 179. Craig v Marsh (1935) 35 SR (NSW) 323 at 326; and see Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244 at 62,520 (NSWSC) and cases cited therein; Tavoulareas v Lau [2007] EWCA Civ 474 at [34]ff; Spencer v Franses Ltd [2011] EWHC 1269 (QB) at [276ff]. 180. Alexander v Southey (1821) 5 B & Ald 247. 181. [1980] 2 All ER 579. No action was brought in detinue because of the abolition in England of that action by the Torts (Interference with Goods) Act 1977 s 2(1). 182. Seton, Laing, & Co v Lafone (1887) 19 QBD 68; Henderson & Co v Williams [1895] 1 QB 521 (CA). 183. Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97 at 111, 114 per Brooking J. 184. For example, Goods Act 1958 (Vic) s 54(3). 185. Wilde v Waters (1855) 24 LJ CP 193 at 195 per Maule J; British Economical Lamp Co Ltd v Empire Mile End Ltd (1913) 29 TLR 386. 186. Walker v Clyde (1861) 10 CB (NS) 381; HE Dibble Ltd v Moore [1970] 2 QB 181; [1969] 3 All ER 1465 (CA). 187. Howard E Perry and Co Ltd v British Railways Board [1980] 2 All ER 579 at 583 per Megarry VC; Bryanston Leasings Ltd v Principality Finance Ltd [1977] RTR 45. 188. England v Cowley (1873) LR 8 Exch 126 (landlord wishing to distrain stated that he would not permit holder of bill of sale to remove goods unless rent was paid). 189. Since this is clearly intended to deprive the owner of the goods: Prismex Technologies Pty Ltd v Keller Industries Pty Ltd [2006] FCA 1504 at [73]. 190. A bailee will ordinarily be liable unless he or she disproves fault: Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694; 2 All ER 159 (CA). 191. Howard v Harris (1884) 1 Cab & El 253. 192. AVX Ltd v EGM Solders Ltd, The Times, 7 July 1982. 193. See Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178; [1938] 4 All ER 389 (HL); infringement of copyright by reproduction alone is not conversion: Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 157 FCR 442; 238 ALR 534 (FC) at [86]. 194. This principle was well established at common law: see, eg, Jacobs v Seward (1872) LR 5 HL 464. It has also now been incorporated into the Torts (Interference with Goods) Act 1977 (Eng) s 10. In Coleman v Harvey [1989] 1 NZLR 723 at 730–1, Somers J decried as outdated the line of

authority supporting the proposition that, in the case of a sale by one co-owner, the remedy of the other does not lie in conversion. The sale of silver ingots by one co-owner without the other’s knowledge or consent was held to be a conversion. 195. Baker v Barclays Bank Ltd [1955] 2 All ER 571; similarly Reglon Pty Ltd v Hill [2006] NSWSC 1360: co-owner licensed a company of which he was sole director to use jointly owned equipment. 196. As, for instance, by cutting grass and making hay in the common field (Jacobs v Seward (1872) LR 5 HL 464); or extracting the oil and the other valuable parts of a dead whale which is owned in common: Fennings v Lord Grenville (1808) 1 Taunt 24. 197. The bailee of common property from one co-owner is not guilty of conversion if he or she refuses to deliver the property on the demand of the other co-owner (Atwood v Ernest (1853) 13 CB 881; Harper v Godsell (1870) LR 5 QB 422) unless the latter has a special property in the entire chattel: Nyberg v Handelaar [1892] 2 QB 202 (CA). 198. Morgan v Marquis (1854) 9 Ex 145; Baker v Barclays Bank Ltd [1955] 2 All ER 571. 199. (1876) 14 SCR (NSW) 352 at 355, 357. 200. (1973) 129 CLR 151. 201. Ibid at 172, approving Barnardiston v Chapman and Smith (1715) 4 East 121n; 102 ER 776n. 202. BBMB Finance Ltd v Eda Holdings Ltd [1991] 2 All ER 129 at 131 (PC) per Lord Templeman. 203. In England, the Torts (Interference with Goods) Act 1977 ss 7(2) and 8, read with the Rules of Court, allows the plaintiff with a limited interest to identify any other person whom he or she knows to have an interest in the goods and any such interested person may be joined, whereupon damages may be apportioned amongst the interested parties in proportion to their respective interests. 204. [1902] P 42. 205. Ibid at 60. 206. (1961) 106 CLR 477 at 491 per Windeyer J. 207. See also Johnson v Stear (1863) 15 CB (NS) 330 (owner suing pledgee); Belsize Motor Supply Co v Cox [1914] 1 KB 244 (owner suing assignee of hirer); and where a hirer of a car sold it in breach of the hire-purchase agreement the finance company owner of the car could recover from the eventual buyer only the outstanding hire-purchase debt, not the greater value of the car: Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 All ER 117 (CA). If the market value were less than the sum the plaintiffs had to pay to a third party under an assignment of the hire-purchase payments, only the market value is recoverable: Chubb Cash Ltd v John Crilley & Son [1983] 2 All ER 294. 208. Roberts v Roberts [1957] Tas SR 84. 209. Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447. 210. (1966) 114 CLR 185. 211. See discussion on general principles of damages in 27.2ff. 212. (1966) 114 CLR 185 at 191 per Taylor and Owen JJ. A similar approach was adopted in Kuwait Airways Corp v Iraqi Airways (Nos 4 & 5) [2002] AC 883 at 1090; also Malkins Nominees Ltd v Societe Financiere Mirelis SA [2004] EWHC 2631 (Ch) at [34]. Where the goods converted are photographs that would have been donated to a museum, it was suggested in Myer Stores Ltd v

Jovanovic [2004] VSC 478 at [36] that the ‘prestige’ value is the appropriate measure of damages. 213. (1860) 5 H & N 288 at 294. 214. As to whether conversion gives rise to a duty to mitigate, see Uzinterimpex JSC v Standard Bank Plc [2008] EWCA Civ 819 at [54ff]. 215. That is, from breach of contract to conversion. 216. Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184, especially at 191. Wickham J noted that this view of the interest of a hire-purchase seller and also the choice of the ‘payout figure’ has been sanctioned by authority: Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 All ER 117 (CA); and Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210; [1970] 3 All ER 664. Nevertheless, the hire-purchase seller may be awarded the actual value of the goods if this is less than the payout figure: Pacific Acceptance Corp Ltd v Mirror Motors Pty Ltd (1961) 61 SR (NSW) 548 at 549. See also Chubb Cash Ltd v John Crilley & Son [1983] 2 All ER 294 at 297. 217. Donnelly v Graves (1880) 6 VLR 247; Citicorp Australia Ltd v BS Stillwell Ford Pty Ltd (1979) 21 SASR 142. In the case of a converted pledge of goods the measure of damages is the difference between the amount of the debt secured together with the full allowance for all expenses in consequence of the conversion, and the sum actually received from the realisation of the goods: Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141 at 155 per Hutley JA (reversed on its facts on a subsequent appeal to the Privy Council [1984] 1 NSWLR 258). 218. Including where applicable, sales tax: Martin v London County Council [1947] KB 628. Where the plaintiff has no action in trespass to land but only one for conversion of fixtures, their market value is the value once severed: Ball-Guymer v Livantes (1990) 102 FLR 327 at 333 per Miles CJ (ACTSC). 219. ‘This is the general rule because generally this measure represents the amount of the basic loss suffered by the plaintiff’: per Lord Nicholls in Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883; 3 All ER 209 at [67]. Delivery up will therefore not be ordered if damages are adequate. The fact that the parties may have envisaged a private sale at a substantially higher price cannot alter the legal measure: Zabihi v Janzemini [2009] EWCA Civ 851 at [43]. 220. Sinclair v Haynes [2000] NSWSC 642 at [3] (horse float fitted out for use by a horse dentist). 221. Hall (JE) Ltd v Barclay [1937] 3 All ER 620 (CA); Furness v Adrium Industries Pty Ltd (1993) Aust Torts Reports 81-245 at 62,527 per Fullagar J, and see at 62,531–2 per Marks J (Vic App Div). 222. Jiwira v PIBA [2000] NSWSC 1094 at [256]. 223. Australian Development Corp v Allco Steel Corp [1999] NSWSC 736. 224. Phillip Charles Poat v Australian Guarantee Corp Ltd [1996] NTSC 1 at [12]–[14]. This may occur, eg, where the defendant has failed to adduce available evidence or where he or she has tampered with the goods after the conversion. 225. See, eg, Harrisons Group Holdings Ltd v Westpac Banking Corp (1989) 51 SASR 36 at 40, where the plaintiff was held entitled to recover as damages the value of the converted cheque ($175,000). In Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41 at 48, it was held, however, that payments to or for the benefit of the plaintiff made by the defendant especially if out of the proceeds of the conversion, might be taken into account in reduction of damages. On appeal it was held further that payments made ‘collaterally’ to the commission of

the tort will be disregarded: ANZ Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 at 411. 226. Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178; [1938] 4 All ER 389 (HL). 227. [1936] Ch 655; 2 All ER 71 (CA). 228. (1981) 37 ALR 190 (Fed Ct). 229. Pacific Acceptance Corp Ltd v Mirror Motors Pty Ltd (1961) 61 SR (NSW) 548; IBL Ltd v Coussens [1991] 2 All ER 133 at 143 (CA); BBMB Finance Ltd v Eda Holdings Ltd [1991] 2 All ER 129 at 131 (PC); Ricardo Pty Ltd v Toppi (No 2) [1998] NSWSC 576; Semenov v Pirvu [2011] VSC 605 at [19] per Dixon J. 230. Haddow v Duke Co (NL) (1892) 18 VLR 155 at 173 and 174; cited with approval in Ley v Lewis [1952] VLR 119 at 121 per O’Bryan and Dean JJ. 231. Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184 at 191 (FC). 232. Sachs v Miklos [1948] 2 KB 23; 1 All ER 67 (CA). There the claim was in detinue or conversion, but Whiteley v Hilt [1918] 2 KB 808 (CA) decided that for the purpose of damages a claim in detinue or conversion was to be treated as one in conversion alone. See also Amoretty v City of Melbourne Bank (1887) 13 VLR 431 at 433. On the duty to mitigate generally, see 27.19–27.21. 233. Rhodes v Moules [1895] 1 Ch 236; where the market price of shares dropped after conversion, the defendant was precluded from satisfying the judgment by purchasing the same number of shares for the plaintiff; Bennett v Goodwin [2005] NSWSC 390 at [12]. 234. [1938] AC 247; [1937] 4 All ER 328 (PC). As to damages in the absence of evidence as to the date of the wrongful sale of shares, see Grace v Sheehan [2011] IEHC 163. 235. Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178 at 203; [1938] 4 All ER 389 at 405 per Lord Porter (HL). 236. Sachs v Miklos [1948] 2 KB 23; 1 All ER 67 (CA). The court suggested that the increase in value should be calculated at the date on which the plaintiff knew of the conversion rather than the actual date of the conversion. Cf Amoretty v City of Melbourne Bank (1887) 13 VLR 431 in which the Supreme Court held that where an improper sale of shares had occurred, the plaintiff could take the value of the shares at the date of the writ as the measure of compensation. 237. Samuel and Escombe v Rowe (1892) 8 TLR 488. 238. Aitken v Gardiner (1956) 4 DLR (2d) 119 (Ont HC). 239. (1825) 1 C & P 625. Lord Porter left open the soundness of this judgment in Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178 at 203; [1938] 4 All ER 389 at 404 (HL). See also Graham v Voigt (1989) 89 ACTR 11 at 20 per Kelly J. 240. Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178; Greenwood v Bennett [1973] 1 QB 195; [1972] 3 All ER 586. 241. Reid v Fairbanks (1853) 13 CB 692 (the parties settled the size of the damages awarded). 242. Dean v J Thomas & Son [1981] Qd R 62 at 67. The court held that ‘both at law and in equity the respondent was entitled to be compensated for what it had outlaid’. In England the Torts (Interference with Goods) Act 1977 s 6(1) provides that if the defendant has improved goods in the mistaken but honest belief that he or she had a good title to them and thereafter converts them an allowance is made for the extent to which at the time at which the goods fall to be valued in assessing damages, the value of the goods is attributable to the improvement. Presumably an

improver who does not act in good faith is not entitled to such a deduction. 243. Chubb Cash Ltd v John Crilley & Son [1983] 2 All ER 294 at 299. In Haddow v Duke Co (NL) (1892) 18 VLR 155 Higinbotham CJ at 173 and Williams J at 174 both held that the measure of damages is the value of the property at the time of conversion, unless the party complaining can allege and prove special damages arising from the wrongful act. It is uncertain whether the court was allowing here for the possibility of special consequential damages, or whether it was merely alluding to the fact that the damages may be calculated at a date other than the date of conversion. 244. Bodley v Reynolds (1846) 8 QB 779. 245. Davis v Oswell (1837) 7 C & P 804. 246. Trafigura Beheer BV v Mediterranean Shipping Co SA [2007] ICLC 594. 247. Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246; 1 All ER 796 (CA); approved in Gaba Formwork Contractors Pty Ltd v Turner Corp Ltd (1991) 31 NSWLR 175, Giles J commenting that a degree of departure from the principle of compensatory damages is permissible in such circumstances. Also Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244 at 62,523 per Young J. Where a defendant converted a Rolls-Royce on hire from the plaintiffs and then put it out of his power to return it, he remained liable for the hiring charge until it was returned, namely over £13,000, although its value in conversion was only £7500: Hillesden Securities Ltd v Ryjack Ltd [1983] 2 All ER 184. 248. (1982) 31 SASR 481. 249. Ibid at 522ff. 250. Ibid at 521. 251. Ellis v John Stenning & Son [1932] 2 Ch 81. 252. See, eg, Tanks & Vessels Industries Ltd v Devon Cider Co Ltd [2009] EWHC 1360 (Ch) at [67]. 253. Re Simms; Ex parte Trustee [1934] Ch 1 (CA). 254. Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 at 255; 1 All ER 796 at 801 per Denning LJ (CA). 255. Re Simms; Ex parte Trustee [1934] Ch 1 at 30 per Romer LJ. 256. Devenish Nutrition Ltd v Sanofi-Aventis SA [2009] Ch 390; 3 All ER 27 at [38] per Arden LJ (CA). 257. Intellectual Property Development Corp Pty Ltd v Primary Distributors NZ Ltd [2010] 2 NZLR 729 at [81] (CA); Lahoud v Lahoud [2009] NSWSC 623 at [178ff] per Ward J. However, user damages are not merely nominal damages and may be recovered for loss of use of a non-profit earning chattel: Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2011] QB 357 at [33ff] per Sir Mark Potter P. 258. This loss was recovered in France v Gaudet (1871) LR 6 QB 199. 259. The Arpad [1934] P 189 (CA). Conversely, a buyer still recovers the market value from a seller who fails to deliver, although the loss of the buyer on the contract of resale is less than this sum: D Joseph Ltd v Ralph Wood & Co Ltd [1951] WN 224. 260. Exemplary damages are discussed in 27.10ff. 261. Dymocks Book Arcade Ltd v McCarthy [1966] 2 NSWR 411 at 414, approving The Mediana [1900] AC 113 at 118; also Owen & Smith v Reo Motors (Britain) Ltd (1934) 151 LT 274;

Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584, especially at 607 per Kitto J. 262. Rookes v Barnard [1964] AC 1129 at 1226–7; 1 All ER 367 at 410–11 per Lord Devlin. 263. Fisher v Prince (1762) 3 Burr 1363; Solloway v McLaughlin [1938] AC 247 at 258–9; [1937] 4 All ER 328 at 332, 333 (PC). 264. USA v Dollfus Mieg et Compagnie SA [1952] AC 582 at 619; 1 All ER 572 at 590 per Lord Radcliffe. 265. [1959] Qd R 8 at 11. 266. Craig v Marsh (1935) 35 SR (NSW) 323 at 329–30. 267. (1879) 4 Ex D 188 at 195. 268. Brandeis Goldschmidt & Co Ltd v Western Transport Ltd [1981] QB 864 at 870; [1982] 1 All ER 28 at 31 per Brandon LJ (CA); Williams v The Peel River Land and Mineral Co Ltd (1886) 55 LT 689 at 692–3 per Bowen LJ (CA); Williams v Archer (1847) 5 CB 318; Barrow v Arnaud (1846) 8 QB 595. 269. Williams v The Peel River Land and Mineral Co Ltd (1886) 55 LT 689 at 692–3 (CA); Bryanston Leasings Ltd v Principality Finance Ltd [1977] RTR 45; Brandeis Goldschmidt & Co Ltd v Western Transport Ltd [1981] QB 864 at 871; [1982] 1 All ER 28 at 32 (CA). 270. Brandeis Goldschmidt & Co Ltd v Western Transport Ltd [1981] QB 864 at 873: [1982] 1 All ER 28 at 34 per Brandon LJ (CA). 271. Where the period of limitation for actions founded on tort is three years: Limitation Act 1981 (NT) s 12(1)(b). 272. Limitation Act 1985 (ACT) s 11(1); 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(c); Limitation Act 1974 (Tas) s 4(1) (a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1); Limitation Act 2010 (NZ) s 29(1). 273. ACT s 18; NSW s 21; NT s 19(1); Qld s 12(1); Tas s 6(1); Vic s 6(1); WA s 60; NZ s 29(2). 274. ACT ss 43–45; NT s 19(2); Qld s 12(2); Tas s 6(2); Vic s 6(2); NZ s 30. 275. The New South Wales Act is silent as to extinction of title in the case of successive acts of conversion or wrongful detention, but s 63(1) provides for a general extinction of title after expiry of the period of limitation. 276. ACT s 33(1); NSW s 55; NT s 42(1); Qld s 38; Tas s 32; Vic s 27; WA s 38; NZ s 48. Similarly, Limitation Act 1939 (UK) s 32(2): Giles v Rhind [2008] EWCA Civ 118 at [42]ff. 277. Gabolinscy v Hamilton City Corporation [1975] 1 NZLR 150. 278. Beaman v ARTS Ltd [1949] 1 KB 550; 1 All ER 465. 279. (1962) 108 CLR 391. 280. Brewer v Dew (1843) 11 M & W 625; City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 at 483: a trespass to goods may be committed in this way even where the trespasser is a bailor who dispossesses the bailee. 281. Kirk v Gregory (1876) 1 Ex D 55; Fouldes v Willoughby (1841) 8 M & W 540 at 544–5 per Lord Abinger. 282. For example, In Marriage of Michiels (1991) 14 Fam LR 587.

283. Fouldes v Willoughby (1841) 8 M & W 540 at 549 per Alderson B (obiter): ‘Scratching the panel of a carriage would be a trespass’. 284. Hamps v Darby [1948] 2 KB 311; 2 All ER 474 (CA). 285. Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 205 at 214–15 per Latham CJ: ‘unauthorised acts of riding a horse, driving a motor car, using a bottle, are all equally trespasses, even though the horse may be returned unharmed or the motor car unwrecked or the bottle unbroken’. 286. Covell v Laming (1808) 1 Camp 497. 287. Hartley v Moxham (1842) 3 QB 701. 288. Unless the poison goes from the hand of the defendant directly into the animal’s mouth. 289. [1947] VLR 131. 290. Ibid at 133, citing Goodhart and Winfield, ‘Trespass and Negligence’ (1933) 49 LQR 359 at 366. Also Scott v Shepherd (1773) 2 Wm Bl 892 at 894 and Leame v Bray (1803) 3 East 593 at 602–3. 291. The court noted, however, that had the baits been thrown by the defendant directly to the complainant’s dogs then the injury would have been regarded as directly occasioned by the act of the defendant, in which case trespass would lie. 292. Manton v Brocklebank [1923] 2 KB 212 (CA) especially per Atkin LJ at 229. 293. Heyden v Smith (1610) 2 Brownl 329. 294. Hamps v Darby [1948] 2 KB 311; 2 All ER 474 (CA). 295. Ibid at 322, 478, respectively per Evershed LJ. 296. Wright v Ramscot (1665) 1 Wms Saund 183. 297. [1931] AC 90 at 106: ‘The wrong is constituted … whether or not actual damage has resulted therefrom either to the chattel or to the plaintiffs themselves’. 298. For example, Pollock on Torts, 15th ed, 1951, pp 264–5. 299. (1876) 1 Ex D 55. 300. Cf Channell B in Burroughes v Bayne (1860) 5 H & N 296 at 305–6. 301. [1953] NZLR 298. 302. Ibid at 302–3. For further support that mere touching is not trespass, see Wilson v Marshall [1982] Tas SR 287 at 299–300 per Cox J (FC). 303. For example, Restatement, Torts (Second), s 218. 304. The intention need not be to interfere permanently with another’s goods. Thus the unauthorised borrowing of a car in order to take it on a joy-ride with the ultimate intention of returning it to its owner is still a trespass: Schemmell v Pomeroy (1989) 50 SASR 450. Similarly, taking goods without permission in order to preserve them still constitutes trespass: Cressy v Johnson (No 3) [2009] VSC 52 at [215]–[217] per Kaye J. 305. Although today a person injured by an inadvertent act of trespass would normally choose to sue in the tort of negligence. 306. [1951] 2 KB 861; 2 All ER 310. Although the ratio probably is that the injury was caused by the conduct of the plaintiff (see especially Cohen LJ at 875 and 311 respectively) all three judges gave considered judgments to the effect that there was no liability for accidental trespass to goods.

307. He operated the machine which was excavating the earth, but he neither desired nor ought to have foreseen that damage to the cable which constituted the tortious invasion of the plaintiff’s interest — his act, therefore, was neither intentional nor negligent. 308. Manton v Brocklebank [1923] 2 KB 212. 309. Beals v Hayward [1960] NZLR 131 at 137 per McGregor J. 310. Authority for this proposition is to be found in Colwill v Reeves (1811) 2 Camp 575; 170 ER 1257; Clissold v Cratchley [1910] 2 KB 244 (CA); Wilson v New Brighton Panel Beaters Ltd [1989] 1 NZLR 74. 311. (1946) 74 CLR 204 at 224. 312. A right to the winnings of a racehorse does not equate with a right to possession of the horse itself: Minnamurra Racing Services Pty Ltd v Rogerson [2005] NSWSC 1054. 313. For a detailed account of the law relating to possession see Pollock and Wright, Essay on Possession in the Common Law, 1888. 314. Cf Lord Kenyon Ch J in Ward v Macauley (1791) 4 Term Rep 489 at 490: ‘the distinction between the actions of trespass and trover is well settled: the former is founded on possession; the latter on property’. 315. [1893] 1 QB 512 at 515. 316. Wilson v Barker (1833) 4 B & Ad 614, cf Badkin v Powell (1776) 2 Cowp 476. And see Wilson v Lombank Ltd [1963] 1 All ER 740. 317. Colwill v Reeves (1811) 2 Camp 575; contra ‘If a man puts corn into my bag … because it is impossible to distinguish what was mine from what was his’: per Lord Ellenborough, obiter, at 576. 318. Peachey v Wing (1826) 5 LJ (OS) KB 55. 319. Rooth v Wilson (1817) 1 B & Ald 59. 320. The Winkfield [1902] P 42 (CA). 321. Attersoll v Stevens (1808) 1 Taunt 183. 322. Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447 at 451 per Walsh J; nor could the defendant be heard to plead as a defence the fact that the property in the goods was in a third party and not in the plaintiff. 323. Gordon v Harper (1796) 7 Term Rep 9; Ward v Macauley (1791) 4 Term Rep 489 but see Lord Porter in USA v Dollfus Mieg et Compagnie SA [1952] AC 582 at 611; 1 All ER 572 at 582. 324. Johnson v Diprose [1893] 1 QB 512 at 515. 325. (1946) 74 CLR 204. 326. Ibid at 216–17. 327. Ibid at 224–8. 328. Pollock and Wright, Essay on Possession in the Common Law, 1888, p 145. 329. Of the remaining judges, Starke J agreed with Dixon J, without further elaboration (at 221); Williams J, in a brief and unreasoned statement held merely that if there had been an asportation the plaintiff as the person entitled to immediate possession could have sued in trespass. However, he found that no asportation had taken place (at 242); McTiernan J’s only addition to the debate was to reiterate that, to maintain an action in trespass, a person must have the actual possession or

constructive possession and that trover lay for the person deprived of the right to possession (at 234). 330. Taylor v Rowan (1835) 7 C & P 70; cf Wennhak v Morgan (1888) 20 QBD 635. 331. Balme v Hutton (1833) 9 Bing 471. 332. Parr v Ash (1876) 14 SCR (NSW) 352 at 356. 333. Dunwich Corporation v Sterry (1831) 1 B & Ad 831 provides a possible third exception: the owner of a franchise in wrecks was deemed to have constructive possession of a wreck so as to enable him to sue in trespass a person who had seized a cask of whisky before he could claim it. 334. (1852) 11 CB 1015. 335. See Barker v Furlong [1891] 2 Ch 172 (conversion). 336. Tharpe v Stallwood (1843) 5 Man & G 760. 337. Nelson v Cherrill (1832) 8 Bing 316; Jeffries v Great Western Ry Co (1856) 5 E & B 802 at 806 (obiter). 338. See Henry Berry and Co Pty Ltd v Rushton [1937] St R Qd 109 at 119; Wilson v Lombank Ltd [1963] 1 All ER 740 at 742. 339. Leake v Loveday (1842) 4 Man & G 972; 134 ER 399; Butler v Hobson (1838) 4 Bing NC 290; 132 ER 800; Henry Berry and Co Pty Ltd v Rushton [1937] St R Qd 109 at 119. 340. Brierly v Kendall (1852) 17 QB 937. 341. Roberts v Roberts [1957] Tas SR 84 at 96 per Burbury CJ. 342. The Mediana [1900] AC 113 at 117–18 per Earl of Halsbury LC. 343. Authority of law, as distinct from permission of another — eg, it covers one who enters an inn, but not the buyer of a ticket for a seat at a theatre. The position of a person who exceeds the scope of a licence is discussed in 5.6. 344. This rule has been abolished, in the case of distress for rent, since the enactment of the Distress for Rent Act 1737 (UK) s 19. 345. Otherwise an action on the case, eg, for abuse of process or maliciously procuring arrest must be relied on. Abuse of process is discussed in 25.1ff. 346. Thus, if an arrest is lawful only when a return on the warrant is made, a defective return does not effect a trespass ab initio; the arrest itself is unlawful: Freeman v Blewitt (1701) 1 Salk 409. 347. [1934] 2 KB 164; 1 All ER 380. They were trespassers, but not trespassers ab initio (despite the headnote to the contrary) of the documents: cf Canadian Pacific Wine Co v Tuley [1921] 2 AC 417 at 425 (PC) per Viscount Birkenhead: ‘Where there is an abuse of part only of the distress, the distrainer is not a trespasser ab initio as to what was rightly distrained’. On the other hand, in Dodd v Monger (1704) 6 Mod Rep 215, the defendant who lawfully distrained beer out of the barrel was a trespasser ab initio in respect of that barrel and its contents. 348. [1968] 2 QB 299; 1 All ER 229 (CA). 349. It may also matter where the entrant sues the occupier of the land. The occupier will be able to use reasonable force to eject an entrant who becomes a trespasser ab initio, whereas the mere commission of a misfeasance after lawful entry would not justify forcible ejection from the land. It might also affect the duty owed to such an entrant by an occupier in respect of the state of the premises and acts done therein.

350. Shorland v Govett (1826) 5 B & C 485, obiter. 351. Maitland, Forms of Action, 1936, p 48. 352. As to whether intangible property can be the subject-matter of an action see 4.16–4.17. 353. (1899) 20 LR (NSW) 190. 354. Ibid at 193 per Darley CJ. Similarly, in Ming Kuei Property Investments Pty Ltd v Hampson (1994) 126 ALR 313 at 319 (Qld SC) it was held that a mere notification of a claim to goods under the Customs Act 1901 (Cth) s 205(6) was not a sufficient demand for detinue purposes. 355. Capital Finance Co Ltd v Bray [1964] 1 All ER 603. See also Brambles Australia Ltd t/as Chep Australia v Tatale Pty Ltd [2004] NSWCA 232. 356. Egan v State Transport Authority (1982) 31 SASR 481 at 520–1. 357. Baud Corporation NV v Brook (1970) 40 DLR (3d) 418 at 423; Crowther v Australian Guarantee Corp Ltd (1985) Aust Torts Reports 80-709 at 69,102 (SASC); Casper v Murelli [2010] QDC 79 at [29]; CHEP Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 at [184], [185] per McDougall J. See also Egan v State Transport Authority (1982) 31 SASR 481 (obiter). 358. John F Goulding Pty Ltd v Victorian Railways Commrs (1932) 48 CLR 157 at 166–7. 359. In this regard the High Court quoted Blackburn J in Goodman v Boycott (1862) 2 B & S 1 at 9; 121 ER 975 at 977. 360. See Reeve v Palmer (1858) 27 LJ CP 327; 5 CB (NS) 84; 141 ER 33. 361. Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694; 2 All ER 159 (CA). 362. Elkin and Co Pty Ltd v Specialised Television Installations Pty Ltd (1960) 77 WN (NSW) 844 at 849. 363. Cf conversion where there is no necessity that the bailee should have obtained the property in the goods from the tertius: see, eg, Edwards v Amos (1945) 62 WN (NSW) 204 at 207. 364. Clayton v LeRoy [1911] 2 KB 1031; McCurdy v PMG [1959] NZLR 553; Banks v Ferrari [2000] NSWSC 874 at [60]. 365. Nelson v Nelson [1923] St R Qd 37 at 40. 366. (1899) 20 LR (NSW) 190 at 194 — the statement of the Chief Justice was obiter as the demand in this case was held to be insufficient. 367. Accordingly, the holder of a passport has title to sue in detinue even though the passport is the property of the government; R (Atapattu) v Home Secretary [2011] EWHC 1388 (Admin) at [63]. 368. [1984] VR 97 at 99. 369. Any defect in the immediate right to possession by virtue of a contract, statute or court order will defeat the claim in detinue: Au v Keelty [2007] FCA 77. 370. [2000] 2 Qd R 338 at [6], [7]: this despite the absence of any direct contractual relationship between the parties. 371. Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141 at 146–7 per Hope JA. 372. John F Goulding Pty Ltd v Victorian Railways Commrs (1932) 48 CLR 157 at 169 — the High Court held that a bailee’s default in losing the goods would usually involve a breach of contract, although the existence of the latter cause of action would be irrelevant to the accrual of the cause of action in detinue.

373. See, eg, Ballett v Mingay [1943] KB 281; 1 All ER 143. 374. In A Abrahams and Sons Pty Ltd v Commr for Railways [1958] SR (NSW) 134 the plaintiff chose to sue in detinue because his contractual remedy would have been out of time by reason of the provisions of the Government Railways Act 1912 (NSW). 375. See, eg, City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 at 491, where Windeyer J held that a bailee wrongfully dispossessed by the bailor can sue for trespass to goods, in trover or in detinue. 376. Jones v Dowle (1841) 9 M & W 19; Ballett v Mingay [1943] KB 281; 1 All ER 143; John F Goulding Pty Ltd v Victorian Railways Commrs (1932) 48 CLR 157 (detinue); Bristol and West of England Bank v Midland Ry Co [1891] 2 QB 653 (CA) (conversion — not until after the wrongful parting did the plaintiff become the owner; but he could still sue in conversion for the subsequent demand and refusal; contra Restatement, Torts (Second), s 237(F)). 377. However, the failure of an involuntary bailee to return a chattel because he or she has lost it does not amount to detinue: Howard v Harris (1884) 1 Cab & El 253. 378. Sometimes the plaintiff may obtain the return of the goods by bringing an action in replevin. 379. Bellinger v Autoland Pty Ltd [1962] VR 514 at 519 per Herring CJ. 380. In this regard Herring CJ quotes Holdsworth, History of English Law, Vol VII, 1925, p 438, who in turn cites the case of Kettle v Bromsall (1738) Willes 118 to the effect that ‘in trover only damages can be recovered; but the things lost may be of that sort, as medals, pictures or other pieces of antiquity … that no damages can be an adequate satisfaction, but the party may desire to recover the things themselves, which can only be done in detinue’. Holdsworth adds that ‘it was for this reason that it could be brought for property, which could be specifically known and recovered’. In McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 a yacht was held to have sufficient individuality to fall into the class of a special or unique chattel (at 312 per Young J). 381. See Allan v Dunn (1857) 1 H & N 572. However, specific restitution is still within the discretion of the court; it is not a matter of the plaintiff’s right: McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 307–8. 382. Forms of judgment in an action in detinue are explained by Diplock LJ in General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 at 317ff. 383. The judgment in this form would deprive the defendant of the option of returning the chattel after the judgment is handed down. 384. See Juhlinn-Dannfelt v Crash Repairs Pty Ltd [1969] QWN 1. A judgment in this form must specify independent sums for the assessed value of the chattel, and damages for its detention so that the plaintiff has the option of distraining for the assessed value of the chattel where it is not recovered by the sheriff. 385. For example, Uniform Civil Procedure Rules 2005 (NSW) Pt 39 Div 3; Uniform Civil Procedure Rules 1999 (Qld) r 916; Supreme Court Civil Rules 2006 (SA) r 248; Supreme Court Rules 2000 (Tas) r 875; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 66.04. 386. Whiteley v Hilt [1918] 2 KB 808 at 819 per Swinfen Eady MR; cf Howard Perry & Co Ltd v British Railways Board [1980] 1 WLR 1375 at 1383 (specific restitution of even an ‘ordinary article of commerce’ may be ordered where it is ‘obtainable on the market only with great difficulty’ as was the steel in this case.) 387. (1886) 55 LT 689 (CA). See also Williams v Archer (1847) 5 CB 381.

388. Contra Elliott, ‘Damages in Detinue and Conversion’ (1951) 9 NILQ 157, but citing no cases. 389. Ming Kuei Property Investments Pty Ltd v Hampson (1994) 126 ALR 313 (Qld SC). 390. Thomas Brown and Sons Ltd v Fazal Deen (1962) 108 CLR 391 at 412 per Kitto, Windeyer and Owen JJ, citing with approval Wilkinson v Verity (1871) LR 6 CP 206 at 209 and Betts v Receiver for the Metropolitan Police District [1932] 2 KB 595 at 605–6. 391. Thomas Brown and Sons Ltd v Fazal Deen (1962) 108 CLR 391 at 412 citing with approval Halsbury’s Laws of England, 2nd ed, Vol 33, [78]. 392. Wilkinson v Verity (1871) LR 6 CP 206 at 209. 393. Limitation Act 1985 (ACT) s 18; Limitation Act 1969 (NSW) s 21; Limitation Act 1981 (NT) s 19; Limitation of Actions Act 1974 (Qld) s 12(l); Limitation Act 1974 (Tas) s 6; Limitation of Actions Act 1958 (Vic) s 6; Limitation Act 2005 (WA) s 60; Limitation Act 2010 (NZ) s 29. 394. General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 (CA). Street on Torts, 6th ed, 1976, p 59, n 8, writing prior to the statutory abolition of detinue, theorised that the same rule presumably applies to commodities like shares, even though this would mean that the court has to ascertain the market price from the day of judgment. There is, however, some authority for the view that the plaintiff in such a situation would be obliged to mitigate by purchasing some of the shares at the time of the wrongful act: Asamera Oil Corp Ltd v Sea Oil & General Corp (1978) 89 DLR (3d) 1 (SCC). 395. Egan v State Transport Authority (1982) 31 SASR 481 at 529 per White J; Tanks and Vessels Industries Ltd v Devon Cider Co Ltd [2009] EWCH 1360 (Ch) at [65]. If, as noted by Giles J in Gaba Formwork Contractors Pty Ltd v Turner Corp (1993) 32 NSWLR 175 at 178, conceptually such damages are in lieu of return of the goods, what weight should be given to the statement of Nicholls LJ in IBL Ltd v Coussens [1991] 2 All ER 133 at 142 that this date is not an inflexible rule? 396. [1946] KB 374; 1 All ER 583. 397. See 4.40. This doctrine of mitigation of damages can hardly be applied in detinue to acts done before the tort is committed; Asamera Oil Corp Ltd v Sea Oil & General Corp (1978) 89 DLR (3d) 1 (scc) may be criticised on this basis. 398. See 4.40. 399. Greenwood v Bennett [1973] 1 QB 195; [1972] 3 All ER 586 (CA); also per Lord Macnaghten in Peruvian Guano Co Ltd v Dreyfus Brothers and Co [1892] AC 166. 400. Glenwood Lumber Co v Phillips [1904] AC 405 (PC). 401. Jones v Marchant (1916) 10 WWR 841; Australian courts would presumably follow Gaskins v Davis (1894) 115 NC 85 (NCSC) in holding that no deduction is made if the plaintiff exercises his or her right of recaption. 402. [1952] 2 QB 246; 1 All ER 796 (CA). Applied in Gaba Formwork Contractors Pty Ltd v Turner Corp (1993) 32 NSWLR 175, Giles J noting that, ‘fundamental to the reasons of each of their Lordships was that the defendant had used the goods for its own purposes’ (at 182). 403. Ibid at 254, 800 respectively. 404. In Egan v State Transport Authority (1982) 31 SASR 481 at 531, White J made the point that ‘the cost of hiring in of plant in order to continue working as a contractor it seems to me [is] a similar cost to the cost of hiring out plant adopted in the Strand Electric case’. 405. General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 (CA).

406. (1982) 31 SASR 481 at 531–3. 407. (1968) 121 CLR 584. 408. In Egan v State Transport Authority (1982) 31 SASR 481 at 532, the court was prepared to award a ‘substantial, but not inflated, award of exemplary damages’ because of the ‘peremptory and overbearing exercise of contractual power’ which had resulted in ignominy and hardship to the plaintiff. 409. (1862) 11 CB (NS) 850. 410. (1946) 74 CLR 204 at 230. The action on the case was not available in the Penfolds case because the respondent had not damaged the appellant’s bottles but merely filled them with wine. 411. Presumably because only permanent damage will enure to the reversioner: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 230 per Dixon J. See also Pollock CB in Tancred v Allgood (1859) 4 H & N 438 at 444, and Williams J in Mears v London & Southwestern Ry Co (1862) 11 CB (NS) 850 at 854; HSBC Rail (UK) Ltd v Network Rail Infrastructure Ltd [2005] EWCA Civ 1437 at [19]ff, which also examines the concept of ‘permanent damage’. 412. Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173 at 178. 413. Rogers v Macnamara (1853) 14 CB 27; Hurrell v Ellis (1845) 2 CB 295 (damages recovered for loss of employment where libel did not lie). 414. Townsend v Wathen (1808) 9 East 277. 415. Simpson v Thomson (1877) 3 App Cas 279 (HL) at 289 per Lord Penzance. 416. See, eg, Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785; 2 All ER 145 (HL); Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd [1986] AC 1; [1985] 2 All ER 935 (PC).

[page 110]

CHAPTER 5 Land

Trespass 5.1

Intentionally or negligently entering or remaining on, or directly causing any physical matter to come into contact with, land in the possession of another without permission or otherwise without lawful authority is a trespass (trespass quare clausum fregit). This tort protects the interest of plaintiffs in maintaining their land free from physical intrusion. Because of the emphasis on physical interference with possession,1 it follows that it is not the function of the tort to protect ownership as such. Nonetheless, because the owner is often in possession, the purpose of many a suit in trespass is not the recovery of damages but the settlement of disputed rights over land, and a judgment may be backed by the sanction of an injunction if the action succeeds. The use of this action in tort as a means of resolving disputes on title has been facilitated by the rule that trespass is actionable per se.2 This tort may also provide a useful remedy for the violation of a person’s privacy where that violation takes the form of unlawful intrusion on that person’s land or premises.3 In this connection the High Court in Plenty v Dillon4 has noted that it is the policy of the law of trespass not only to protect the possession of property but also the privacy and security of its owner. So, in recent years Australian courts have demonstrated a willingness, in appropriate cases,5 to grant injunctions to restrain the televising of film and sound recordings obtained in the course of the trespass. Despite its availability, however, the action in trespass to land cannot be used as

[page 111] a general remedy for violations of privacy; the limitations inherent in the nature of the tort will inevitably curtail the range of situations in which it can be utilised.6

Types of acts 5.2 As with all forms of trespass, the immediate act must constitute the trespass complained of; it is not trespass if the invasion of the plaintiff’s land is merely consequential upon the act of the defendant. Accordingly, the plaintiff landowner who complains that the defendant has erected a spout to drain away water from the eaves of the house of the defendant, as a result of which water has dripped onto the plaintiff’s adjoining land, can sue only in case, not in trespass.7 The difficulties of drawing the line between ‘direct’ and ‘consequential’ invasions are shown by the conflicting decisions to emerge from the courts. In Gregory v Piper,8 it was held to be trespass where rubbish, which was placed near the plaintiff’s land, on drying, rolled onto it, because this was the result of natural forces. This, it seems, cannot be reconciled with the decision of Denning LJ in Southport Corporation v Esso Petroleum Co Ltd9 that discharge of oil from a ship, carried by the tide onto the plaintiff’s foreshore, did not constitute a trespass, because the damage was consequential rather than direct. However, where the defendant deliberately harnesses the force of the wind or movement of water to project an object onto the land, this, in the view of Morris LJ, would be a sufficiently direct act to constitute trespass.10 To enter another’s land without permission is a trespass.11 Of course, such an entry may be an assertion of title, and then the suit in trespass will, in effect, determine who has title.12 [page 112]

5.3 To cause some foreign matter13 to enter or to come into physical contact with the land of the plaintiff is a trespass. Firing a gun into the soil,14

placing a ladder against,15 or driving nails into,16 the wall of the plaintiff’s building, encouraging a dog to run onto the plaintiff’s land,17 removing the doors and windows,18 and throwing a person onto another’s land,19 are all trespasses. So, too, is operating a bulldozer so as to cause earth to fall onto and damage the plaintiff’s boatshed,20 breaking the plaintiff’s fence,21 chopping down the door of a shop,22 or erecting ventilating pipes on the walls of premises in such a way as to overhang a neighbour’s land.23 But in all cases the intrusion onto the plaintiff’s land must result from some act or omission by the defendant or persons for whom he or she is responsible. The intrusion on the plaintiff’s deer sanctuary by a pack of hounds does not of itself impose liability.24

5.4 To remain on land after a trespassory entry thereon is in itself also a trespass, a ‘continuing trespass’ as it is commonly styled. So, if A places goods on B’s land and is successfully sued by B in trespass for this act,25 A is liable, by failing thereafter to remove them, to further actions in trespass for the continued presence of the goods on the land.26 If, on the other hand, A merely commits an act such as digging a hole, or removing goods such as soil27 or coal,28 but does not wrongfully allow anything to remain on the land, the fact that the harm occasioned by the trespassory act continues is not enough to make it a continuing trespass; in this event damages can be recovered once only.29 There is a continuing trespass only when that which continues after the first action is itself a trespass, hence, for a person to remain or leave goods30 on land or to fix materials to the land,31 would be such a trespass. [page 113]

5.5

Persons (other than tenants) who originally enter land with the permission or by licence of the possessor are trespassers if they remain there for an unreasonable time after the termination of the permission or withdrawal of the licence.32 In Cowell v Rosehill Racecourse Co Ltd33 it was held that a patron of a public amusement who pays for admission acquires a contractual right and licence to remain on the property to view the amusements; but in the event that the licence is withdrawn, whether for good cause (for example, where the licensee gets involved in disorderly conduct or

a sudden public emergency occurs) or not, the licensee who refuses to leave becomes a trespasser. The court stressed that: … the licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence.34

Likewise, a building contract entitles the building contractor to enter the land and conduct building operations in order to perform the contract and earn the expected profit. In the event that the building owner wrongfully repudiates the contract, the contractor’s sole remedy will lie in damages for breach of contract; the contractor who persists in going onto the land against the will of the owner may be treated as a trespasser.35 A licence to enter property need not be express. It may be implied,36 for example, by a householder who leaves a front garden gate unlocked. Any member of the public with lawful reason, including police officers,37 may proceed from the gate to the front or back door, to request admittance and to conduct any lawful business.38 The presence of a sign reading ‘Private Property’ would not negate such a licence;39 but the situation would be otherwise if followed by the words ‘Keep Out’. An implied licence is not a licence to wander about at will, but presupposes some genuine and legitimate purpose.40 However, the mere fact that a police officer has reasonable grounds for wanting to speak to a person on the premises would not, of itself, imply the existence of such a licence, as the grant of the licence depends on the occupier’s [page 114] frame of mind rather than that of the officer.41 If the implied licence is withdrawn,42 a person is not a trespasser during the reasonable time it takes to leave the premises.43 Whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact,44 but there are occasions where such a licence will, as a matter of law, be inferred.45

5.6 Trespass may also be committed by failing to leave premises once the purpose for which permission was given to enter has been accomplished. The trespass here may be a continuing one. In Konskier v B Goodman Ltd a

builder, who had originally been granted permission by the possessor of a building to leave rubbish there while demolishing part of it, was held liable in trespass to the person who subsequently became tenant of the building for failure to remove the rubbish after the expiry of the licence.46 Where a person with a licence enters land with the sole purpose of exceeding the terms of that licence, that person will be a trespasser.47 There is still some doubt as to whether an action may also become trespassory where the conduct of the defendant exceeds the scope of the licence but where he or she may not have had that singular purpose in entering the land. In Singh v Smithenbecker the defendant was licensed, under the terms of a contract for the purchase and sale of sheep, to enter the plaintiff’s land to ask for delivery of the sheep. Instead of confining himself to this, he also rounded up some of the sheep and drove them off the property, and in so doing, took a gate off its hinges. He was held liable for trespass ‘because of acts done unconnected with a mere entry to interview the proprietor of the land’.48 In Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd49 a majority of the New South Wales Court of Appeal held that the defendants, who were entitled under the terms of a contract to enter the plaintiff’s premises for the purpose of retaking possession of goods subject to the contract, had committed acts of trespass by removing, in addition, other goods belonging to the plaintiff. Sugerman JA, in his dissenting opinion, drew a distinction between a licensee who enters solely for a purpose which exceeds the licence, and who thereby becomes a trespasser, and one who enters for a purpose [page 115] partly within the licence and partly beyond it and who, having entered, takes goods which are partly within the authority of the licence and partly outside it. As regards the latter he said ‘it is difficult to grasp the notion of a person who at the same time is both a trespasser and not a trespasser which is implicit in the doctrine … of trespass pro tanto’.50 In the subsequent appeal to the High Court51 only Kitto J52 was prepared to endorse the view that each step the defendants took on the plaintiff’s land for the purpose of taking goods not subject to the display plan agreements ‘was an unlicensed step and therefore a trespass’. Barwick CJ and Menzies J, in a joint judgment, held53

that on the facts, the entry was authorised and consequently found it unnecessary to add to what Sugerman JA had said on the question of ‘socalled trespass pro tanto’. It is arguable that in so doing they endorsed Sugerman JA’s rejection of the doctrine. Windeyer and Owen JJ, in their respective opinions, did not discuss the issue of trespass at all. Whether trespass to land may be committed in these circumstances must therefore be regarded as unresolved.54 Where a lessee in possession of land holds over at the expiration of the term, to remain on the land is not an act of trespass55 but the lessee may be removed by an action for ejectment.56 In Plenty v Dillon it was held that a police officer who enters private premises without the permission of the person in possession for the purpose of serving a summons commits trespass.57 Such conduct may, however, be authorised or excused by law;58 accordingly, entry by a sheriff or bailiff under a warrant or writ of execution confers a legal right to enter premises and remain there in charge of the goods subject to the warrant or writ until the execution is satisfied; where the sheriff or bailiff goes further and locks the premises or otherwise refuses to allow the lawful possessor to enter the premises, those acts will themselves constitute trespasses.59 [page 116]

Subject matter 5.7 The tort is trespass to land; obviously, then, to walk on the surface of the plaintiff’s land is enough to constitute the tort of trespass. Anything attached to the soil, and capable of being separately possessed, may be the subject matter for trespass quare clausum fregit, including damage to grass60 or turnips,61 or a profit à prendre such as fisheries rights62 or the right to take rabbits.63 Possession of land may be separated, as it were, horizontally so that, for instance, A may possess the pasturage, B the surface and subsoil, and C the minerals below; each of them may sue if the subject matter of that one’s possession is invaded. Highway authorities in England, for example, often

have the surface of streets vested in them by statute: and so they (not the owners of the adjoining land)64 may sue for surface trespasses, such as breaking up the street65 or erecting structures on the highway.66 In Australia and New Zealand, by comparison, public roads have not been regarded as the property of the coterminous owners of the land, being originally vested in the Crown and generally handed over to municipal corporations. One result of this has been that the courts have widely construed the powers of highway authorities, regarding the fee simple of the land in which public streets are laid out as vested in the authority, and not merely the fee simple of the surface.67

5.8 Members of the public enjoy a right of way over the highway but if a person uses a highway for purposes other than those ‘reasonably incident to its user’68 as a highway the use is a trespass. The purpose need not be unlawful in itself; for example, using the highway to obtain information on the speed and performance of racehorses belonging to the owner of the adjoining land,69 has been held trespass. It may be trespass to tunnel beneath the surface of land, to mine there,70 to use a cave beneath it or to drive building foundations through the soil; for, in the absence of specific provision to the contrary, the owner of the land has the right to exercise control over the ground underneath to a considerable depth.71 In Stoneman v Lyons, workers engaged in constructing a supermarket, who had excavated a trench under the footings of the adjoining landowner’s garage wall without any boxing or other support, leading to its collapse once rain fell, were held liable in trespass.72 [page 117] More recently, in Star Energy Weald Basin Ltd v Bocardo SA73 intrusion by pipelines 250–850 metres below the plaintiff’s land was held to constitute trespass, despite not damaging or disturbing the surface. After surveying relevant case law, Lord Hope held that the maxim cuius est solum, eius est usque ad coelum et ad inferos has retained its value as a guide, albeit an imperfect one74—the point of absurdity of its application had not in this case been reached, as demonstrated by the fact that the strata could be worked on at these depths. Different considerations apply where the plaintiff is a lessor

rather than the owner of land, for in such cases the maxim must be applied with caution and will yield to the reasonable construction of the lease.75

5.9 It is trespass to invade that portion of airspace which is needed for the ordinary use of the land and structures upon it.76 This has been described as ‘a sound and practical rule’ which allows adjoining landowners to know precisely where they stand: [T]hey have no right to erect structures overhanging or passing over their neighbours’ land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty.77

The notion of ‘ordinary user’ has been liberally interpreted by the courts in cases where the invasion has taken the form of oversailing cranes, advertising signs and other structures erected on neighbouring premises. In Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd,78 for example, the court was not prepared to concede that no trespass had occurred simply because the invading booms were high above the property and their activity did not interfere with the plaintiff’s ordinary business. In LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd the Supreme Court of New South Wales held79 that the relevant test ‘is not whether the incursion actually interferes with the occupier’s actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with the ordinary uses of the land which the occupier may see fit to undertake’. The ‘ordinary user’ theory is also readily applicable to transient incursions of airspace such as the firing of projectiles across neighbouring land. Accordingly it has been held80 to be a trespass to shoot across the defendant’s property at a cat sunning [page 118] itself on a shed situated on adjoining property.81 Aircraft usually fly above private property at heights which in no way affect the user of land. Here it has been held that no infringement of airspace takes place and no trespass has been committed even though the purpose of the overflight was to photograph the property below.82

Apart from the position at common law, legislation in all the Australian states (other than Queensland) and in New Zealand83 accords to aircraft the privilege of innocent passage for the ordinary incidence of flight and provides that no action shall lie in respect of trespass or nuisance by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and other circumstances of the case, is reasonable. These statutes thus exclude actions being brought in trespass for the mere transient invasion of airspace.84 To counterbalance this exemption, the legislation imposes strict liability on the owners of aircraft for all material loss or damage to persons or property caused by that aircraft, whether in flight,85 taking off86 or landing, or by a person in it or articles87 falling from it, without proof of negligence or intention or other cause of action.

State of mind of the defendant 5.10 The rules here are essentially similar to those governing other forms of trespass. The issue is whether the defendant intended to enter the land, regardless of whether there was any intention of invading any interest of the plaintiff. Mistake, as such, is no defence in trespass; the defendant who mistakes the land for his or her own will still be trespassing.88 As with all torts, there is no liability if there is no voluntary act on the part of the defendant; a person thrown onto the land by a third party is not liable in trespass.89 So where the defendant suffered an epileptic fit and fell unconscious onto a railway track, her action was regarded as involuntary and not a trespass.90 A negligent unintentional act of trespass is enough;91 for example, if A intentionally throws a stone onto C’s land and, as A should have foreseen, it ricochets onto B’s land, this is trespass to B’s land as well as to C’s. On the other hand, it is clear that an unintentional non-negligent act is not trespass.92 [page 119] A person will only be liable in trespass if he or she is present at and has taken part in the trespass, or has authorised or instigated others to commit the trespass.93 No liability will ensue where the act is committed by third

persons, if the evidence does not show that the defendant personally took part in it or in any way authorised it, even though the trespass might have been committed solely in the defendant’s interests and the defendant took the benefit of it.94 In League Against Cruel Sports Ltd v Scott95 hounds from a local hunt intruded on a sanctuary owned by the plaintiff and disturbed the deer. Park J held that the master of the hounds could not be liable in trespass unless it could be proved that he (or some person for whom he was responsible) either deliberately encouraged the dogs to enter the sanctuary or negligently failed to prevent that intrusion.

The interest of the plaintiff in the land 5.11 The plaintiff with a legal estate and exclusive possession96 may sue in trespass.97 Only a tenant and not the landlord can sue if a third party trespasses on the land demised.98 The tenant in possession may also sue the landlord for trespassing on the land.99 In England,100 although not in New Zealand,101 the owner of an equitable interest can sue. A statutory possession will also be sufficient to found an action of trespass.102 It has been held that ‘a person may have such a right of exclusive possession of property as will entitle him to bring an action for trespass against the owner of that property but which confers no interest whatever in the land’,103 for example, a statutory tenant under the (English) Rent Acts. And persons whose interests fall [page 120] short of those of lessee may nonetheless be able to sue in trespass if in fact they have exclusive occupation.104 In McIntosh v Lobel Kirby P held that where the tenant is a one-person company, that company being the alter ego of its managing director, the latter has sufficient possession to sustain a suit in trespass.105 In light of these cases, a lodger might be able to sue in trespass if, on the facts, he or she had exclusive occupation—relevant facts would include possession of an outdoor key and the right to bar access to the rooms.106 It is clear, though, that a lodger without a right of exclusive occupation, like a hotel guest, would not have sufficient interest to sue in

trespass.107

5.12 In National Provincial Bank Ltd v Ainsworth108 the House of Lords unanimously held that a deserted wife has no proprietary interest in the matrimonial home, only a personal right. Nonetheless, Lord Upjohn stated that she had exclusive occupation and could therefore bring proceedings against trespassers.109 There is some authority for the proposition that where a married couple live together but where only one of them is the legal occupier of the premises only that individual will have standing to sue in trespass.110 On the other hand, joint tenants or tenants in common or coowners would all be regarded as having individually the necessary legal estate and exclusive possession to sue in trespass for interference with the land. It is, however, doubtful that trespass will lie, as between joint tenants, tenants in common or co-owners, unless there has been an actual ouster of one by the other.111 [page 121]

5.13 Whether a plaintiff has exclusive possession is a question of fact112 and one especially difficult to decide where contractual arrangements for presence upon land are interfered with. The case of Hill v Tupper113 illustrates this difficulty: A leased certain land, which adjoined their canal, from X Co. A was also given ‘the sole and exclusive right’ to let out on hire pleasure boats for use on the canal. Subsequently, B set up a rival concern, whereupon B was sued in trespass by A. The court dismissed the action. This decision is not surprising given the fact that A had conceded that X Co could sue B in trespass which was tantamount to an admission that he, A, did not have exclusive possession. The court, however, had rejected the plaintiff’s claim because X Co lacked the power to make an exclusive grant of the right to use the canal for letting out pleasure boats. If the court was correct then the mere fact that the licence granted to A the ‘sole and exclusive right’ could not be allowed to decide the issue of exclusive possession. An inquiry may also be necessary as to whether the plaintiff has a licence to use land as opposed to a lease conferring a right to possession. The former would ordinarily confer only a personal right enforceable in contract, whereas

the latter would enable the plaintiff to sue in trespass.114

5.14 It is no defence to a wrongdoer that the possession of the plaintiff visà-vis a third party is unlawful; the fact of possession is enough to establish the plaintiff’s title115 and the wrongdoer cannot plead the jus tertii unless it is also to assert that the interference with possession was committed with the authority of that third party. But as against the true owner, the rule is different; in Delaney v TP Smith Ltd116 the plaintiff entered property held under a lease which was unenforceable because it did not comply with the requirements of the successor to s 4 of the Statute of Frauds relating to a memorandum in writing, and it was held that he was unable to sue his landlord in trespass for ejecting him. The plaintiff here did not have a legal estate and, as between himself and the landlord, had no right to possession. Where the action in trespass is used to solve a dispute between two persons, each asserting a right to the property, and each doing some act in the assertion of the right of possession, and where the dispute centres upon which of them is actually in possession of the land, ‘the law considers that one to be in possession who has the legal title’.117 The person without legal title, although apparently in possession at the same time, will be regarded as a trespasser. It is to be remembered, too, that: … a mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person

[page 122] whom he ejects, and drive him to produce his title, if he can, without delay, reinstate himself in his former possession.118

During the period of adverse possession119 the dispossessed plaintiff retains legal title and may sue the adverse possessor who is regarded as a trespasser. The adverse possessor is in turn able to bring an action in trespass against subsequent trespassers.120 Once the requisite lapse of time has passed, the adverse possessor’s title hardens into law and he or she, in turn, becomes able to maintain an action in trespass against the dispossessed possessor. A plaintiff with a right to immediate possession of the land can, once entering upon it,121 sue for trespasses committed by third parties between the

date of accrual of the right and the entry:122 this is often called trespass by relation because the plaintiff’s possession relates back to the date when the right to possession was acquired.123

Remedies Damages 5.15 The basic rule is that the plaintiff is entitled to full restitution for any loss.124 Generally, the depreciation in selling value will be an adequate measure for destruction of or damage to land and buildings, but it cannot be said that this is the only, or even the normal, measure of damages. An equally admissible measure of damages is the cost of reinstating and restoring the property to its original condition.125 Although it is sometimes said that the plaintiff has the choice [page 123] of remedy,126 the cost of restoration will not be awarded where it is unreasonable127 or entirely disproportionate128 to the diminished value of the land. In Jones v Shire of Perth,129 for example, where the plaintiffs sued for damages for trespass and the unlawful removal of natural support to their land, the cost of restoring the land by building a granite retaining wall ($10,000) was held to be out of proportion to the injury done ($2000) and accordingly disallowed. The cost of repair will, however, always be important evidence of the plaintiff’s loss, especially where there is no market in which the value of the property may be ascertained as where a house located on land zoned for high-rise development is damaged.130 Alternatively, it may in the particular circumstances be possible for the plaintiff to prove that it was reasonable131 to have the property restored. All tests such as market value or replacement value are subordinate to the overriding principle of restoring the plaintiff to the same position as before the tort was committed.

5.16 Whatever measure of damages is adopted will not preclude the

plaintiff also recovering, where appropriate, special damages, such as business profits.132 It is clear, too, that consequential damages may also be awarded where the loss suffered is the natural and probable result133 of the trespass. In Svingos v Deacon Avenue Cartage & Storage Pty Ltd134 agents of the respondent, after trespassing on a farm belonging to the appellant in order to remove a van, left open a gate, as a result of which straying cattle entered and damaged olive trees on the property. This was held to be ‘foreseeable consequential damage’ and accordingly recoverable. In Hogan v AG Wright Pty Ltd135 consequential loss was likewise awarded for the death of a filly which escaped from the plaintiff’s property after the defendant trespassed with a bulldozer and broke down the fence. Although the court in that case expressly left open136 the question whether reasonable foreseeability is an essential test of consequential loss in actions for trespass to land, the New South Wales Court of Appeal, in TCN Channel Nine Pty Ltd v Anning,137 after a comprehensive review [page 124] of the cases, answered that question in the negative, and concluded that reasonable foreseeability is not relevant.138

5.17 The measure of damages for wrongful occupancy of land is the reasonable rental value of the land during the time of the defendant’s occupancy.139 For example, if the defendant uses part of the land for tipping, the plaintiff is not limited to the diminution in sale value of the land but can recover the reasonable value of that particular use of the land made by the defendant together with the diminution in value of the rest of the land.140 And the defendant who without permission wrongfully depastures cattle on the plaintiff’s land will be ordered to pay as damages the reasonable cost of agistment.141 Damages against an over-holding tenant will run from the time the tenant became a trespasser to the time the trespass ceased and may be the equivalent of a claim to mesne profits.142

5.18 Where goods such as coal or other minerals, gravel or trees are severed from land, the measure of damages depends upon whether the act is wilful143 or innocent. If the severance and subsequent conversion of the

goods are innocent the defendant can deduct the cost of severance from the value of the goods.144 If the act is wilful the defendant cannot deduct any expenses of severing, though there is some authority to suggest that the defendant can deduct subsequent expenses such as hauling to the surface.145 Whether in either case the defendant can also deduct an additional sum by way of profit for work done, or whether the plaintiff is entitled to the value of the severed goods less the defendant’s actual expenses, is uncertain.146

5.19 If warranted, exemplary or aggravated damages may also be awarded for actions of trespass to land. The former are punitive in nature and are intended to express the court’s disapproval where the trespass is wanton and intentional or [page 125] accompanied by violent, abusive or insulting conduct.147 A tenant who is unlawfully evicted by a landlord may recover exemplary damages—to teach the landlord that tort does not pay.148 In Pollack v Volpato the New South Wales Court of Appeal held149 that, because the award of exemplary damages involves the tribunal of fact in an exercise of wide discretion, and depends largely on the view which that tribunal takes of the defendant’s conduct and what is necessary to mark its disapproval thereof, an appellate court should not lightly interfere. On the other hand, the weapon of exemplary damages should be used with restraint.150 Appellate interference is justified only where the exemplary element of the award is excessive having regard to the conduct complained of so as to indicate that the tribunal of fact has acted outside the bounds of reason. Aggravated damages, unlike punitive damages, are a form of general damages, given by way of compensation for injury to the plaintiff, though frequently intangible in form, resulting from the circumstances and manner of the defendant’s wrongdoing.151 Here the court’s focus is primarily on the effect of the trespass upon the plaintiff, unlike exemplary damages, where the focus is on the conduct of the trespasser.152 Aggravated damages may be awarded as a solatium for the plaintiff’s injured feelings,153 as where a television film crew trespassed on land in order to interview the owner.154 Though made on a different basis from an award of exemplary damages,

quite often ‘the same circumstances which increase the hurt of the plaintiff because of the malicious, insolent, high-handed or contumelious conduct of the defendant also make it desirable for the court to mark its disapprobation of his conduct’.155 In such cases the court may choose to award one sum which represents both heads of damages and in this way take into account all proper elements of damages, and no element more than once. Finally it should be remembered that trespass is actionable per se156 and damage is not necessarily the gist of the action. A person who has suffered no pecuniary [page 126] loss is nonetheless entitled to recover damages. As stated by the High Court in Plenty v Dillon,157 such an award is in vindication of the right to exclude others from the property. Depending upon the circumstances, these may be more than merely nominal damages.158 Business executives wrongfully barred from entering their offices and deprived of access to business papers might be unable to prove that they have sustained any definite pecuniary loss but it cannot be said that they are entitled only to nominal damages.159 In appropriate cases damages may be based on a ‘hypothetical negotiation’, that is, what might have been agreed for the use of the land, reflecting the benefit enjoyed by the defendant by virtue of the trespass.160 This is to be distinguished from the fruits of the enjoyment.161

Injunctions 5.20 The plaintiff in an action for trespass to land may seek injunctive relief as an alternative to damages. The injunction, being an equitable remedy, is entirely at the discretion of the court and the onus rests on the plaintiff to show that it is, in the circumstances, the appropriate form of relief.162 To win the injunction the plaintiff will, in general, have to persuade the court that an award of damages would not be an adequate remedy163 or that irreparable harm would be suffered if the injunction were to be refused.164 Where the trespass is of a continuing nature165 or, although not of a continuing nature, is serious, or threatened to be repeated, these requirements will be deemed to be

satisfied and the court will, as a matter of course, interfere by way of injunction.166 Even here, however, the defendant may rely on special circumstances167 which will restrain the grant of the injunction. Increased costs would not, of themselves, constitute special circumstances.168 [page 127] Where the trespass causes little or no actual harm to the property the courts will be more rather than less inclined to grant injunctive relief, for ‘if the injunction is refused the result will be … a licence to continue the tort of trespass in return for a nominal payment’.169 If the court were to insist upon damages in such situations, not only would it be seen to be sanctioning the defendant’s wrongful action but people would then be able to infringe with impunity the property rights of others and thereafter say ‘And I am entitled to go on doing it because I am really doing you no tangible harm and five pence will amply compensate you for that harm’.170 A refusal to grant an injunction in such circumstances might also result in depriving the plaintiff of a legitimate opportunity to charge a fee in return for the use of the property.171

5.21 The conduct of the defendant in relation to the tort as well as his or her attitude towards the plaintiff’s rights will also be regarded as relevant factors in the court’s assessment whether or not to grant an injunction. In Graham v KD Morris & Sons Pty Ltd172 the court was manifestly influenced in its decision to award the sought-after injunction by the failure of the defendant at any time to admit that its acts constituted a trespass, let alone its failure to apologise to the plaintiff for the oversailing of its crane. Also influential was the defendant’s failure, even after complaints had been made, to offer the plaintiff any monetary compensation. It is clear that the courts will look sympathetically upon a defendant who has, prior to the trespass, attempted to negotiate with the plaintiff by offering the latter a substantial sum by way of monetary compensation.173 It is possible for the courts, having granted an injunction, to suspend its operation for a period of time. In Graham’s case a suspension of 21 days was ordered so as to allow the defendant time to take the necessary remedial steps to prevent its crane jib from continuing to trespass in the plaintiff’s airspace. While a short suspension of the injunction for such a purpose is perfectly

reasonable, a suspension for any lengthier period174 of time may serve to undermine the grant of relief and may even, for all practical purposes, render the injunction nugatory.175

5.22 Injunctive relief may also be employed if not to avert the trespass then at least to suppress its after-effects. To this end the court might, in an appropriate case, grant an injunction to prevent the subsequent publication of a videotape, film, [page 128] photograph or interview obtained by a trespasser during the course of the trespass. In Lincoln Hunt Australia Pty Ltd v Willesee176 Young J specified three preconditions for the grant of such an injunction.177 These are, first, that the circumstances must be such as to make publication unconscionable; secondly, that irreparable harm will be suffered by the plaintiff if the injunction is refused; and thirdly, that the balance of convenience favours the grant. The plaintiff in Willesee’s case failed to satisfy the second of these conditions, the court being of the opinion that damages would be an adequate remedy. The court thus found it unnecessary to address the other criteria in any detail. Young J did, however, indicate178 that in considering the balance of convenience (or, as he preferred to say, the balance of justice),179 he would have weighed: … the public interest in having full dissemination of news of matters of general importance … [against] the court’s duty to prevent persons in positions of power riding roughshod over the personal and proprietary rights of other citizens … the prejudice suffered by the defendants if the story, on which doubtless [were] invested considerable sums of money, might go stale as against the possible prejudice to the plaintiff’s business if it were telecast.

As to the criterion of unconscionability the court stated that ‘what is unconscionable will depend to a great degree on the court’s view as to what is acceptable to the community as decent and fair at the time and in the place where the decision is made’.180 The decision in Willesee was referred to with approval by the Supreme Court of Queensland in Emcorp Pty Ltd v ABC181 and in Donnelly v Amalgamated Television Services Pty Ltd182 where similar injunctions were requested and on those occasions granted.183 In Emcorp the court was of the view that the plaintiff could suffer a devastating blow to his

business if the telecast were to go ahead and implied that this would be unconscionable given the misleading slant put on events by the defendant’s interview team. Damages including punitive damages would not be an adequate remedy. In Donnelly an injunction was granted against a telecaster to prevent it from showing a video taken by police in abuse of their powers, on the basis that, as a practical matter, there was no other satisfactory remedy.184 The High Court in ABC v Lenah Game Meats Pty Ltd185 has now held, consistently with these approaches, that equitable jurisdiction exists not only to restrain the publication of a videotape or photograph made by a trespasser, but is equally applicable where such [page 129] materials have passed into the hands of a third party, itself innocent of the trespass, who threatens to publish it. Plaintiffs who demonstrate only that their reputations or interests will suffer if publication were to proceed will not have proved unconscionability to the satisfaction of the court. In cases such as these it must additionally be shown that the conduct of the defendant was such that publication of the videotape could not reasonably be sanctioned. This would be the case where the defendant’s conduct was motivated by ill-will or a callous disregard of the rights of others; where the charges levelled by the trespassing television crew were irresponsible and biased; or where the incident was portrayed in a way that would unfairly and severely prejudice the plaintiff.186

Actions by Reversioners 5.23 Although trespass is not available to those without possession whose interests in land are violated, they are not remediless. Landlords will ordinarily have contractual rights against tenants who damage their interest, for example, by allowing premises to fall into disrepair, and that branch of the law of property known as waste will also afford a remedy of a tortious nature to landlords who establish that tenants have damaged the reversionary interest.187

If a non-possessory interest in land is violated by a third party, an action derived from the old action on the case may lie. As Hodges J stated in Rodrigues v Ufton,188 while an action in trespass can only be maintained by a person who has possession,189 an action may be maintained by a reversioner190 for an injury to the reversion done by a trespasser. A less strict approach has more recently been endorsed by New Zealand courts. In Lockwood Buildings Ltd v Trust Bank Canterbury Ltd191 Tipping J acknowledged that, while historically the form of action might properly have been on the case, ‘today a claim by a reversioner can fit comfortably into the modern notion of trespass’. This shift in characterisation may prove to be unimportant for there remains general agreement as to the need for reversioners to be afforded an effective remedy for harm done to their reversionary interest. The form of relief most often sought is damages but there is no reason to suppose that an injunction will not be available in appropriate circumstances.192 In either case the plaintiff must prove ‘such permanent injury as would be necessarily prejudicial to the reversioner’.193 In Jones v Llanrwst Urban District Council194 permanent injury [page 130] within the meaning of the rule was defined as injury which will continue indefinitely unless something is done to remove it. Applying a similar test the New South Wales Supreme Court in McCarty v North Sydney Municipal Council195 held that to allow the defendant to erect a urinal on the plaintiff’s land would be to cause a permanent injury within the meaning of the rule. But it would not be enough to prove that the defendant’s cart wheels had made an impression on the surface of the land,196 nor that the defendant was merely exercising a purported right of way. _______________ 1.

Hardie Finance Corp Pty Ltd v Ahern (No 3) [2010] WASC 403 at [222] per Pritchard J.

2.

See, eg, Bush v Smith (1953) 162 Estates Gazette 430 (CA). The growing awareness of the scope of the declaratory judgment could lead to a declining use of trespass for this purpose; cf Loudon v Ryder (No 2) [1953] Ch 423; 1 All ER 1005; Acton Corporation v Morris [1953] 2 All ER 932 (CA). (The defendant locked the door of his house, thereby denying the plaintiff access to his upper flat. Though the court doubted whether this was trespass, it held that the plaintiff could have a declaration of his right of access.) The action for recovery of land is also important in this

connection: see 5.23. Plaintiffs who do not mention trespass to land in their pleadings are not restricted to their alternative claim for breach of contract, and so can claim exemplary damages for the trespass: Drane v Evangelou [1978] 2 All ER 437 (CA); and see 5.19. 3.

See useful discussion by Handley, ‘Trespass to Land as a Remedy for Unlawful Intrusion on Privacy’ (1988) 62 ALJ 216.

4.

(1991) 171 CLR 635 at 647; 98 ALR 353 at 361; upheld in New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [30].

5.

Emcorp Pty Ltd v ABC [1988] 2 Qd R 169; Rinsale Pty Ltd v ABC (1993) Aust Torts Reports 81231 (Qld SC); cf Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Heritage Real Estate Pty Ltd v ABC (SC(NSW), Sharpe J, 21 July 1992, unreported) (involving unlawful trespass by television reporters and camera crews investigating allegations made against the respective companies).

6.

No tort is committed where the land or premises are not entered. A photograph taken from adjoining land or a public street is not actionable: Bathurst City Council v Saban (1985) 2 NSWLR 704 at 706; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 485, aff’d in Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414; 56 ALR 193 (overlooking activities from adjoining premises); Hickman v Maisey [1900] 1 QB 752 at 756 (CA) (sketch of private land); Entick v Carrington (1765) 2 Wils KB 275; 95 ER 807.

7.

Reynolds v Clarke (1725) 2 Ld Raym 1399; cf Lemmon v Webb [1894] 3 Ch 1 at 24 per Kay LJ (and [1895] AC 1) that the encroachment of boughs and roots of trees is not trespass.

8.

(1829) 9 B & C 591.

9.

[1954] 2 QB 182 at 195–6; 2 All ER 561 at 570 (CA), supported by Lords Radcliffe and Tucker [1956] AC 218 at 242, 244; [1955] 3 All ER 864 at 872, 873 (HL) respectively.

10.

[1954] 2 QB 182 at 204; 2 All ER 561 at 576. See also Covell v Laming (1808) 1 Camp 497 (defendant at the helm guided his ship in a certain direction. The wind and waves were only instrumental in carrying along the ship in the direction in which he guided it. Upon the ship colliding with the plaintiff’s ship, held to be a trespass).

11.

Coco v R (1994) 179 CLR 427 at 435; Kuru v New South Wales [2008] HCA 25 at [43] per Gleeson CJ, Gummow, Kirby and Hayne JJ. A squatter, ie, ‘one who without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can’ is a trespasser: per Lord Denning in McPhail v Persons, Names Unknown [1973] Ch 447 at 456; 3 All ER 393 at 395 (CA). Similarly, a person who enters a house to conceal a microphone in the chimney of the lounge is trespassing: Greig v Greig [1966] VR 376. A person who enters the matrimonial home at the invitation of the wife where the invitation was given in pursuance or furtherance of the matrimonial consortium, would not be trespassing; but see Coles-Smith v Smith [1965] Qd R 494 where the defendants entered H’s bedroom at 2 am to accuse him of adultery, held to be trespassers because their activities were not covered by the cloak of W’s right to consortium.

12.

If the defendant has not entered, it will normally be impossible, then, to use an action in trespass as a means of settling a dispute in title.

13.

Perhaps anything having size or mass, including gases, flame, beams from searchlights, mirrors, but not vibrations. See Gregory, ‘Trespass to Negligence to Absolute Liability’ (1951) 37 Va L Rev 359.

14.

Pickering v Rudd (1815) 4 Camp 219 at 220 per Lord Ellenborough.

15.

Westripp v Baldock [1938] 2 All ER 779, aff’d [1939] 1 All ER 279 (CA).

16.

Simpson v Weber (1925) 133 LT 46.

17.

Beckwith v Shordike (1767) 4 Burr 2092.

18.

Lavender v Betts [1942] 2 All ER 72. But not the defendant’s turning off the gas and electricity at the meter in the cellar, for the purpose of evicting the tenant of rooms on an upper floor, because the consequence is indirect: Perera v Vandiyar [1953] 1 All ER 1109 (CA).

19.

Smith v Stone (1647) Sty 65.

20.

Watson v Cowen [1959] Tas SR 194.

21.

Hogan v AG Wright Pty Ltd [1963] Tas SR 44.

22.

Pollack v Volpato [1973] 1 NSWLR 653.

23.

Lawlor v Johnston [1905] VLR 714.

24.

League Against Cruel Sports Ltd v Scott [1986] QB 240; [1985] 2 All ER 489.

25.

In Ross v Town of Victoria Park [1999] WASC 91, since the original act of constructing a stormwater pipe could not be challenged due to a time-bar, leaving the pipe there was not a continuing trespass.

26.

If the plaintiff seeks an injunction, the court has a discretion to award damages in lieu of such injunction, which also takes into account the likely future damage. This, in effect, settles the price which the defendant must pay for the right to commit the trespass in the future, and no subsequent action will lie in respect thereof: Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 (HL). Nevertheless, prima facie the landowner is entitled to an injunction even where the acts complained of cause no harm: Patel v WH Smith (Eziot) Ltd [1987] 2 All ER 569.

27.

Minter v Eacott (1952) 69 WN (NSW) 93.

28.

Re Bulli Coal Co (1899) 20 LR (NSW) Eq 91.

29.

Clegg v Dearden (1848) 12 QB 576 at 601.

30.

Holmes v Wilson (1839) 10 Ad & El 503. Ongoing excavations extending into and beneath the plaintiff’s land, into which jacks have been inserted to support the walls would qualify as a continuing trespass: see Burton v Spragg [2007] WASC 247.

31.

Such as building a wall on it or constructing a road on it by the laying of tarmac: Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) at [29]–[36] per Warren J.

32.

Minister of Health v Bellotti [1944] KB 298; 1 All ER 238; cf the conflicting obiter dicta of Lord Ellenborough and Bayley J in Winterbourne v Morgan (1809) 11 East 395 at 402, 405 respectively.

33.

(1937) 56 CLR 605.

34.

Ibid at 631 per Dixon J. What is reasonable time depends on the facts of a case: Minister of Health v Bellotti [1944] KB 298; Downing v WIN Television (NSW) Pty Ltd [2010] NSWSC 1132 at [53].

35.

Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 at 105–6 per Helsham J, following Latham CJ in Cowell’s case.

36.

See Hardie Finance Corp Pty Ltd v Ahern (No 3) [2010] WASC 403 at [225] per Pritchard J. The test is based on a reasonableness standard: R v Fraser [2005] 2 NZLR 109 at 112.

37.

But the police generally have no greater rights than other members of the public: R v Pou [2002] 3 NZLR 637 at 641.

38.

Robson v Hallett [1967] 2 QB 939 at 953–4; 2 All ER 407 at 414 per Diplock LJ. The implied licence does not authorise going from a front door to a back door where there are physical impediments (such as trees and shrubs) to so doing: M v J [1989] Tas R 212. In Brunner v Williams (1975) 73 LGR 266, an inspector was held to have no implied licence to enter the plaintiff’s garden to see whether a coal dealer was infringing the Weights and Measures Act 1963 (Eng); all he might lawfully do was go to the plaintiff’s door and ask permission. Would a police officer have an implied licence to reach through a window if the door was locked? See Gregory v Gollan [2007] NZHC 1437.

39.

Thompson v Vincent [2005] NSWCA 219 at [123].

40.

This does not include random checking of a driver whose prior driving has given no cause for suspicion; Howden v Ministry of Transport [1987] 2 NZLR 747 (CA) at 751.

41.

See O’Connor v Police [2008] NZHC 1588 at [16] per Fogarty J. But cf Shattock v Devlin [1990] 2 NZLR 88 at 106, per Wylie J; Smith v Police (1996) 14 CRNZ 480; Bourke v Bourke HC Christchurch AP 191/96, 16 May 1997.

42.

A licence may also be impliedly withdrawn, as in R v Ratima and Warren [1999] NZCA 307 where, after knocking on the front door, a police constable then walked along a path to a locked gate bearing the notice ‘No Entry—This Gate is Locked’.

43.

Robson v Hallett [1967] 2 QB 939 at 953–4; 2 All ER 407 at 414 per Diplock LJ.

44.

Halliday v Nevill (1984) 155 CLR 1 at 6–7; 57 ALR 331 at 333.

45.

For example, as where legislation imposes an obligation on a public servant to enter property for a particular purpose. It is not an incontrovertible legal proposition that police officers always have an implied licence to enter privately owned property: Munnings v Barrett (1987) 5 MVR 403.

46.

[1928] 1 KB 421 (CA). Presumably, the defendant’s successor in title to the chattels would also be liable in trespass for knowingly allowing them to remain on the plaintiff’s land. This decision illustrates the point that, since the continuing trespass gives rise to an action in trespass de die in diem, at least until corrective steps are taken, the plaintiff in such an action can be anyone with exclusive possession of the land (the original licensor in Konskier’s case had by this stage lost exclusive possession).

47.

Barker v R (1983) 153 CLR 338; 47 ALR 1; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 460–1 per Young J; TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 at 732 per Eichelbaum CJ; R v Fahey [2000] NZCA 48.

48.

(1923) 23 SR (NSW) 207 at 214 per Cullen CJ. As the court made clear, this was not a question of treating the defendant as a trespasser ab initio, that doctrine being limited to abuse of some authority given by law.

49.

(1968) 69 SR (NSW) 311.

50.

Ibid at 330. In Barker v R (1994) 54 FCR 451 at 474; 127 ALR 280 at 299 (FC) it was held that a woman who clandestinely recorded a conversation while eating and drinking at a restaurant did not thereby become a trespasser.

51.

Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584.

52.

Ibid at 606.

53.

Ibid at 598–9.

54.

See TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [32]–[37] per Spigelman CJ

(CA). 55.

Dougal v McCarthy [1893] 1 QB 736; Meye v Electric Transmission Ltd [1942] Ch 290. However, a mere tenant at sufferance may, it seems, be sued in trespass. See also Thompson v Earthy [1951] 2 KB 596; 2 All ER 235 (deceased tenant’s widow who remained on after his death was successfully sued in trespass). As to the demise of the ‘tolerated trespasser’ in English law, see Austin v Southwark London Borough Council [2011] AC 355; [2010] 4 All ER 16.

56.

In Commonwealth v Anderson and Nichols (1960) 105 CLR 303, the High Court held that the action in ejectment was available by the Crown in right of the Commonwealth. In Falkingham v Fregon (1899) 25 VLR 211 at 214–15, it was held that a warrant of ejectment under the Landlord and Tenants Act 1899 did not entitle a police constable to arrest an overholding tenant for trespass, but merely authorised him to turn the tenant out of possession.

57.

(1991) 171 CLR 635; 98 ALR 353. As to the merits of the decision, see Goode, ‘Trespass to Land by Police Attempting to Serve a Summons’ (1993) 1 TLJ 1. As to whether a police officer commits trespass upon entering premises uninvited to arrest a person, see Lippl v Haines (1989) 18 NSWLR 620 at 631ff, and cases therein cited. As to the position where one tenant in common gives permission, which is refused or revoked by another tenant in common, see New South Wales v Koumdjiev (2005) 63 NSWLR 353 (CA).

58.

Coco v R (1994) 179 CLR 427; Police v Dafov (2008) 102 SASR 8 (FC).

59.

Waters v Maynard (1924) 24 SR (NSW) 618. In Watson v Murray & Co [1955] 2 QB 1; 1 All ER 350 the sheriff’s officers were also held liable in trespass for opening the plaintiff’s premises for a public viewing of the goods and for affixing posters on her premises. For a rather bizarre example of trespass to land, see McLachlan v Canadian Imperial Bank of Commerce (1987) 13 BCLR (2d) 300.

60.

Richards v Davies [1921] 1 Ch 90 at 94–5 per Lawrence J.

61.

Wellaway v Courtier [1918] 1 KB 200.

62.

Holford v Bailey (1849) 13 QB 426; 116 ER 1325.

63.

Mason v Clarke [1955] AC 778 (HL); but not an easement: Paine and Co Ltd v St Neots Gas and Coke Co [1939] 3 All ER 812 (CA).

64.

In Hubbard v Pitt [1976] QB 142; [1975] 1 All ER 1056 (CA) Lord Denning held that where the surface of a pavement was vested in the local highway authority the adjoining owner could not sue for trespass to the pavement. In Randall v Tarrant [1955] 1 All ER 600 (CA), a motorist who parked his car on the highway and then trespassed on the adjoining field was held not to be a trespasser on the highway.

65.

Hyde Corporation v Oldham Ashton and Hyde Electric Tramway Ltd (1900) 64 JP 596 (CA).

66.

Sewai Jaipur v Arjun Lal [1937] 4 All ER 5 (PC); they are not thereby authorised to build lavatories underneath: Tunbridge Wells Corporation v Baird [1896] AC 434 (HL).

67.

Barker v Adelaide City Corporation [1900] SALR 29 at 33–5 per Way CJ.

68.

Liddle v Yorkshire (North Riding) County Council [1934] 2 KB 101 at 127.

69.

Hickman v Maisey [1900] 1 QB 752 (CA); similarly, Harrison v Duke of Rutland [1893] 1 QB 142 (CA) (interrupting a grouse shoot); Moule v Cambooya Shire Council [2004] QSC 50 (erecting electoral signs).

70.

Re Bulli Coal Company (1899) 20 LR (NSW) Eq 91.

71.

Di Napoli v New Beach Apartments Pty Ltd (2004) Aust Torts Reports 81-728 at [18].

72.

(1975) 133 CLR 550; 8 ALR 173.

73.

[2011] AC 380; [2010] 3 All ER 975.

74.

Ibid at [26]—imperfect in the sense that it has ceased to apply to the use of airspace above a height which may interfere with the ordinary use of land.

75.

Finlay Stonemasonry Pty Ltd v JD & Sons Nominees Pty Ltd [2011] NTSC 37 at [45].

76.

Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334; 2 All ER 343 (defendant’s advertising sign projecting 20cm into airspace above plaintiff’s shop held a trespass); Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 (projection of a crane jib suspended above the roof of her house was trespass not mere nuisance). Similarly, Barker v Adelaide City Corporation [1900] SALR 29 (electric cable suspended across a public street and at a distance of 13.5m from the ground); and Lawlor v Johnston [1905] VLR 714 (ventilating pipes on the exterior wall of a building, which pipes overhung neighbouring premises).

77.

Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479 at 486; [1977] 2 All ER 902 at 906 per Griffiths J; Schleter v Brazakka Pty Ltd (2002) 12 NTLR 76.

78.

(1987) 38 Build LR 82 at 94–5 (crane from adjoining premises passing over land without permission).

79.

(1989) 24 NSWLR 490 at 495–6 per Hodgson J; this test was applied in Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464; PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87.

80.

Davies v Bennison [1927] 22 Tas LR 52 at 56 per Nicolls CJ, approving Kenyon v Hart (1865) 6 B & S 249; Lord Blackburn in that case drew a distinction between the passage of projectiles of modern artillery which attain in the course of their trajectory exceedingly high altitudes, and shots being fired by a man holding a hand gun.

81.

Cf the dictum of Lord Ellenborough in Pickering v Rudd (1815) 4 Camp 219.

82.

Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479; [1977] 2 All ER 902.

83.

Civil Liability Act 2002 (NSW) ss 72, 73; Civil Liability Act 1936 (SA) s 62; Damage by Aircraft Act 1963 (Tas) ss 3, 4; Wrongs Act 1958 (Vic) ss 30, 31; Damage by Aircraft Act 1964 (WA) ss 4, 5; Civil Aviation Act 1990 (NZ) s 97(2).

84.

The exemption applies to all flights which are at a reasonable height and comply with statutory requirements. Ordinary liability in trespass or nuisance would presumably arise for any other wrongful activity carried on by or from the aircraft, such as deliberate emission of vast quantities of smoke that polluted the plaintiff’s land: Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479 at 489; [1977] 2 All ER 902 at 906 per Griffiths J.

85.

For an example of such liability see Southgate v Commonwealth (1987) Aust Torts Reports 80089.

86.

The ordinary common law applies to accidents caused by the aircraft while taxiing to the take-off point: Blankley v Godley [1952] 1 All ER 436.

87.

This has been interpreted as not being confined to solid objects but to include protection against drift from aerial spraying: Weedair (NZ) Ltd v Walker [1961] NZLR 153.

88.

Basely v Clarkson (1681) 3 Lev 37.

89.

Smith v Stone (1647) Sty 65; this was viewed by Gibbs J in the High Court in Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107 at 132; 14 ALR 273 at 293–4 as a principle which has been ‘established for centuries’.

90.

Public Transport Commission of NSW v Perry (1977) 137 CLR 107; 14 ALR 273.

91.

League Against Cruel Sports Ltd v Scott [1986] QB 240 at 251–2; [1985] 2 All ER 489 at 494–5 per Park J.

92.

Contra dicta (perhaps not ratio) of the Case of Thorns (1466) YB 6 Ed IV 7 pl 18.

93.

Neutral conduct by police aimed at maintaining the peace does not amount to taking part in a trespass: Thompson v Vincent [2005] NSWCA 219 at [135]ff.

94.

Doolan v Hill (1879) 5 VLR (L). (Some unknown third parties, in the dead of night, removed straw, the ownership of which was subject to a dispute between the plaintiff and the defendant, from the plaintiff’s property and left it in the road. The defendant soon afterwards removed the straw from the road.) And see Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173 (owner not liable for trespass committed by independent contractors employed to carry out preliminary building work); cf Fanigun Pty Ltd v Woolworths Ltd [2006] 2 Qd R 366 at [90].

95.

[1986] QB 240; [1985] 2 All ER 489.

96.

The plaintiff’s interest in protecting exclusive possession extends to the freedom from disturbance of those persons present with the plaintiff’s leave, at least as family members or in some bona fide domestic relationship: New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [31].

97.

This includes a mortgagee in possession: Makucha v Preslands Finance [2005] NSWSC 41.

98.

Cooper v Crabtree (1882) 20 Ch D 589 (CA); Rodrigues v Ufton (1894) 20 VLR 539 at 543–5 per Hodges J.

99.

See, eg, Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334; 2 All ER 343. However, the dominant owner of a right of way, lacking possession, may not sue in trespass: McDowall v Reynolds [2004] QCA 245 at [7].

100. Mason v Clarke [1955] AC 778; 1 All ER 914 (HL) (rabbiting rights). See also Loudon v Ryder [1953] 2 QB 202; [1953] 1 All ER 741 (CA) (plaintiff was entitled to premises under a declaration of trust merely). A beneficiary under a trust for sale may also sue: Bull v Bull [1955] l All ER 253 at 255 per Denning LJ, obiter. 101. Cousins v Wilson [1994] 1 NZLR 463 (purchaser of land unable to sue for acts of trespass committed between date of purchase and date of settlement). 102. Cruise v Terrell [1922] 1 KB 664 (CA); Lewisham Borough Council v Maloney [1948] 1 KB 50; [1947] 2 All ER 36. Whether a landlord of a tenant at will can sue third parties in trespass is undecided: Attersoll v Stevens (1808) 1 Taunt 183; Shrewsbury’s (Countess) Case (1600) 5 Co Rep 13b. 103. Marcroft Wagons Ltd v Smith [1951] 2 KB 496 at 501; 2 All ER 271 at 274 (CA) per Evershed MR; Brown v Brash and Ambrose [1948] 2 KB 247; 1 All ER 922 (CA) and Thompson v Ward [1953] 2 QB 153; 1 All ER 1169 (CA). 104. See Ruhan v The Water Conservation and Irrigation Commission (1920) 20 SR (NSW) 439 (the court allowed an action to be brought by the occupiers of a pig farm, who were in possession of the land without any proper title, their occupation being merely with the implied approval of the defendant Commission). In Pemberton v Southwark LBC [2000] 3 All ER 924 the Court of Appeal held that a tolerated trespasser has a sufficient interest to sue in trespass. 105. (1993) 30 NSWLR 441 at 444–5. Similarly, in Newington v Windeyer (1985) 3 NSWLR 555 (CA) a plaintiff who had no legal title, but had performed acts of ownership in looking after the property, was able to sue.

106. Lane v Dixon (1847) 3 CB 776; Monks v Dykes (1839) 4 M & W 567; Helman v Horsham and Worthing Assessment Committee [1949] 2 KB 335 at 347; 1 All ER 776 at 783 per Evershed LJ; R v St George’s Union (1871) LR 7 QB 90. Similarly a plaintiff who could not rely on possession under his lease from the Crown because it was void for non-compliance with a statute was held to have ‘actual possession … sufficient to entitle the party possessing it to maintain trespass against persons who have no title at all, and are mere wrongdoers’: Harper v Charlesworth (1825) 4 B & C 574 at 591 per Bayley J. The House of Lords in Street v Mountford [1985] AC 809; 2 All ER 289 has held that where the intention evidenced by the agreement between the parties was to grant exclusive possession for a term at a rent there will normally be found to be a tenancy in any case. 107. Similarly an adult son temporarily living with his mother: Markisic v Dept of Community Services of NSW [2005] NSWSC 1373 at [132]ff. It is also clear that one trespasser has no standing to sue another: Queen v Pedersen (unreported, NZCA, CA 209/04). 108. [1965] AC 1175; 2 All ER 472 (HL). As to whether a person having a perpetual right of burial in a particular grave plot may sue, see Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 429. 109. Ibid at 1232, 484, respectively. It made no difference that the deserted wife’s occupation was not exclusive as against her deserting husband. 110. See Oldham v Lawson (No 1) [1976] VR 654 (the action was brought for nuisance but the decision would hold true for trespass as well). It is, however, doubtful whether this decision is correct: see discussion in 14.33. 111. Jacobs v Seward (1872) LR 5 HL 464 at 472; Ferguson v Miller [1978] 1 NZLR 819; Proprietors of the Centre Building Units Plan No 343 v Bourne [1984] 1 Qd R 613; Greig v Greig [1966] VR 376; and holding that it was not an ouster for a tenant in common to put a lock on the gate to a field and make hay there, cf Bull v Bull [1955] 1 QB 234; 1 All ER 253 (CA). 112. In Concrete Constructions (NSW) Pty Ltd v Builders Labourers’ Federation (1988) 83 ALR 385 at 391, Morling J in the Federal Court held that a builder of a large commercial building in the centre of Sydney must of necessity be given exclusive possession of the building site. 113. (1863) 2 H & C 121. 114. Vaughan v Shire of Benalla (1891) 17 VLR 129 at 135; Street v Mountford [1985] AC 809; 2 All ER 289; Western Australia v Ward (2002) 213 CLR 1 at [504]ff, [521]; Georgeski v Owners Corp (2004) 62 NSWLR 534; Bropho v Western Australia [2007] FCA 519 at [470]ff; cf Hinkley v Star City Pty Ltd (2011) 284 ALR 154 (NSWCA). 115. Graham v Peat (1801) 1 East 244; Coles-Smith v Smith [1965] Qd R 494 at 501 indicates that Australian courts also regard this as the accepted view of the law. 116. [1946] KB 393 (CA). 117. Baker’s Creek Consolidated Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207 at 226 per Owen CJ, following the dictum of Maule J in Jones v Chapman (1849) 2 Exch 803 at 821 (in its turn approved in Lows v Telford (1876) 1 App Cas 414 at 426 (HL)). 118. Browne v Dawson (1840) 12 Ad & El 624 at 629. In Portland Managements Ltd v Harte [1977] QB 306; [1976] 1 All ER 225 (CA) it was held that if the plaintiff proves ownership and an intention to resume possession the onus is on the defendant to prove that the former is not a trespasser. 119. In South Australia and Victoria the period of adverse possession necessary to acquire possessory title to land other than unalienated Crown land is 15 years (Limitation of Actions Act 1936 (SA) s 4; Limitation of Actions Act 1958 (Vic) s 8); in the other Australian jurisdictions, and in New

Zealand, the period is 12 years (Limitation Act 1969 (NSW) s 27(2); Limitation of Actions Act 1974 (Qld) s 13; Limitation Act 1974 (Tas) s 10(2); Limitation Act 2005 (WA) s 19; Limitation Act 2010 (NZ) s 21). 120. Newington v Windeyer (1985) 3 NSWLR 555 at 563 (CA). 121. Minister of State for the Interior v R T Co Pty Ltd (1962) 107 CLR 1 at [7]; Oliveri v Jones [1999] NSWSC 154 at [25]. 122. Barnett v Guildford (Earl) (1855) 11 Exch 19; also Wynne v Green (1901) 1 SR (NSW) 40; Ebbells v Rewell [1908] VLR 261; cf Cousins v Wilson [1994] 1 NZLR 463; Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22 at 33–4 per Tipping J (both cases turning on the issue of the right to immediate possession). 123. As noted in Clerk and Lindsell on Torts, 19th ed, 2006, [19]–[26], [27], the fiction of trespass by relation was considered necessary to counter the older law which so valued ownership above possession that an owner out of possession was left remediless against a trespasser. Suppose that the effect of a proviso for forfeiture in a lease is that the lease subsists until proceedings for forfeiture are brought; the doctrine of trespass by relation would not then allow a lessor, who is entitled by the terms of the lease to forfeit it, to claim damages for the period between the act giving ground for forfeiture and the issue of the writ: Elliott v Boynton [1924] 1 Ch 236 (CA). 124. Or, as stated in Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98 (NSWCA) at [18], what is required to be valued is the pre-trespass value of the land at the time of the trespass. 125. For example, Adams v Mayor of Brunswick (1894) 20 VLR 455. (Municipality cut down road adjoining plaintiff’s property, thereby harming the land. Measure of damages was a sum of money adequate to restore land to the same position in relation to the street as it occupied previously.) 126. For example, Minter v Eacott (1952) 69 WN (NSW) 93 at 95; Public Trustee v Hermann (1968) 88 WN (NSW) 442 at 447. 127. Bushells Pty Ltd v Commonwealth [1948] St R Qd 79 (damages calculated on cost of replacing awning overruled on appeal); Heath v Keys (1984) 134 NLJ 888; measure of damages based on the cost of repair is only available when the plaintiff does in fact intend to carry out repairs: Perry v Sidney Phillips & Son [1982] 3 All ER 705 (CA). 128. Minter v Eacott (1952) 69 WN (NSW) 93; Public Trustee v Hermann (1968) 88 WN (NSW) 442; Hansen v Gloucester Developments Pty Ltd (1991) Aust Torts Reports 81-067 (all involving excavation of adjacent land, thereby causing subsidence of subject land). 129. [1971] WAR 56 (removal of soil). 130. Evans v Balog [1976] 1 NSWLR 36. 131. See Hutchinson v Davidson 1945 SC 395. 132. Watson v Murray & Co [1955] 2 QB 1; 1 All ER 350; cf Dunn v Large (1783) 3 Doug KB 335 (when defendant ejected plaintiff from inn, closed it down and sent custom elsewhere, plaintiff refused loss of sale value, but only because he did not specially plead it). Any professional fees payable to an engineer, architect or surveyor advising the plaintiff on remedial measures of restoring the land are also recoverable as special damages: Jones v Shire of Perth [1971] WAR 56 at 61. 133. See TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [103] per Spigelman CJ (CA).

134. (1971) 2 SASR 126. 135. [1963] Tas SR 44. 136. Ibid at 47 per Neasey J. 137. (2002) 54 NSWLR 333 at [103] per Spigelman CJ. 138. The court relied particularly on Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280; see further 27.15. 139. Sommerhalder v Burjan [1962] SASR 271 at 278 per Travers J; Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563 at [9]. 140. Whitwham v Westminster Brymbo Coal and Coke Co [1896] 1 Ch 894; aff’d [1896] 2 Ch 538 (CA). Cf Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246; 1 All ER 796 (CA). In Swordheath Properties Ltd v Tabet [1979] 1 All ER 240 (CA) a defendant who occupied residential premises as a trespasser was liable for damages calculated by reference to the full letting value of the premises although no evidence was adduced that the plaintiff could or would have let them, the approach also adopted in Inverugie Investments Ltd v Hackett [1995] 3 All ER 841 (PC). 141. Yakamia Dairies Pty Ltd v Wood [1976] WAR 57. 142. Wilson v Kelly [1957] VR 147; Grainger v Williams [2005] WASC 286 at [57]. 143. ‘Wilful’ includes ‘fraudulent’; whether it includes ‘negligent’ is doubtful: Wood v Morewood (1841) 3 QB 440n; Re United Merthyr Collieries Co (1872) LR 15 Eq 46; Fry J said obiter in Trotter v Maclean (1879) 13 Ch D 574 at 587 that the burden of proving wilfulness is on the plaintiff. 144. Jegon v Vivian (1871) 6 Ch App 742; Samuels JA in Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 at 481–2 described this as ‘well-settled law’ (gravel quarrying activities). 145. Martin v Porter (1839) 5 M & W 351; Morgan v Powell (1842) 3 QB 278. Plaintiffs who are unable personally to reach a seam to extract minerals may base damages on any royalties payable by a third party for permission to extract: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25. 146. Jegon v Vivian (1871) 6 Ch App 742 and AG v Tomline (1880) 14 Ch D 58 would allow the innocent defendant the profit; contra Re United Merthyr Collieries Co (1872) LR 15 Eq 46. Tai Te Whela v Scandlyn [1952] NZLR 30 held that even an innocent trespasser could not set off the value of the improvements done by him to the land; see also Caudor (Lord) v Lewis (1835) 1 Y & C Ex 427. 147. Awarded in Coles-Smith v Smith [1965] Qd R 494 (defendants entered plaintiff’s home late at night pursuant to a conspiracy with his wife falsely to charge him with adultery and to intimidate him with the object of ensuring that he offered no defence to future divorce proceedings): cf Hogan v AG Wright Pty Ltd [1963] Tas SR 44 (defendant wrongfully broke down plaintiff’s fence and consequently filly escaped, was injured and had to be put down. Held (at 49) that nothing in the circumstances warranted exemplary damages). See discussion in 27.10–27.13 on the basis for the award of exemplary damages in general. 148. Drane v Evangelou [1978] 2 All ER 437. Surprisingly, however, Devonshire v Jenkins (1979) 129 NLJ 849 held that exemplary damages were not recoverable if in fact the evicting landlord did not obtain that profit sought by the attempted unlawful eviction. 149. [1973] 1 NSWLR 653 at 655 per Reynolds JA.

150. See XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639; the High Court further held that legislation having abolished the common law rule that only one judgment can be entered against joint tortfeasors, separate judgments in amounts which differ to the extent of an award of exemplary damages can be entered against joint tortfeasors only one of whom is liable for exemplary damages. 151. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 130 per Taylor J. 152. New South Wales v Ibbett (2006) 229 CLR 638. 153. Greig v Greig [1966] VR 376 at 380–1 per Gillard J (aggravated damages awarded against defendant who installed microphone in lounge room chimney in his brother’s flat in order to record conversations of housekeeper, with whom his brother was infatuated, and whom he regarded as an adventuress); Plenty v Dillon (1997) 194 LSJS 106; corporations, being insensible, cannot be compensated for hurt feelings; Winridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 at [178] per Hall J (NSWSC). 154. TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [19] per Spigelman CJ (CA). Cf Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 (NSWSC). 155. Johnston v Stewart [1968] SASR 142 at 144–5 per Bray CJ. 156. DPP v Wille [1999] NSWSC 661 at [19] per Kirby J. 157. (1991) 171 CLR 635 at 645; 98 ALR 353 at 359; TCN Cannel Nine Pty Ltd v Ilvariy Pty Ltd (2008) Aust Torts Reports 81-931 at [18] per Spigelman CJ (NSWCA). 158. Waters v Maynard (1924) 24 SR (NSW) 618 (jury awarded plaintiff £75 damages for being shut out of his premises by trespassing bailiff); in Gazzard v Huchesson [1995] SASC 5068, damages were awarded to compensate for the diminution of enjoyment of trees which were pruned, even though they had regrown by the time of the hearing. 159. Per Griffith CJ in Turner v NSW Mont de Piete Deposit and Investment Co Ltd (1910) 10 CLR 539 at 548. 160. See Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) at [56]–[75] per Warren J, who considers whether this approach is an extension of or an exception to the compensatory principle. 161. Ibid at [79]; eg, in way leave cases, the benefit enjoyed is the actual use of the land, not the profit which the trespasser has made as a result of the trespass. 162. South Australian Co v The Corporation of the City of Port Adelaide [1914] SALR 16. 163. See Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 (builder, whose licence to build was revoked by property owner, sought to restrain latter from employing another builder to complete the work. Injunction refused on the basis that here the ordinary remedy, viz, damages, would be adequate compensation); Blacktown City Council v Sharp [2000] NSWCR 339, at [14]. 164. For example, Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457. 165. Lawlor v Johnston [1905] VLR 714 (overhanging pipes); Tipler v Fraser [1976] Qd R 272 (continued unlawful use of property for vehicular access); Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 (overhanging crane); Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 38 Build LR 82 (oversailing cranes). 166. Reliance Finance Corp Pty Ltd v Orwin, Walshe and Ward [1964–5] NSWR 970 at 975–6 per McLelland CJ in Eq, citing Kerr on Injunctions, 6th ed, 1927, p 93.

167. Bracewell v Appleby [1975] Ch 408; 1 All ER 993 (holders of right of way sought to restrain defendant from using right of way. Injunction refused on the basis that defendant would then have had no access to his land-locked new house). But quaere whether court should by an award of damages put the defendant in the position of a person entitled to an easement of way: Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 38 Build LR 82 at 101 per Scott J; Behrens v Richards [1905] 2 Ch 614 (substantial landowner refused injunction to prevent local inhabitants from entering his land, as had been their custom for generations). 168. Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 at 472. 169. Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411 at 413 per Stamp J. But in Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 it was held that the act of sitting on a tombstone did not justify an injunction preventing screening of a film in which the action was recorded (at 429). The defendant’s needs are not a decisive factor: Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52 at [28]. As to whether hardship may be taken into account, see Bendal Pty Ltd v Mirvac Projects Pty Ltd (1991) 23 NSWSC 464 at 472 (no); PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 at [58]ff (yes). 170. John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P & CR 104 at 107 per Walton J. Similarly LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 497 per Hodgson J. 171. Per Sir George Jessel MR in Eardley v Granville (1876) 3 Ch D 826 at 832. 172. [1974] Qd R 1. 173. For example, Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411 at 415. 174. In Tipler v Fraser [1976] Qd R 272 the injunction was suspended for a period of six months to enable the defendants to execute necessary works on their own land. 175. This was the practical effect of suspension in Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411. Some reservations as to the correctness of that suspension was expressed by the Court of Appeal in Charrington v Simons & Co Ltd [1971] 1 WLR 598, while Walton J in John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P & CR 104 at 107–8 said it was wrong. 176. (1986) 4 NSWLR 457. (A television reporter and camera crew trespassed upon business premises to interview an investment adviser, whose many dissatisfied clients had complained about him. Allegations were made that the reporter had harassed people on the premises to get his story, while the crew filmed not only the lobby but other parts of the premises.) 177. (1986) 4 NSWLR 457 at 463–4. 178. Ibid at 465. 179. In this regard adopting the views of Sir John Donaldson MR in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 at 898 (CA). 180. (1986) 4 NSWLR 457 at 463–4. 181. [1988] 2 Qd R 169; see also Heritage Real Estate Pty Ltd v ABC (SC(NSW), Sharpe J, 21 July 1992, unreported) and Rinsale Pty Ltd v ABC (1993) Aust Torts Reports 81-231 (Qld SC) which apply the same principles as Emcorp and Willesee. See Handley, ‘Trespass to Land as a Remedy for Unlawful Intrusion on Privacy’ (1988) 62 ALJ 216. 182. (1998) 45 NSWLR 570.

183. Cf Takhar v Animal Liberation SA Inc [2000] SASC 400, where injunctive relief was refused on the basis that the damage had already occurred. 184. 45 NSWLR at 575–6. 185. (2001) 208 CLR 199; 185 ALR 1, especially at [178]–[180], [304]. 186. In Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80101 a similar injunction was refused because the plaintiff failed to demonstrate unconscionability in this sense. The court also made the point (at 68,643) that mere distress is not a sufficient ground for the grant of an injunction. Similarly, Windridge Farm Ltd v Grassi (2011) 254 FLR 87 at [122], [123] per Hall J (NSWSC). 187. Landlord–tenant relationships of this kind are customarily and appropriately treated in textbooks on real property, and not those on torts. 188. (1894) 20 VLR 539 at 544. 189. The possession of a tenant is not regarded as that of the landlord such as to enable the latter to sue in trespass: Cooper v Crabtree (1881) 19 Ch D 193. 190. The right of a purchaser to obtain possession in accordance with the terms of the contract is not a reversion: Cousins v Wilson [1994] 1 NZLR 463 at 467. 191. [1995] 1 NZLR 22 at 34. The court held further that the position of a mortgagee was sufficiently analogous to that of a reversioner to justify the same approach being taken, provided the mortgagee can show loss. 192. Per Street CJ in McCarty v North Sydney Municipal Council (1918) 18 SR (NSW) 210 at 213– 14. 193. Baxter v Taylor (1832) 4 B & Ad 72 at 75 per Taunton J. 194. [1911] 1 Ch 393 at 404 per Parker J. 195. (1918) 18 SR (NSW) 210. Similarly, excavating the plaintiff’s land and removing earth and other material: Stereff v Rycen [2010] QDC 117 at [129]. 196. Baxter v Taylor (1832) 4 B & Ad 72. For a lessee to deny access to a reversioner entitled to enter and view is also actionable on the case: Hunt v Dowman (1618) Cro Jac 478.

[page 131]

CHAPTER 6 Defences to Intentional Torts to the Person and Property

6.1 This chapter will discuss the major defences that may be available in respect of the torts so far described. It must not, however, be thought that these defences apply only to these torts. Many of them, for example, consent and statutory authority, are general defences, capable of application to almost any tort.

Mistake and Inevitable Accident Mistake as such is no defence 6.2 It has been shown in 5.10 that mistake is no defence to intentional torts. If, for example, a farmer intentionally drives a tractor onto a plot of land, the farmer’s mistaken belief, even if reasonable, that the land is his or hers will be no defence to an action in trespass. It makes no difference whether the mistake is one of fact or law. Thus when the defendant, acting for a finance company, repossessed a truck in the mistaken belief that the finance company owned the entire truck, including the engine, the defendant was held liable for conversion of the engine.1 Similarly, a railway authority was held liable in both detinue and conversion for the seizure of plant and materials belonging to the plaintiff. The court did not accept as a viable defence the fact that the authority had acted in the belief, albeit mistaken, that it had a legal or equitable right to act in this way.2 Although mistake is no defence in tort it may nevertheless be relevant, in

deciding if some other defence is open to the defendant, to know whether the defendant was mistaken as to some fact. If a police officer arrests without warrant someone who in fact has not committed a felony, and whom the officer had no ground for believing to have committed one, this is false imprisonment; if, on the other hand, the officer mistakenly believed on reasonable grounds that the plaintiff had committed an arrestable offence, the defence of lawful arrest is available: see 6.35ff. [page 132]

Inevitable accident 6.3 Mistake must be distinguished from inevitable accident, which is a valid defence. Using the example of the tractor referred to above, if the defendant shows that the tractor entered the land solely because of a defect in the steering which no amount of care could have prevented, there is no liability; for in such a case the defendant neither intended to act in such a manner (that is, enter the land which in fact belongs to the plaintiff), nor could the act have been avoided by taking due care. In Public Transport Commission of New South Wales v Perry,3 a woman who, while waiting lawfully at a railway station, suffered an epileptic fit and fell onto the railway line, was held not to be a trespasser because of the involuntary nature of her fall. In arriving at this decision Gibbs J made the point4 that a person who is lawfully on premises and who is using the premises in an ordinary and reasonable way will not become a trespasser merely because he or she falls or is pushed onto a forbidden area. The matter was thus treated as one of inevitable accident. The judge left open whether a person who enters premises involuntarily could ever be regarded as a trespasser. He cited as possible examples of trespass the case of a person who falls onto the premises from an adjoining tree, or who crash-lands there in an aircraft or who is thrown there by hoodlums. Whether such acts amount to trespass would appear to depend on whether the entry is brought about ‘entirely without fault’5 in the sense that it is not done intentionally and occurs without negligence on the part of that person. This line of reasoning was applied in McHale v Watson,6 where the defendant, a boy of 12, who had allegedly thrown a steel dart into the eye of the plaintiff, a girl of nine, was held not

liable in trespass to the person because his action was neither intentional nor negligent.7 As noted in 2.14, McHale’s case is also authority for the proposition that, once the plaintiff proves injury or damage through a direct act of the defendant, the defendant will be liable in trespass unless he or she in turn proves that the conduct in question was neither intentional nor negligent. The defendant who succeeds in doing this will in fact be pleading ‘inevitable accident’.8

Consent Distinguished from assumption of risk 6.4 It is, of course, a general policy of the common law and consistent with its individualism that one who has freely assented to conduct by another cannot sue that other for damage resulting from that conduct: volenti non fit injuria. Consent [page 133] may take two forms, either where the plaintiff consents to an invasion of his or her interests which would otherwise be a tort (this form is conveniently called consent), or a willingness on the part of the plaintiff to run the risk of injury from a particular source of danger (often called assumption of risk). This distinction between consent and assumption of risk has not always been fully appreciated by the courts, which have, on occasion, tended to use the terms interchangeably. In Bain v Altoft,9 for example, the defence of voluntary assumption of risk was held to apply to the situation where the plaintiff had consented to engage in a fight with the defendant.10 A more accurate approach was adopted by Fox J in McNamara v Duncan,11 who held that in cases of intentional trespass the Latin phrase volenti non fit injuria has an application which is different from that which it has when negligence is relied on, in that in negligence it refers to the risk of injury, whereas in trespass it refers to consent to the trespass. Consent, therefore, is particularly

important with regard to the torts already dealt with, whereas assumption of risk is especially important in negligence. The first type will consequently be dealt with here, and the other in Part III on negligence, but it must be understood that consent in the first sense is not a defence to the above intentional torts alone, and that assumption of risk also is not restricted to negligence.12

What constitutes consent? In general 6.5 It is convenient to treat consent as a defence although it will be recalled that in trespass to the person, but not in trespass to land,13 the burden of proving lack of consent may be on the plaintiff. The matter has an added complexity due to the fact that the term ‘defence’ has two meanings in the law of torts.14 It may be used broadly to describe any basis of non-liability and in so doing may take the form of traverse, confession and avoidance or an objection to a point of law.15 It is in this broad sense that consent can be regarded as a ‘defence’. The term when used in its narrower sense as a basis for repelling a prima facie case must take the form of a confession and avoidance in pleadings and here, unlike necessity, self-defence and mistake, the [page 134] term ‘defence’16 cannot be used to describe consent. Voluntary assumption of risk, on the other hand, is a defence in this narrower sense.17 Consent may be given expressly by words or be inferred by conduct. Obviously, there are difficult questions of fact here. Will an action lie against a schoolchild who hides another’s book as a practical joke? If perhaps consent may reasonably be inferred there, what if one Duntroon cadet does the same with another’s webbing immediately before an important parade? What weight will be attached to prior conduct in this regard? At what point does the voluntary consumption of alcohol negate a woman’s capacity to

consent to intercourse?18 It may be a defence to trespass to land by a child if the plaintiff has habitually allowed children to play on that land. In Balmain New Ferry Co Ltd v Robertson,19 the High Court, dismissing a claim for assault and false imprisonment, took into account the fact that the respondent had been on the premises previously and was aware not only of the existence of the turnstiles but of the purpose for which they were used. From this the court inferred consent on his part to the appellant’s entitlement to prevent him from departing via the turnstile until he paid a further penny. Consent must be to the act complained of. The lessee may have consented to the lessor’s entering the land to examine repairs made to the property but not to an assault by the lessor. The surgeon who, due to an administrative error, circumcises a patient admitted to hospital for a tonsillectomy, will be liable for an action in trespass to the person.20

Sporting injuries 6.6 Consent is a particularly effective defence to sporting injuries. A footballer consents to those tackles which the rules permit, and, it is thought, to those tackles contravening the rules where the rule infringed is framed to maintain the skill of the game;21 but not if an opponent gouges out an eye or tackles against the rules and dangerously.22 Consent in such cases is rarely given expressly but is usually implied from conduct.23 Fox J in McNamara v Duncan made the point that, because sports [page 135] differ from one another in their objectives and in what is expected of the actor, each situation must be looked at individually.24 Forcible bodily contact is part of Australian Rules Football and, consequently, sensible hurt, produced as a result of intentional acts, will be regarded as inevitable concomitants of ordinary play. On the other hand, deliberate injury, in the sense of something done solely or principally with a view to causing senseless hurt, is not justified by the rules and usages of the game. A player who deliberately and against the rules of the game injures another by a shot low to the head after the other has parted with the ball (but during the course

of the game) is liable for trespass to the person.25 As noted by King CJ in Giumelli v Johnston, this is not to say that all applications of physical force outside the rules will be actionable, but consent cannot be taken to extend to illegal and dangerous applications of force by a player who intends to cause bodily harm or who knows, or ought to know, that such harm is the likely outcome.26 On the other hand, a boxer cannot complain of being punched on the nose by an opponent. This is because, as McInerney J held in Pallante v Stadiums Pty Ltd (No 1),27 consent will normally preclude the infliction of physical violence during a game or sporting contest from constituting an assault and battery where the violence is ‘ordinarily and reasonably to be contemplated as incidental to the sport in question’ and if the violence is inflicted ‘within the spirit and intendment of the rules of that game or sporting contest’.

Effect of fraud or duress 6.7 Consent may be vitiated by the application of fraud or duress but there are difficulties in applying this rule. The courts say that consent obtained by fraud going to the quality of the conduct and being not merely collateral is no consent; therefore, consent to intercourse with another on the representation of that other that he is free from syphilis is still consent.28 But there seems no logical way of deciding when a mistake is collateral. In Papadimitropoulos v The Queen,29 the High Court, on appeal from the Court of Criminal Appeal of Victoria, held that where a woman consented to sexual intercourse in the belief, fraudulently induced by the man, that she was married to him, the man was not guilty of rape.30 The test, which the court held had been satisfied, was whether the consent had been directed to the nature and character of the act. It is true that she would not have engaged in the act of intercourse had she not believed that she was married; nevertheless this did not destroy the reality of the consent. By way of comparison, awareness of the identity [page 136] of the man and of what the physical act entails are to be regarded as formative elements and part of the nature and character of the act to which

the woman’s consent is directed. It would follow, therefore, that there will be no real consent where the defendant impersonates the plaintiff’s husband31 or where a singing teacher convinces his pupil that intercourse will improve her voice.32 The criteria advanced by the High Court go some way towards answering the question of what the plaintiff in such circumstances consents to — intercourse, marital intercourse, intercourse free from venereal disease, or any penetration. But the test does not focus on whether the mistake induced relates to that which is harmful or offensive in the act. Consent obtained by duress33 or by a show of authority is not true consent34 — for example, where a police officer, without formally arresting or charging a suspect, nevertheless uses his or her authority to ‘request’ the suspect to come to the police station.35 The problem extends to involuntarily confined mental patients who live in an inherently coercive institutional environment. It has been argued36 that these patients are never free of alternative forms of restraint or coercion and cannot reason as equals with doctors and administrators over issues such as whether they should undergo psychosurgery. The English Court of Appeal in Freeman v Home Office (No 2), in a case concerning the alleged administration of drugs by prison authorities to a prisoner without his consent, held, however, that the correct approach in these situations is for the court to be alive to the risk that in a prison setting, where a doctor has the power to influence a prisoner’s situation and prospects, what may appear, on the face of it, to be a real consent, may not in fact be so.37 Essentially, though, the matter is one of fact. The court was not prepared to accept the submission that the relationship between prisoner and prison doctor is always such that the former could never freely consent to treatment.

Consent to medical procedures 6.8 Any physical contact with an adult patient of sound mind38 who does not consent to that contact is prima facie a battery. If such a patient refuses medical treatment, that choice must be obeyed, even if, objectively, it is against the patient’s [page 137]

best interests39 and even if it results in the patient’s death40 or that of her unborn child.41 Consent need not be written and in practice will often be implied from conduct,42 for example, holding out your arm to receive an injection. Where surgery or more serious invasive treatment is contemplated, hospitals will usually require patients to sign a standard consent form agreeing to the operation or other treatment ‘the effect and nature of which have been explained to me’. The mere act of signing this form will not, of itself, afford the defence of consent; the explanation must in fact have been given.43 How detailed must this explanation be? In the United States the courts have held that what is required to avoid a charge of battery and assault is consent based on knowledge of all the facts relevant to the formation of an intelligent and informed consent.44 The English Court of Appeal has preferred the view45 that consent will not be vitiated by a doctor’s prior failure to give the patient sufficient information but only where the consent was obtained by fraud or misrepresentation as to the nature of the treatment.46 So failure on the part of the doctor or surgeon to warn the patient of the risks or side-effects of the treatment proposed will not negate the patient’s consent.47 This is not to say that a doctor may casually withhold information from a patient but that the patient’s cause of action, if any, will lie in negligence48 rather than in trespass for the breach of the doctor’s duty to give the patient proper and skilled advice.49 This approach has been endorsed by the High Court which, in the case of Rogers v Whitaker,50 held that ‘the consent necessary to negative the tort of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed’.51

Minors 6.9 Consent, to be effective, must be given by someone with the necessary legal capacity. Can consent be given by minors? In the absence of specific legislation52 governing such situations, Australian jurisdictions must look to the common law. This provides that, where a child is ‘mature’, that is, if the child is of sufficient [page 138]

intelligence and understanding to comprehend the nature and implications of the proposed treatment, the child itself can effectively consent to that treatment.53 A majority of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority54 held, moreover, that the common law right of a ‘mature’ minor to consent to treatment would be effective not only in the absence of parental consent but also in the face of their denial of consent.55 A doctor faced with a request by a young girl for contraceptive treatment (or an abortion?) might try to persuade the patient to consult her family. But should she refuse to do so, the doctor may lawfully treat her if satisfied that she had a sufficient understanding of what was involved in the treatment and its implications for her health. Gillick’s case, though not of binding authority, has exerted a practical influence in relevant Australian circles56 and has been referred to by the High Court57 in terms which recognise its persuasive authority.58 In the case of younger children parental consent will be required but once given is effective to authorise treatment beneficial to the child.59 No battery is committed by a doctor who with parental consent vaccinates a protesting four-year-old against measles, but a doctor who operates on a child in defiance of parental refusal commits a battery.60 Furthermore, while it is accepted that parental power to consent to medical treatment diminishes gradually as the child matures,61 no minor of whatever age has the absolute power, by refusing consent to beneficial medical treatment, to override parental consent and, a fortiori, that of the court (although the court should, where this does not conflict with the best interests of the minor, take the minor’s wishes into account).62 Where treatment proposed is not clearly and unequivocally beneficial to the child the High Court in Marion’s case63 has now confirmed that parental consent is insufficient to authorise that treatment. The cases have centred on the sterilisation of mentally handicapped young women.64 They make clear that where surgery is [page 139] proposed, not to deal with some immediate physical problem, such as a hysterectomy to remove a cancerous uterus, the authorisation of the court should be sought before such a serious and generally irreversible procedure is

performed or the surgeon may risk liability for battery and prosecution for criminal assault.65 A majority of the High Court affirmed66 the approach of Nicholson CJ of the Family Court in the case of Re Jane67 that the proper test was to ask whether the principal or a major aim of the procedure was nontherapeutic.68 If it was, then the court’s consent should be obtained. Accordingly, where, as in Re Jane, the issue was whether a hysterectomy should be performed on a severely mentally handicapped but otherwise physically healthy young woman of 17 in order to protect her from problems associated in coping with menstruation and childbirth, parental consent alone would not suffice and that of the court was required.69 The consent should be based on the ‘best interests of the child’ taking into account that sterilisation is ‘a step of last resort’ and that, if authorisation is given ‘it will not be on account of the convenience of sterilisation as a contraceptive measure but because it is necessary to enable [the child] to lead a life in keeping with her needs and capabilities’.70 The Family Court’s authority in this regard was extended in P v P71 where it was held that, to the extent that the Guardianship Act 1987 (NSW) would prohibit sterilisations being carried out unless to save the life of the patient or to prevent serious damage to her health, it was inconsistent with s 109 of the Constitution and thus invalid.

Persons unable to consent 6.10 Where a patient is over 18 but is incapable by reason of intellectual handicap of making a rational decision to consent to surgery or other invasive treatment the law is somewhat unclear.72 In one case an intellectually handicapped woman had become pregnant.73 Doctors caring for her wished to perform an abortion and to sterilise her. Her mother, in whose care she was, accepted that view and agreed that her daughter should undergo the operation, but in the absence of the daughter’s consent hospital consultants were unwilling to perform the operation without the protection of the court. The mother sought a declaration to the effect that the medical procedures would not amount to an unlawful act by reason only of the absence of consent. Wood J stressed that, generally, a surgeon who operates [page 140]

without the patient’s express or implied consent is liable to battery and assault even though the operation is for the patient’s benefit unless the act can be justified on some other basis.74 Where, as in the instant case, the patient could not consent, and there was no power in law for anyone to give consent, either under the provisions of the Mental Health Act 1983 (Eng) or because the court no longer exercised a general parens patriae power, doctors would in exceptional circumstances be justified in taking whatever steps good medical practice demanded. On the facts the court was prepared to grant the declaration. This is the basis on which much routine medical and dental treatment of mentally handicapped persons is already carried out. It is arguably not satisfactory where drastic and controversial procedures like sterilisation or abortion are in issue.75 In one case specific provision for treatment of the mentally ill is generally made: where patients are detained in mental institutions, legislation governing those institutions usually authorises treatment to be given without consent. Elaborate safeguards for the rights of patients may be built into the legislation. When an otherwise competent patient is temporarily incapable of agreeing to treatment, for example, in the classic emergency situation of being rushed unconscious into a casualty ward after a road accident, the surgeon carrying out immediate necessary surgery commits no battery. There is no ‘hostile’ act in relation to the patient. The surgeon may lawfully treat the patient in accordance with his or her clinical judgment of what is in the patient’s best interests and would expect the reasonable patient to agree to such treatment.76 Alternatively, the defence of necessity77 or statutory authority78 might be available. And, it has been held79 that doctors may lawfully withhold aggressive therapy designed to prolong a critically ill patient’s life, even without the patient’s consent (were he/she competent) or that of the court as parens patriae.

Consent and criminal acts 6.11 Where a criminal act is involved, the overriding interest of the state in maintaining order and punishing wrongdoers is such that it is not necessarily a defence in criminal law that the victim has consented to the criminal act.80 No similar considerations of policy prevent the courts from holding that

consent to a crime is a valid defence in tort. Accordingly, in Murphy v Culhane81 it was held [page 141] that the defence of consent might be available in respect of a crime.82 In Bain v Altoft Gibbs J went further by stating unequivocally that ‘consent is a defence to an action of trespass to the person, notwithstanding that the act consented to was illegal’.83 Adopting the view that, while people may compromise their own civil rights, they cannot compromise the public interest in the maintenance of good order,84 he held: … it is one thing to say that consent does not amount to a licence to commit a crime; it is another to say that for purposes of deciding civil liability a de facto consent should be treated as though it had never been given. I can see no reason of public policy that requires a consent to an illegal act to be treated as void in civil proceedings.

However, if the harm to which the consent is alleged to have been given is grievous, as in a case of maiming, the courts may choose to disregard that consent, as did McInerney J in Pallante v Stadiums Pty Ltd (No 1).85 One of the reasons given by the judge is purely practical — the person so injured is likely to become a charge of society; but his primary reason is one of policy, for, as he maintained, ‘as a general proposition, it injures society if a person is allowed to consent to the infliction on himself of such a degree of serious physical injury’.

Revocation of licences 6.12 The present position is to regard a licence to enter land or to do some other act there as revocable or variable.86 If the licence is effectively withdrawn (and only the occupier may do this),87 the person who entered the land with consent will become a trespasser.88 In Mackay v Abrahams a police officer who, without warrant, entered a shop to ask questions relating to the sale of revolvers was regarded as having an implied licence to enter which was revoked when the shopkeeper ordered him off the premises. Hood J held89 that a shopkeeper is entitled at any time and for no particular reason to refuse to do business with any proposed customer and to order such a person

off the premises: if this happened the licence would be revoked and the customer who refused to go would become a trespasser. However, other authority suggests that police officers who enter premises pursuant to an implied licence for the purpose of investigating a breach of the peace or another possible offence may, even after being ordered to leave, lawfully remain there, at least for a reasonable period of time, in order to prevent a breach of the peace,90 or to complete an investigation which has already begun.91 In Cowell v Rosehill Racecourse Co Ltd the High Court held92 that a licensor could revoke a licence to enter a racecourse to view the races notwithstanding an express contract to the contrary. The licensee [page 142] must be afforded a reasonable time to withdraw from the land93 and to remove whatever property brought onto it in pursuance of the licence but the licensee cannot complain of forcible removal if he or she thereafter refuses to leave the premises.94 Any such force must be limited to that reasonably necessary to effect the removal.95

Withdrawal of consent 6.13 Generally, consent may be withdrawn at any time before the action has commenced and defendants who disregard this withdrawal do so at their peril.96 In the case of medical treatment, patients also have the right to refuse further treatment which, if administered against their wishes, would make any such treatment unlawful.97 In certain situations, though, the courts have not been prepared to give effect to a subsequent withdrawal of consent. There is some authority98 to suggest that a bailee who, subject to an agreement is carrying out work on goods, and who is instructed by the bailor to stop work and to redeliver the goods, may retain possession and complete the work. Moreover, the High Court has expressed the view99 that a person who enters into a contract which necessarily involves the surrender of a portion of personal liberty for an ascertained period, cannot without the consent of the other party, by electing to put an end to the contract, become entitled at once, unconditionally and irrespective of the other party’s rights, to regain this

liberty as if he or she had never surrendered it.100

Contributory Negligence 6.14 The elements of this defence will be examined in what is obviously its most appropriate place, in negligence,101 but the question also arises whether and to what extent contributory negligence is available as a defence to intentional wrongdoing.102 Several Australian courts have rejected it as a defence in actions for conversion,103 or battery and assault;104 the High Court has yet to rule on the subject. The preferred [page 143] judicial approach in Australia is to view the matter as one of statutory interpretation. Starting from the assumption that contributory negligence was not a defence at common law in these situations, some courts have held that it is therefore not available105 as a defence under the apportionment legislation,106 since the definition of ‘fault’ in the legislation excludes apportionment where contributory negligence would not have been available at common law. Looked at in this light, whether the defence is available in modern day cases of contributory negligence ‘is not a question of (judicial) discretion but a question of statutory exclusion’.107 Some New Zealand courts have taken a different view. In Helson v McKenzies (Cuba Street) Ltd108 a woman who sued a shopkeeper in conversion when one of its servants gave her handbag which she had left there to an impostor, had her damages reduced on the basis of her contributory negligence. The court proceeded on the assumption that the apportionment legislation was applicable in such a situation, and made only a passing reference to the linkage between the legislation and the common law.109 Similarly, in Hoebergen v Koppens,110 where the court reduced the award of damages for assault in view of the respondent’s own behaviour. The court cited various academic articles both for and against the proposition but in the end seemed persuaded by an inference it drew from an earlier English decision.111 The New Zealand High Court in Dellabarca v Northern Storemen and Packers Union,112 in a case involving the torts of inducement

of breach of contract and conspiracy, declined, however, to follow Hoebergen on the basis that contributory negligence is not available as a defence to an intentional tort.

Self-defence 6.15 Self-defence and the other forms of self-help considered here and in the succeeding sections, namely, recaption, abatement, distress and the rest, are conveniently treated as defences because it is in this way that they usually concern the courts, although it is equally fitting to regard them as remedies. [page 144] If A hits B or tears B’s clothing, then prima facie A commits trespass to the person (battery) or to goods. A may be able to justify these actions by reference to the doctrine of self-defence by proving that he or she acted only to repel an attack by B.113 A must prove that, in the circumstances, it was reasonable to defend himself or herself114 and that the force used in so doing was reasonable.115 Accordingly, in Cockcroft v Smith,116 where the clerk of court sued an attorney for biting off his forefinger in a scuffle in court, Holt CJ held that in itself it was no defence that the plaintiff had first run his fingers towards the defendant’s eyes, for a man must not ‘in the case of a small assault, give a violent or an unreasonable return’. The Privy Council in Palmer v R described self-defence in the following terms:117 It is a straight-forward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common-sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances.

What is reasonable force is a question of fact in each case. As stated by the High Court in Zecevic v DPP (Vic),118 proper weight should be accorded to the defendant’s predicament which may have afforded little, if any, opportunity for calm deliberation or detached reflection. It will be material to consider whether the defendant could have escaped.119 This was certainly an

important factor in Fontin v Katapodis,120 [page 145] where the High Court considered that, instead of defending himself by attacking the plaintiff with a broken piece of glass, the defendant could have moved out of range thereby avoiding further blows — he had no need to stand his ground. Consequently, the force that he used was not reasonably necessary. Other factors are whether the defendant resisted with the most reasonable means available, whether the defendant’s act went beyond the limits of defence into the realm of pure revenge, whether the defendant continued to use violence after the danger had passed,121 and whether the attack was, or was reasonably expected to be, violent. Where the danger is miscalculated, for the defence to succeed the defendant must establish not only an honest belief in the existence of facts which might provide that defence, but also that the belief was based on reasonable grounds.122

6.16

Force used in self-defence might be justified even where it is disproportionate to the nature of the evil sought to be avoided,123 for precedent supports the proposition that the relation between the harm threatened by the plaintiff and the means employed in defence is only one factual element to be considered in deciding the general question of reasonableness.124 The test established by the High Court in Fontin’s case125 is simply whether, in all the circumstances, it was reasonably necessary for the defendant to act in such a way. In that case the court decided that the action taken in self-defence was out of all proportion to the emergency confronting the defendant because, although the only weapon available to him was a jagged piece of glass, he could have extricated himself from the situation without any resort to its use at all. The court’s reasoning illustrates the balancing process used in reaching a decision. This involves weighing up all the individual elements. The court may well have arrived at a different decision if the defendant had not had the option of moving away from the danger zone and if therefore the only means of averting the danger had been to use the broken glass. That is to say, disproportionate force might not always be unreasonable.

[page 146]

Defence of the Person of Another 6.17 A servant may justify a battery in defence of an employer126 and an employer may lawfully strike someone in defence of a servant.127 There has never been any doubt that a man may defend any member of his household.128 A wife may defend her husband and, nowadays, probably other members of her family. Children, too, may defend their parents.129 Australian130 and New Zealand131 authority leans to the view that the defence extends to the protection of other persons including strangers.132 The question in such cases is always: ‘Was it reasonable for the defendant to protect the other person in this way?’ Intervention has, for example, been sanctioned where the defendant had reasonable grounds for believing an assault on a stranger was about to take place133 and where the circumstances reasonably called for intervention in order to prevent or stop serious personal injury.134 As with self-defence, the amount of force employed by the defendant must be reasonable in all the circumstances,135 and it is conceivable that one relevant factor may be the relationship between the defendant and the person defended, that is, that one may use greater force in defence of a close relative than of a stranger. In Gambriell v Caparelli136 the court took the view that the use of reasonable force could be justified even where the belief that another person was in imminent danger of injury, though honestly held, was mistaken. If the defendant acted in order to prevent the plaintiff from perpetrating a felony jeopardising the life of a third party, that is in itself a defence137 on the authority of Handcock v Baker, and a dictum there suggests that ‘it is lawful for a private person to do anything to prevent the perpetration of a felony’.138 If the defendant goes beyond merely protecting another and chastises the attacker, then, unless the defence of discipline139 is available, the defendant is liable for that act of chastisement, because, as was stated in Saler v Klingbiel,140 ‘it is not the function of a protecting intervener to go further than protection and administer punishment’. [page 147]

Defence of One’s Property 6.18 Reasonable force may be used to defend land141 or chattels142 in one’s possession against any person threatening to commit or committing a trespass to the property. The possession must be of a kind that would enable the defendant to sue the plaintiff in trespass. Thus the captain of a cricket club who removed the plaintiff from the field could not plead that he had ejected a trespasser, because the captain had no possession of the field.143 Similarly, in Scott v Matthew Brown & Co Ltd144 the defendant was on the land merely as a result of ejecting the plaintiff by an act of trespass whereupon the plaintiff, the true owner, at once re-entered. The defendant forcibly removed him, and was held not to have sufficient possession to sue in trespass, and therefore to have no defence against the action of battery by the plaintiff. And, in Haddrick v Lloyd,145 the non-occupying owner of a house was not justified in using force to eject someone who had been invited on the premises by the tenant. If the defendant has a mere right to possess, but not possession, other defences may be available, such as re-entry in the case of land, or recaption in the case of chattels, but the defendant cannot successfully plead defence of property.146 To remain on land after permission has expired is trespass: therefore the defence is available to a defendant who ejects such a person.147 A threatened intrusion is also sufficient: if the plaintiff has taken the key of the defendant’s car and is about to enter the car, the defendant may resist this potential trespass to a chattel. As with defence of the person, the defendant who has a reasonable belief that force is essential to end the trespass may use it although mistaken in thinking it to be necessary, but the defendant who mistakenly believes that the plaintiff is a trespasser has no defence.148 What is reasonable force depends here also on the facts, though guidance may be sought from decided cases:149 If a person enters another’s house with force and violence the owner of the house may justify turning him out (using no more force than is necessary) without a previous request to depart; but if the person enters quietly, the other party cannot justify turning him out, without a previous request to depart.

[page 148] Because the law does not value interests in property quite so highly as those in the person, the use of force in defence of property is harder to justify than in the case of self-defence particularly where directed against people rather than property. Thus, it has been held unjustified to pull away a ladder on which the plaintiff was standing, although at the time the plaintiff was trespassing on the land of the defendant.150 And, although it is not permissible to shoot an animal merely because it is trespassing,151 it has been held that a person may justify shooting a neighbour’s tame pigeons found damaging the crops if there were no other practicable means of driving them off.152 Similarly, a publican had no privilege to wound a customer who merely refused to leave a public house on request after creating a disturbance,153 yet a householder was justified in defying, with a clothes prop and spade, a sanitary inspector who sought to enter land to do drainage repairs without having given the statutory notice.154 A tramp who jumps on a goods train certainly trespasses on a chattel, but may not be thrown off by the guard when the train is travelling at 60 km/h. Indeed, unless the plaintiff resists expulsion so as to bring the rules of self-defence into play, force likely to cause death or serious bodily harm will not be justifiable in defence of property. The High Court in Hackshaw v Shaw has also noted155 the danger of going to extremes in an endeavour to protect property and has reiterated the warning156 that the law, in its regard for human life,‘requires consummate caution in the person who deals with dangerous weapons’. In this case, a farmer, whose petrol had repeatedly been stolen from a bowser on his property, lay in wait one dark night, armed with two firearms, in an attempt to obtain evidence on which the police could take action. On seeing a car drive up, without lights, and a man get out and start siphoning petrol, the farmer fired two shots at the car, one of which hit a woman who was crouching, unseen, in the car. The farmer was held liable for her injuries despite the fact that she had been trespassing on his property.157 What if the thief rather than his girlfriend had been shot? On this question both the trial judge and the Full Court agreed that the issue was one of using no more force than was reasonably necessary in the circumstances, but, whereas the trial judge would not have sanctioned the shooting of a burglar unless the life of

the defendant or a member of his family was under threat,158 McInerney J in the Full Court was inclined to be more sympathetically disposed to the use of firearms. As he said:159 Much as one is disposed to deprecate resort to firearms it is difficult to see what course short of self-help was open to the appellant. He had either to submit to a continuance of the depredations or take some action on the lines of what he actually did. If the State cannot provide an adequate law enforcement or crime prevention agency, it is almost inevitable that private citizens will resort … to self-help.

[page 149] In Martin v The Queen160 a farmer who had shot at two intruders, killing one of them and seriously injuring the other, was held not to have acted reasonably.161 The court held that what was reasonable is for the jury, not the defendant, to decide, noting that to do otherwise would exonerate the defendant in all cases where disproportionate force was used, provided only that the defendant believed he or she was acting reasonably. The courts have often had to consider the extent to which a defendant could use mechanical devices or other methods to protect his or her property. No principle is set out explicitly in the series of cases, but the test here is also one of reasonableness. To deter trespassers by barbed wire or spiked railings on the confines of one’s land is reasonable and there is no liability if another is injured by them,162 but deliberately and without notice to set spring guns or any other device calculated to kill or cause grievous bodily harm is not reasonable.163

Defence of the Property of Another 6.19 Blackstone states that it is a defence to protect the property of other members of one’s household,164 and although one might expect the courts to confine this defence within narrow limits, by analogy with defence of the person of another it may be assumed that a person might also justifiably act to protect the property of a stranger or at least that of a friend or acquaintance. In Workman v Cowper165 it was held that where a person shot a dog, purporting to do so to protect other people’s property, the action would be lawful provided it could be proved that, at the time of shooting, the dog

constituted a real and present danger of serious harm from actual or imminent attack and provided also that shooting was the only practical means of averting the attack or that having regard to all the circumstances, the person acted reasonably in regarding the shooting as necessary.

Necessity Distinguished from defence of property 6.20 As a justification for a trespass, the defence of property is sometimes difficult to distinguish from the defence of necessity. Confusion is all the more likely because, in [page 150] deciding whether the defence of property or self-defence is available, one may have to consider whether the act of the defendant was reasonably necessary for that defence. The difference is that self-defence or defence of property presupposes that the plaintiff is prima facie a wrongdoer: the defence of necessity contemplates the infliction of harm on an innocent plaintiff. When, for instance, the defendant barricades his or her land against floodwater and, in consequence, the plaintiff’s land is flooded, the defence of necessity may be available to the defendant despite the fact that the plaintiff was not responsible for creating the threat of danger. Obviously, then, with the defence of necessity the law may be expected to attach a greater importance to the plaintiff’s interest, and, accordingly, to restrict the scope and parameters of the defence.166

Nature and scope of the defence 6.21 Some intentional tortious acts may be justified if they are necessary for the preservation of life167 or human safety or for the protection of property regardless of whether or not the action taken achieves the desired objectives.168 In order to raise the defence two criteria must be satisfied:

1. there must be an actual situation of imminent danger or, at least what to a reasonable person seems to be so; and 2. the steps taken must in the light of the facts be reasonably necessary. Because the defence of necessity involves infringing the rights of innocent third parties, the courts have tended to construe these requirements strictly.169 In Southwark London Borough Council v Williams170 the English Court of Appeal restricted the application of the defence to urgent situations of imminent peril and refused to allow it to homeless individuals who had squatted in empty houses belonging to a local authority. Lord Denning MR made the point171 that: … if homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut … The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good.

[page 151] What are reasonable measures depends on the circumstances prevailing at the time of the tortious actions called into question.172 Presumably actions involving trespass to goods or to land will always be justifiable in cases where human life is in danger, for, as Devlin J said in Esso Petroleum Co Ltd v Southport Corporation:173 The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property.

As this statement indicates, what occurs in assessing the defence is a balancing of harms; the harm sought to be avoided must appear to be at least equal to, if not greater than, that inflicted. Because of this, whether one may ever intentionally take a life on the ground of necessity is unclear. Authority is lacking but on analogy with the criminal law174 such an action would not normally be sanctioned.175 However, the defence succeeded in two recent cases176 involving applications to the courts to separate conjoined twins, in circumstances where the surgery would accelerate the death of one of them. The approach taken in each case was that, given all the facts, including the

possibility that both twins might die without the operation, the need to save at least one of the twins outweighed the evil to be inflicted on the other. Arguably, necessity may justify inflicting slight physical injury in order to prevent severe physical injury or death. It may also, depending on the circumstances, justify detaining those who are a danger or potential danger to themselves or others.177

6.22 Necessity operates as a defence in both the public and private sectors but what is regarded as a reasonable measure in the former might not be acceptable if done in the latter. Public necessity involves invading the rights of private individuals in order to protect the community at large. Here, as Dixon J stated in Shaw Savill and Albion Co Ltd v Commonwealth178 ‘the law has always recognised that rights of property and of the person must give way to the necessities of the defence of the realm’. So it has been held that a citizen might lawfully enter another’s land to erect fortifications for the defence of the realm,179 or destroy privately owned buildings in order to save [page 152] a town from fire.180 In the Esso Petroleum case the discharge of a cargo of oil into a river estuary by the ship’s master in order to prevent the tanker breaking her back was held to be a necessary measure in the interests of the safety of the crew, and one which afforded a ‘sufficient answer’ to a claim based on trespass or nuisance.181 Public necessity might also excuse not only trespasses on but even destruction of private property by police acting in the course of their duties to protect members of the public182 or to capture dangerous criminals.183 Whether compensation is payable to the victims of acts committed because of public necessity is obscure.184 Private necessity comes about when the defendant invades the legitimate interests of the plaintiff in order to protect persons or property (either his or her own or that of someone else) against the threat of imminent harm. Perhaps the most remarkable illustration in last century of the scope of this defence is Leigh v Gladstone,185 where a suffragette prisoner who was fasting was forcibly fed through the mouth and nose by prison officers: she sued them for battery. It was held to be a good defence that the forcible feeding

was necessary to save her life. Such a defence would be unlikely to succeed nowadays.186 The issue is increasingly being looked at in the context of the ‘right’ of self-determination187 of the patient and while a doctor’s primary duty is to offer adequate and skilled treatment, the patient is regarded as having the right not to accept that offer even though this will inevitably result in the patient’s demise.188 The decriminalisation of suicide is further evidence that the law has recognised the competent patient’s right to refuse to accept the offer of food or medical treatment, even if by so doing the patient may die. The proper function of the defence of necessity in the context of medical treatment is to justify emergency procedures carried out on a patient incapable at [page 153] the time of giving any consent.189 Some latitude by the courts in defining incapacity, perhaps to disregard a hysterical refusal of treatment by a feverish or acutely ill patient, may well be expected.

6.23 Where the defence is available one may do what is necessary for the protection of person or property even though the consequence is that an innocent person suffers a loss.190 This would, for example, entitle the defendant to protect his or her property against a threatened flood even though flooding of a neighbour’s land ensues.191 It has also been held to be justifiable to divert locusts from one’s land although the result is that they damage the crops of one’s neighbour instead.192 The defence extends to persons acting out of a sense of altruism. In Proudman v Allen the court described the situation in the following terms:193 … the immunity for the consequences of such acts of interference is not limited to persons having an interest in the chattels concerned or having a duty to preserve them, but extends to everyone who acts reasonably in a real emergency for the purpose of saving the goods of another from damage or destruction, whether he derives or is likely to derive any pecuniary advantage from the action or not, or is fulfilling any legal obligation.

Where, however, the owner of chattels or other property is aware of the danger but does not act to prevent it, there is some authority194 to suggest that the altruistic volunteer with no personal interest will not be able to plead necessity to excuse any tortious conduct in his or her efforts at protection.

This denial of the defence is understandable where the defendant knows of the owner’s attitude but should not otherwise be allowed to affect the situation. The defence of necessity will also fail where the act that the defendant relies on to avert the threatened harm is itself negligent. This is illustrated in Rigby v Chief Constable of Northamptonshire195 where the police were held responsible for firing a CS gas canister into the plaintiff gunsmith’s shop to flush out a dangerous psychopath without ensuring the availability of adequate firefighting equipment. The police were aware that the gas canisters were liable to become hot and to ignite the inflammable powder that the psychopath had spread on the floor. This happened and the shop was burned out. The court held that necessity was a good defence to trespass in such an emergency, but that the police were nonetheless liable in negligence for their failure to ensure that they had sufficient firefighting back-up when the canister was released onto the plaintiff’s property. Although the court in effect treated the [page 154] issues of trespass and negligence separately, holding that negligence on the part of the defendant would override the finding of necessity, the judgment may also be seen as reflecting the view that negligence as to the manner of the defendant’s act will render the measures taken by the defendant unreasonable and on this basis the defence must fail.

Recaption of Chattels 6.24 It is a defence to an action in trespass that reasonable force was being used to retake chattels which were being wrongfully withheld196 from the defendant. Blades v Higgs197 establishes that the servant of the owner of goods who uses reasonable force to retake them (after a demand for their return has not been complied with) from one who has bought from the person who stole them has a defence to an action of battery brought by the buyer.198 This

decision was criticised by a majority of the New South Wales Court of Appeal in Toyota Finance Australia Ltd v Dennis199 as unnecessarily encouraging ‘forcible, perhaps violent, redress’ but the policy reasons200 for allowing reasonable use of force in such circumstances, primarily to secure an effective remedy, remain persuasive. And, in Patrick v Colerick201 A, entering B’s land to retake goods of A which B had wrongfully taken onto B’s land, had a defence to trespass to land. But is it a defence to enter the plaintiff’s land to retake goods that were there by accident or which were placed there by a third person? In the latter instance is it material whether the act of the third person was felonious? In Huet v Lawrence202 protection was extended to the agent of a co-owner of a motor truck who had entered the plaintiff’s property without permission and removed the gates in order to effect a peaceable removal of the vehicle, in circumstances where the plaintiff had actively assisted the other co-owner in excluding the first co-owner from the common property by consenting to it being placed on his land. Moreover, in Cox v Bath,203 recaption was successfully pleaded in defence to an action in trespass to land where A had entered to recapt goods originally brought onto B’s land by C. The court regarded the particular factual situation as analogous to that in Patrick v Colerick [page 155] and so within the scope of the legal principle enunciated in that case. It did not decide whether the defence of recaption would be available where an innocent landowner has unreasonably refused requests for the return of the goods.204 Anthony v Haney205 probably206 decides that entry on land to recapt cannot be justified unless the defendant explains the circumstances in which his or her goods came to be on the land.

Re-entry on Land 6.25 It is a defence to an action in trespass to use reasonable force to eject from land in one’s possession a person who no longer has a right to remain there. However, a landlord who enforces a right of re-entry against a tenant of

a dwelling-house otherwise than by taking judicial proceedings acts unlawfully207 and will presumably have no defence to an action in trespass. If the evicted person is neither a tenant of a dwelling-house nor somebody entitled under the terms of a contract of employment to exclusive occupation of a dwelling-house even though not a tenant, such a person may be evicted by an owner using reasonable force.208 An owner who determined a licence and then evicted the licensee with reasonable force, or who re-entered business premises on the determination of a lease, would have a defence. The owner is required first to ask the tenant to leave and to give the tenant a reasonable opportunity of doing so.209 The right of re-entry extends to allowing a landlord to remove a former tenant’s goods after the determination of the tenancy where the latter fails to do so, although the exercise of this right might be curtailed where the resulting loss to the tenant is wholly disproportionate to the inconvenience that would be suffered by the owner were the goods to remain on the premises. It would seem that the owner’s act in removing the goods must, in all the circumstances, be reasonable.210

Abatement of Nuisance 6.26 It is a defence to an action in trespass that the act was done to end a nuisance211 to the defendant for which the plaintiff was responsible. In Lemmon v Webb212 the House of Lords held that an occupier could lawfully remove those branches of a neighbour’s tree which projected above the occupier’s land and interfered with the [page 156] growth of the occupier’s trees. Similarly, the occupier may remove an obstruction to his or her right to light or to the flow of a natural stream. It should, however, be remembered that abatement is a right (which may be exercised without recourse to legal process) and not an obligation. Accordingly, instead of availing themselves of it, defendants may prefer to seek an injunction compelling the plaintiff to remove the nuisance.213 Abatement is also regarded as ‘a remedy which the law does not favour’,214 and this must be kept in mind in considering undecided questions about its

scope.215 Since in the abatement of the nuisance unnecessary damage must not be done, it follows that ‘where there are two ways of abating a nuisance, the less mischievous is to be followed unless it would inflict some wrong on an innocent third party or the public, and previous notice is given when necessary’.216 In line with this reasoning it has been held that when it involves entering on another’s land abatement will require strong reasons to justify it.217 Notice need not precede abatement if no entry is made on the land of the plaintiff218 or, probably, if the matter is so urgent that it is reasonable for the defendant to enter the land without giving notice219 as, for example, where there is immediate danger to life or health so that it would be unsafe to wait.220 Notice is required where the plaintiff has not created the nuisance on the land but derives title to that land from the creator.221 Beyond that the law is doubtful. In Perry v Fitzhowe222 it was held that, irrespective of whether notice was given, one could not abate a nuisance by pulling down a house in which persons were actually present, because a breach of the peace would be likely to ensue. While damages are recoverable for harm or injury caused by a nuisance, it was held in Young v Wheeler223 that the costs of abatement per se are not recoverable. The situation may be different in relation to claims for costs by public authorities when abating a public nuisance.224

Distress Distress for rent 6.27 The circumstances in which a landlord may lawfully enter and seize the property of a tenant are conventionally and properly regarded as matters falling [page 157] within the scope of real property and will not be dealt with here.225 It is sufficient to note that this common law right has been abolished or restricted

by legislation throughout Australia.226

Distress damage feasant 6.28 This form of distress,227 though not unlike distress for rent, has enough affinity with tort and its defences to merit consideration here. This remedy allows a chattel, which is unlawfully228 on the land of another, to be seized there229 and detained until the occupier has been compensated for the wrong. The cases used to be chiefly concerned with straying animals,230 but one can envisage a farmer who distrains an airliner which has made a forced landing on the farm hastening the payment of compensation by refusing to allow the airline company to enter the land.231 Cases in recent years have typically involved the distraining of illegally parked motor vehicles. The object of the remedy is twofold: (i)

to prevent the animal or other chattel causing further damage; and

(ii)

to obtain speedy compensation for damage already done.

The remedy, though, is not without its limitations. One of these is that the thing distrained must not be in actual use. That is to say ‘if the thing is at the time of the distress in the possession and under the care of the owner of it and being used by him then there may be no distraint’.232 This prohibition stems from the perceived need to prevent a breach of the peace which might occur were seizure to take place in such circumstances.233 So, where a trespasser was standing on a ladder while attempting to nail a board to his house which adjoined the defendant’s land, the defendant was not permitted to seize the ladder.234 Whether the plaintiff’s use or control over the chattel is such as to preclude the exercise of the remedy by the defendant was held in Swenson v Drayton Shire Council235 to be a question of fact which depends for its answer on the particular circumstances of each case. It appears that purely nominal use or control will not be enough to defeat the remedy. It has, for example, been held lawful to distrain a flock of sheep which were simply stated to be in the charge of a shepherd on the basis that the shepherd might at the time of the distress have been standing half a mile away.236 And the view has been taken that a horse when ridden may not be distrained,237 although one which is only being led may be.

[page 158] In Jamieson’s Tow & Salvage Ltd v Murray238 the remedy was denied to a towage company acting as agent for the owners of a parking lot. It was held that they could not justify on the basis of distress damage feasant towing away an illegally parked motor car when the owner was still in it as to do so ‘carried with it a genuine risk of a breach to the peace’. Whatever the tort which has resulted in the object being on the land, the distress is justifiable, although it is uncertain whether in the case of a tort actionable per se damage must have been caused as a result of the presence of that object to the land.239 Any interest in land is enough to justify the seizure.240

Replevin 6.29 Whenever chattels are taken by one person out of the possession of another by means of a wrongful distress or other judicial process, the latter may by way of the summons action known as replevin seek the provisional restoration of the goods, pending the determination of the dispute about the right to the goods.241 The rationale underlying replevin, as Coleridge J explained in Mennie v Blake, is that where peaceable possession has been disturbed by a distress or by a strong hand, ‘the law should interpose to replace the parties in the condition in which they were before the act done, security being taken that the right shall be tried, and the goods be forthcoming to abide the decision’.242 The remedy is not available against someone who has merely wrongfully detained goods without taking them from the possession of the plaintiff. It is available where the distress is levied under a warrant and probably extends to takings other than by way of judicial process.243 Of course, if the distress is not proved to be illegal, replevin is not available.244 Anybody in possession, including a bailee, may institute the action.245 The claimant in replevin should apply to an officer of the court for a warrant for the restitution of the goods on the claimant’s giving security by way of bond or deposit that he or she will prosecute an action of replevin and, if he or she should lose, return the goods to the defendant. The claimant, if

successful, besides keeping the goods, may recover damages and costs (including the expenses on the bond). The damages recoverable include not only compensation for loss of the goods but also for injury to credit and trading reputation;246 the ordinary rules of remoteness of damage apply. [page 159]

Discipline 6.30 Discipline is included in this section on defences to intentional torts even though it involves the application of force neither in self-defence nor in the prevention of crime but simply to punish the offender. Discipline as a defence at common law has gradually been whittled down to the point where the sanction given by the common law to those in authority disciplining adults subject to their authority is now virtually a matter of legal history alone. Such trespasses, whether they assume the form of battery or false imprisonment, must now generally be justified by statutory authority, for example, the legislation governing the control of prisoners or intellectually handicapped persons confined in institutions. Moreover, the notion that a husband might justify a trespass to his wife on the grounds that he was exercising disciplinary power over her has been described as ‘obsolete’.247 Exercise of disciplinary powers remains a defence to an action in tort only in relation to children and the occasional case of passengers on public transport.

Children By parents 6.31 Save in the case of injuries inflicted before birth where children are generally excluded from suing their mothers,248 children are not prevented from suing their parents even while they remain minors.249 It was for many years presumed, on the other hand, that a parent could justify an assault and battery to a child by proving the use of reasonable force by way of correction.250 This presumption is incorporated into the Criminal Codes of Tasmania,251 Western Australia252 and Queensland.253 It is worthwhile

emphasising, though, that the parental power of correction is contained within strict limits — under the Codes a parent may use only such force ‘as is reasonable under the circumstances’. The courts, meanwhile, have stated that not only must the punishment be moderate and reasonable, but, additionally, it should reflect current community standards,254 must bear a proper relationship to the age, physique and mentality of the child and regard must be paid to the instrument with which it is implemented.255 Thus, while the court might sanction the caning of a persistently disobedient but otherwise healthy 14-year-old son, it would regard as unlawful any physical punishment except, perhaps, of the very lightest description meted out to a baby daughter of 19 months.256 Presumably, the right to discipline includes the right to detain where this is reasonable in the circumstances. It is suggested that whereas a parent who locked up a 12-year-old daughter at night to [page 160] prevent her from associating with bad company might have a defence to an action of false imprisonment, a parent who detained a 17-year-old daughter whereby she was prevented from sitting a university examination would have no defence.

By schoolteachers and others responsible for their training and education 6.32 At common law head and assistant teachers, both at boarding and day schools, had the right to use reasonable force257 to correct children under their tutelage.258 A more serious breach of discipline was necessary to justify any detention or locking up of children.259 This disciplinary power, where it still exists, may also afford a defence to trespass to goods, as where a teacher removed a pocket book from a student in the belief that it would identify the ringleaders in a school conspiracy to disturb order.260 Correction may be administered (even at a day school) for acts done outside school affecting school discipline.261 The essential feature of this defence is that the force used must be reasonable262 in the circumstances — presumably the nature of the offence,

the age and physique and possibly sex of the child, his or her past behaviour, the nature of the punishment, the injury inflicted, are all material considerations. It might also be relevant to take into consideration the motive and disposition of the offender, and the influence of the child’s example and conduct on the child’s peers.263 The courts have made clear, though, that if the bounds of moderation either in the manner, the instrument, or the quality of the punishment are exceeded, the excessive violence is unlawful and the chastiser will be answerable for that excess. It matters not, on these occasions, that parental consent had been sought and given.264 The punishment will also be unlawful if it is administered ‘for the gratification of passion or of rage’.265 It may be that, consistent with the change of public opinion on the matter, the lawful limits of this disciplinary power are narrower than hitherto — a moderate box on the ear of an unruly 10-year-old causing deafness has been held unjustifiable.266 Likewise, public opinion today is less likely to defer quite so readily to the teacher’s view concerning the need for discipline as it has done in times past. The means of discipline employed must also be justifiable in objective terms. However, as the basis of the defence is the need to maintain order in the particular organisation responsible for the training [page 161] of the child, school rules and parental instructions are factors to be taken into consideration when deciding what is reasonable. Should these be in conflict it will be up to the court to decide which should reasonably prevail.267

6.33 It had, at one time,268 been thought that the teacher’s powers of chastisement were derived by way of delegation from the parent. One effect of this view was to protect the government from vicarious liability arising out of claims against the teacher — this being incompatible with the source of the teacher’s authority.269 Prendergast CJ, of the Supreme Court of New Zealand, in Hansen v Cole270 attributed this view to a passage in Blackstone’s Commentaries271 but said that Blackstone, when writing, had in mind not the modern system of compulsory education but only the system of education prevailing at that period. The Chief Justice noted several different sources of authority: the parent, he said, may contract privately with the tutor, in which

event the contract itself might exclude or include corporal punishment. Where, by comparison, the child is sent to a private school, the parent tacitly submits the child to whatever reasonable modes of correction accord with the practice and regulations of the school; here the authority might be delegated. At a public school, however, the authority arises not out of any delegation but out of the relationship of teacher and pupil, the necessities of the situation stemming from the underlying provisions of the education legislation. In 1965 the High Court of Australia in Ramsay v Larsen discarded the notion of delegated authority and held that, in state schools at least, a schoolteacher’s power of reasonable chastisement arises ‘by virtue of the nature of the relationship of schoolmaster and pupil and the necessity inherent in that relationship of maintaining order in and about the school’.272 Furthermore, ‘the responsibility of the Crown for any civil wrong which the teacher may commit against a pupil depends on the statutes under which the Government establishes and maintains schools and appoints and controls the headmasters and teachers working in them’.273

Passengers in public transport 6.34 The captain of a ship may use reasonable force against anyone on the ship who commits ‘some act calculated in the apprehension of a reasonable man to interfere with the safety of the ship or the due prosecution of the voyage’,274 provided also, it seems, that the captain believes it necessary for that purpose.275 A captain was not therefore justified in detaining a passenger in a cabin for a week because the passenger thumbed his nose at the captain and refused to apologise.276 [page 162] The cases traced have only been concerned with ships, but the same defence is probably available to captains of aircraft,277 and, though perhaps in a restricted class of event, to those in charge of rail and road transport.

Arrest

6.35 Arrest constitutes an absolute restriction on a person’s freedom of movement.278 Nonetheless, if lawful, it will afford a defence not only to a charge of false imprisonment but also to one of battery and assault, where physical contact is employed. Conversely, unlawful arrest may justify action which would otherwise be a battery by the person resisting arrest. It is arguably the most important in practice of all the defences discussed in this chapter.

How arrests may be made By the police with a warrant 6.36 The major advantage of using a warrant to effect an arrest is that a police officer who arrests a person under a warrant acts lawfully and commits no trespass. A study carried out by the Australian Law Reform Commission279 noted nonetheless that police did not generally employ warrants280 other than in ‘all points alert’ searches for major identified offenders or, when not under pressure to make an arrest, to ensure the legality of the arrest in marginal cases. To afford protection in tort to the arresting officer, the warrant must be regular in form.281 If, for example, it is not signed by a qualified justice or fails to name or otherwise identify the alleged offender or does not specify the cause of arrest,282 the warrant will be unlawful. Even if the warrant is good, the officer is protected only when acting in obedience to it: an officer who arrests the wrong person283 or acts in excess of jurisdiction or fails to produce the warrant on demand is liable.284

Without a warrant 6.37 At common law Both the police and private citizens have limited powers of arrest without warrant at common law. Anyone may arrest285 without warrant a [page 163]

person who is committing286 a breach of the peace,287 or who, having committed such a breach, is reasonably believed to be about to renew it,288 or where an imminent breach is reasonably apprehended.289 A breach of the peace290 in this context is a violent offence291 or one likely to cause an immediate disturbance of public order.292 Additionally, the common law allows for the arrest of someone found committing or attempting to commit, or reasonably suspected of having committed treason or felony293 but not a misdemeanour; however, this rule is virtually obsolete, as all jurisdictions other than New South Wales have abolished the distinction between felonies and misdemeanours.294

6.38 Under statute A wide variety of legislation in Australia at both state and federal levels has resulted in a substantial incorporation and in some areas an extension of the common law powers of arrest without warrant.295 In some states, such as Victoria, the common law in this regard has been superseded completely by legislation.296 The legislation pertains in large measure, but is by no means limited, to the powers of arrest available to police officers. The Customs Act 1901 (Cth) s 210, for example, empowers customs officers to effect such an arrest for certain breaches or suspected breaches of that Act, while the Criminal Law Consolidation Act 1935 (SA) s 271 permits private persons (such as store detectives) to arrest [page 164] without warrant persons found in possession of property in respect of which there is reasonable cause to believe that a misdemeanour has been committed. In cases where these legislative powers have been adjudicated on it is apparent that the courts are concerned about the curtailment of individual liberty that has inevitably accompanied the expansion of arrest powers. Accordingly, they have tended to place a strict interpretation on such powers, not only requiring clear words to override fundamental common law precepts,297 but also limiting the imposition of physical restraints to the purpose authorised by the statute;298 and, at the same time, cautioning that these powers should be sparingly exercised with tolerance and reasonableness rather than tyrannically, oppressively or arbitrarily.299

Reasonable cause 6.39 The adjustment of the conflict between the interest in personal freedom and the interest in efficient enforcement of criminal law is a delicate one, and in view of Australian traditions it comes as no surprise that the courts show no tendency to attach excessive weight to the second, to the detriment of the first, factor.300 In line with this, the burden of proving reasonable cause for arrest is on the defendant,301 although in malicious prosecution it is on the plaintiff: see 25.7ff. The jury must find the facts on which the matter depends, but reasonable cause is a question of law for the judge.302 And while the suspicion must be that of the defendant, the standard is an objective one in that the court will ultimately be the arbiter of its reasonableness. Mere suspicion or belief,303 even though honest, is not enough,304 but suspicion is a lesser state of mind than knowledge of guilt.305 Thus in Misel v Teese it was held306 that reasonable cause would exist where the suspicion was based on the full conviction of certain facts which, if they really existed, were such as would reasonably lead an ordinarily prudent and cautious person placed in the police officer’s position to the conclusion that the person arrested was probably guilty of the offence. Otherwise, once suspicion is backed by some evidence or information from witnesses which [page 165] affords reasonable grounds for that suspicion, there is reasonable cause.307 The courts will not regard the arrest as unreasonable or unlawful just because the charge was subsequently dismissed,308 alternatively that a different charge309 or even no charge310 was preferred as these facts do not of themselves remove any of the elements which made the arrest lawful in the first instance. On the contrary, if the officer in charge becomes satisfied that the detainee is innocent, any further detention in custody would be false imprisonment.311 Conversely, an arrest based on a trumped-up charge cannot be validated retrospectively by laying another charge which might properly have been laid initially.312 The reasonable cause of an arrest must be shown to exist at the time of the arrest.

Force in arrest 6.40 The level of justifiable force used to effect an arrest in Australia depends on whether the arrest is a ‘confrontation’ or a ‘fugitive’ arrest and whether it takes place in a Code state or one with common law jurisdiction. In a ‘confrontation’ arrest (involving direct physical resistance) the common law sanctioned such force as was reasonably necessary to effect the arrest. This meant that the force used by the arrestor could lawfully be increased in proportion to the degree of resistance offered by the arrestee, even to the point of justifying an ‘unavoidable’ killing.313 This remains the position in the common law jurisdictions but has been somewhat modified in the Code states.314 With ‘fugitive’ arrests (involving flight) the common law condoned as justifiable the killing of a person who sought, by flight, to avoid arrest for felony or treason and who could not be otherwise arrested.315 The ‘fleeing felons’ rule had its origins in the historical fact that treason and felonies were capital offences and the means of capture crude and inefficient. The rule did not extend to misdemeanours, which were not capital offences, but the Victorian Full Court in R v Turner has disavowed316 the categorical statement ‘that the use of a lethal weapon to effect an arrest for a misdemeanour can in no circumstances be justified’. In so doing it extended the right to kill a fugitive, in the course of effecting an arrest, to situations where a misdemeanour has been committed of the kind for which arrest could be made without a warrant. With the abolition, in all jurisdictions other than New South Wales, of the distinction between felonies and misdemeanours, the principle in R v Turner presumably applies to one who has committed any offence. [page 166]

6.41 In Tasmania and Western Australia a person may use reasonable force to prevent an offender taking flight to avoid arrest. However, force likely to cause death or grievous bodily injury is permissible only in cases where the offence is punishable by death or life imprisonment, where the arrest may take place without warrant and where the person sought to be arrested has

been called on to surrender.317 This last requirement mirrors the common law principle that this degree of force is permissible only where there is no alternative means of arrest available. In Queensland, no one effecting an arrest, including a police officer, may use force likely to cause death or grievous bodily injury.318 Where the degree of force employed is greater than is reasonably necessary,319 the arrest will be unlawful, exposing the arrestor not only to tortious but also to criminal sanctions.320 Moreover, the invasion of a person’s liberty by arrest without lawful authority is an assault which, in the words of Windeyer J in R v Tommy Ryan:321 … may be lawfully resisted in a legal manner. The law consequently permits the person so assaulted to resist and escape if he can by the exercise of a corresponding amount of force to that used in such assault.

However, use of a disproportionate amount of force will expose the person sought to be arrested to a charge of assault. So: … if deadly weapons are not used against him, he is not at liberty to maim, wound or kill the officer illegally attempting to arrest him, even if he cannot without the use of such weapons effect his escape.

The Australian Law Reform Commission advocated a single Australia-wide law concerning the use of force in arrest. It criticised in particular the ‘fleeing felons’ rule as too draconian for modern conditions and inappropriate where the offender is known not to be dangerous. The commission recommended instead that the predominant criterion to justify the use of lethal or dangerous force be the dangerousness of the fleeing offender.322

Manner of arrest 6.42 The House of Lords in the leading case of Christie v Leachinsky323 established categorically that an arrest without warrant will be unlawful unless, under ordinary circumstances, the person arrested is informed at the time of the true grounds [page 167] of arrest.324 This is consistent with a citizen’s right to resist any substantial

and unlawful interference with his or her liberty and also affords the citizen the earliest possible opportunity to justify his or her conduct with a view to being released. Failure to provide reasons will expose the arrestor to a charge of false imprisonment and, perhaps, battery and assault. Just how much information must be given is fact sensitive and depends on the particular circumstances of the arrest —it will not necessarily include being notified of the specific charges.325 This requirement, regarded as part of the common law, has been substantially incorporated into the Australian and New Zealand Criminal Codes.326 However, while the New Zealand legislation has meticulously reproduced and preserved this requirement,327 similar legislation in Australia provides that a failure to give reasons does not, of itself, render the arrest unlawful, although it is relevant to the inquiry whether the arrest might not have been made in a less forcible manner. The Queensland provision to this effect was judicially considered in Wornes v Rankmore; Ex parte Rankmore.328 Campbell J noted329 that he would be extremely reluctant to hold that the law on a matter so closely connected with personal liberty was fundamentally different in Queensland from that stated in the House of Lords. Consequently, he held that the then equivalent of s 312 would save an arrest from being unlawful only in those situations where the reasons for the arrest were not called for because they were obvious or could be inferred. Wanstall SPJ was not prepared to go quite as far, holding instead330 that the section ‘apparently’ abrogated the principle that failure to inform the arrested person of the facts which are said to constitute the offence renders the arrest unlawful, and adding that, in any event, charging at the watch-house following the arrest would be sufficient compliance with the requirements of the common law. The third judge, Williams J, held merely that the provision creates an ‘obstacle’ to any argument of unlawfulness of this ground.331 When the circumstances are such that the person detained must know of the general nature of the alleged offence, for example, where caught redhanded, there will be no need to provide reasons for the arrest.332 Nor can the arrestee complain if he or she makes it practically impossible for reasons to be given, for example, by immediately counter-attacking or running away,333 or, probably, when too drunk to understand what is being said.334 Should an arrested person be deaf or unable to understand English, the arrestor who is or should have been aware of the problem must take reasonable steps to try to

communicate with the suspect. But the arrest will [page 168] not be invalid just because the arrestor cannot immediately summon an interpreter or could not reasonably be expected to have known of the deafness.335 Handcuffs may be used in effecting an arrest but only where reasonable grounds exist, for example, where the offender resists arrest.336 In Leigh v Cole it was said that ‘what those reasonable measures are must depend entirely on circumstances, on the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind’.337 This test remains sensible. However, as noted in Kumar v Minister for Immigration, Local Government and Ethnic Affairs, the unreasonable handcuffing of a person does not vitiate the lawfulness of the arrest although an action at common law will lie for damages for the indignity suffered.338

Detention of suspected offender 6.43 A person, once arrested, must be taken before a justice as soon as is reasonably practicable and without undue delay.339 Where this obligation has been put in legislative form, it varies from state to state,340 but the idea behind it is to ensure that law enforcement processes should be transferred in as short a time as possible from the committed police stage of an investigation to the uncommitted judicial stage.341 This procedure is intended to provide a safeguard to the liberty of the individual by affording a person who has been taken into custody for an offence the earliest practicable opportunity to seek a judicial order for release.342 A detention for any longer period or any other purpose will constitute an unlawful infringement of the civil liberties of the arrested person.343

6.44 The practice occasionally adopted by police of taking a suspect to the police station for questioning, then to decide in the light of the answers whether to lay any charges, is unlawful at common law344 and constitutes

false imprisonment.345 [page 169] Turner J, commenting on this practice in Blundell v Attorney-General,346 made the following point: It is not sufficient for the constable to say ‘I may be going to arrest you; I do not yet know; but I will restrain you in the meantime, while enquiries are made’.

Similarly, in a case where the police had detained a deaf mute for three nights in a police station without charging him, Devlin J told the jury:347 You may sometimes read in novels and detective stories, perhaps written by people not familiar with police procedure, that persons are sometimes taken into custody for questioning. There is no such power in this country. A man cannot be detained unless he is arrested.

Nor will a police officer’s conduct be legitimised by the ‘device’ of formally arresting the suspect if the arrest is solely for the purpose of questioning the suspect.348 Unless reasonable grounds for the arrest exist at the time of the arrest, both the arrest and the subsequent detention will be unlawful.349 Only if the police can discharge the heavy onus of proving that the plaintiff freely consented to go with them to the police station and to remain there for questioning can liability for false imprisonment in such a case be rebutted and only then will the interrogation be lawful.350 Even if the initial arrest is lawful, any undue delay in bringing the arrested person before a justice will expose the police to a charge of false imprisonment. The hallmark of any measures which result in such delay, if they are to be lawful, is that they be reasonable. It would clearly be unreasonable to detain a suspect for three days before taking the suspect in front of a magistrate in order to enable the victim of the alleged crime to procure evidence in the interim.351 On the other hand, it is accepted that any detention which is reasonably necessary pending the availability of a magistrate will be lawful.352 Moreover, even where a justice is found to be available, it may not be practicable to bring the arrested person before the justice until the necessary paperwork has been completed353 though this period, too, must not be unreasonable. The obligation extends to conveying the arrested person to a justice by the most reasonably direct route.354 Any deviation resulting in delay will be lawful only if it is reasonably justifiable in the circumstances. In R v

Barker355 a police officer who, while on his way with his lawfully arrested prisoner to the nearest police station, encountered heavy rain storms which rendered the roads impassable, was held justified in heading for the nearest lodgings (in this case a police station across the state border) and riding out the storm there. By comparison, if in the course of an otherwise lawful arrest, the arresting officer takes the prisoner to a totally unsuitable [page 170] place, such as an hotel,356 for purposes such as search or interrogation, the detention, search and interrogation will be unlawful and a trespass.357

6.45 Courts in Australia and New Zealand have construed the requirement that a prisoner be brought before a justice as soon as is reasonably practicable more stringently than have their English counterparts. In Dallison v Caffery358 the English Court of Appeal held that police officers359 may justify their delay in taking the arrested person before a justice on the basis that the presence of that person elsewhere was necessary for further investigation of the alleged offence. They could, for example, take the person to a place of employment or to home to check out an alibi or to search for stolen property. More recent cases lend support to the view that, in England, practicability is ‘a slightly elastic concept’360 which stretches to take account of so-called unavoidable delay (in some cases involving a period of up to two days)361 in obtaining sufficient evidence to charge the arrested person. The common law has developed differently in Australia and New Zealand. Courts here have labelled such delays unreasonable and have held any arrest for these purposes not only to be destructive of civil liberties but also unlawful.362 The view taken by Hampel J in R v Larson and Lees363 is illustrative of the approach adopted in Australia. The judge interpreted the words ‘as soon as practicable’364 to: … refer to the time required to bring the person arrested before a justice and not to the time which the police may choose to take after arrest to make further enquiries or conduct further investigations. The section is designed to safeguard persons in custody after arrest from being held by the police for questioning or further investigations or otherwise.

The High Court has endorsed this view on the basis that ‘[i]f a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in

custody for that purpose’.365

6.46 There is nothing to prevent a police officer from asking a suspect in lawful custody questions designed to elicit information about the commission of that or any other offence. And the investigations which are made subsequent to an arrest may reveal that the person arrested has committed a different crime from that for which he or she was arrested. Even if the original charge is then dropped and a different [page 171] one substituted for it this will not, of itself, render the original arrest unlawful. It is only where the police delay in bringing the suspect before a justice in order to question the suspect further that the action becomes unlawful. As King CJ indicated in R v Miller,366 if the suspect has been arrested and inquiries are not complete when it is practicable to bring him or her before a justice, then it is the inquiries which must wait and not the bringing of the arrested person before the justice.

Execution of Process 6.47 Although sheriffs, bailiffs and other ministerial officers of the court are not exempt from liability for their tortious acts, nevertheless it may be a defence to an action in false imprisonment, trespass or conversion that the act was done in the execution of judicial process.367 This defence may also be available where negligence is relied on as the cause of action. The availability of the defence stems from the fact that such persons are charged by law with the service and execution of court processes,368 which not only precipitate but often necessitate invasions of personal and property rights. In authorising warrants, the courts are fully aware of the need to balance these competing factors.369 The position at common law is that a sheriff or other officer of the court, acting strictly within the authority of a warrant issued by a superior court of record, is protected although the judgment on which the warrant is issued is invalid.370 So, a sheriff who effects the dispossession of the tenant of rent-

controlled premises, and is then sued in trespass by the tenant, will have a defence if he or she produces the authority of the court to effect dispossession, although it may be that in the circumstances the tenant is lawfully entitled to possession.371 Nor is the sheriff affected if the judgment is subsequently reversed.372 But this does not mean that a sheriff is protected if the warrant itself is invalid; that is, where the judgment is valid but there is no legal authority to issue the particular warrant.373 Certainly, if the warrant is not signed and marked in the required manner374 and, probably, whenever the warrant does not bear on its face the accepted characteristics of a valid warrant375 and, possibly, whenever the warrant, as distinct from the judgment on which it is based, is void and not merely voidable, the sheriff has no protection.376 [page 172] Where the process is issued out of an inferior court, the officer acting under it is protected if the subject matter of the suit is within the general jurisdiction of the court and the warrant is regularly issued, even though the judgment itself might not be sustainable.377 In Ward v Murphy an officer was held not liable for executing a writ not bad on the face of it378 although issued without jurisdiction unless the officer knew of the defect.379 Moreover, the officer was not required to do more than plead the writ itself, and to allege that it was issued out of an inferior court and was not bad on its face. It would then be up to the plaintiff to show that the officer knew of the defect in jurisdiction. Of course, if the warrant itself is bad in form, the officer who executes it would be presumed to know of this and would have no defence.380 In a decision clearly influenced by policy considerations, the High Court has, however, held that no action for false imprisonment can be brought by one member of the services against another who was acting in obedience to orders of a superior officer implementing disciplinary decisions which, on their face, were lawful orders. It was decided that to hold otherwise would be ‘deeply disruptive of what is a necessary and defining characteristic of the defence force’ and ‘disruptive of discipline’.381 A private person who irregularly obtains a warrant is not protected in executing it.382 If the warrant is void, then such a person has no defence.383 If

it is voidable the private individual is protected unless ‘the process has been set aside by reason of some misconduct, or at least some irregularity, on the part of the person suing it out’.384

6.48 Any defendant, whether an official or private individual, who fails to act in accordance with the process will be liable. So, for example, the bailiffs in O’Connor v Sheriff of Queensland385 and Harvey v Birrell386 were held liable for seizing goods of persons not named in the writs, the court in the latter case remarking387 that ‘no amount of bona fides on the part of an officer of the Court who made a mistake of this kind could disentitle the plaintiff to the damage he had actually sustained’.388 An official who properly seizes goods but who thereafter disposes of them in an unauthorised way will also be liable.389 Where a mining plant worth probably £400 was seized pursuant to a writ of fieri facias and sold for £10 in order to satisfy a debt of £116, the sheriff in Smith v Colles390 was held liable in negligence for proceeding with the sale with what was described as ‘disastrous speed’, leading to the sacrifice of valuable property. By comparison, the sheriff in Anderson v Liddell391 was held not liable for selling land at a public auction for a price that may have been low but [page 173] was not illusory or unfair. And in Clarke v Cowper392 an action in trespass was not maintainable against a sheriff who, acting under a writ of habere facias, handed over to a successful plaintiff in an action for ejectment more land than the latter was entitled to; the remedy of the person aggrieved, if any, was by writ of restitution. Where a warrant is expressed to be valid for a named period only, action taken after it has expired will render the officer liable.393 This would not, however, preclude a sheriff from taking action to re-arrest an escaped prisoner, provided the initial arrest took place timeously. But a sheriff who thereafter placed the prisoner in jail on his own responsibility instead of taking him before the court to answer his contempt, as directed by the warrant, was liable in an action for false imprisonment.394 The courts thus insist on strict adherence to the terms of the process. Similarly, the sheriff in Copeland v Buck,395 who lodged his prisoner in the Adelaide jail, despite a

request by the latter to be taken before a magistrate and in the face of a warrant which allowed the sheriff to take such a step only if the prisoner did not make such a request, was held liable for false imprisonment. In general, these rules seem to strike a fair balance between the necessary protection of private rights and the proper security which bailiffs, sheriffs and like ministerial officers require in performing their duties.

Statutory Authority 6.49 Public bodies and officials do not have a licence to commit acts which would be unlawful in others, but some acts which might otherwise be trespassory or in some other way tortious396 may be justified by statute.397 The basic principle, as stated in Coco v R,398 is that ‘statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakeable and unambiguous language. Indeed … the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable if there is a clear implication (to the contrary) …’We have seen one form of this defence in operation in the discussion in 6.35ff on powers of arrest. The defence of statutory authority is, however, much wider than this and provides protection from civil suit in several different contexts including: (i)

the prevention and detection of crime; and

(ii)

the provision of public utilities and services. [page 174]

Typical of legislation in the first category are those statutes authorising police and other law enforcement agents to enter, search and seize property.399 Searches were permitted at common law, both with and without warrant, but the power to do so was strictly circumscribed. In the former case it was confined to searching for stolen goods400 and, in the latter, to searches incidental to a valid arrest. Legislation such as the Dog Act 1976 (WA) s 29 typifies statutes which extend piecemeal the warrant power to cover

particular situations, in this case, the entry of premises to seize dangerous dogs.401 Although extending traditional common law powers, this legislation is unexceptionable. What has given more cause for concern are statutes which provide for the issue of unrestrained, general warrants.402 The concern about such legislative provisions, as the Australian Law Reform Commission pointed out, is not only their extraordinary scope, but also that: [t]here is no requirement in any of them that before the powers are exercised an independent judicial mind should consider the circumstances of the particular case, weighing the public interest as against that of the individual concerned. Nor is there any effective way in which any of the powers once exercised can be the subject of ex post facto judicial review.403

Extensive search and entry powers are not necessarily confined to traditional law enforcement officers, such as police or customs officers, but may be exercised by other public servants. Public officials, such as the Ombudsman, are statutorily permitted to enter premises without permission of the occupiers in order to carry out their investigatory functions (the Ombudsman is confined to entering public premises).404 Similarly, officials authorised under the Navigation Act may, largely for public health reasons, board and inspect provisions, water405 and medical supplies406 on ships subject to the Act. Surveyors are authorised to board and inspect any part of a ship.407 Ships deemed to be unseaworthy may be provisionally detained,408 and the Whale Protection Act 1980 (Cth) s 25(1) even allows inspectors to search aircraft on the reasonable suspicion that a whale might be hidden on board. Legislation may in the public interest sanction invasions of personal liberty which would otherwise clearly constitute battery, assault or false imprisonment.409 The war [page 175] against illicit drug dealing has, for example, occasioned legislation which allows for the detention and search of persons suspected of secreting drugs on their bodies. These powers extend even to internal ‘cavity’ searches, but generally may not be exercised unless stringent procedural requirements have been met.410 Most statutory provisions of this genre do incorporate procedural safeguards and officers who disregard them do so at their peril.411 Where, however, the procedures laid down in the statute have been followed,

the individual whose rights have been invaded will be left without any cause of action; the statutory immunity from suit afforded by the legislation in such situations is usually total. In our modern society public authorities are often given powers by statute to enable the construction and maintenance of works in the greater public good. These powers may entail encroachment on private rights.412 The Australian telecommunication carriers, for instance, are authorised by statute not only to enter but also to occupy private property in order to carry out certain activities incidental to their mandate to erect and maintain telecommunications services. These acts include sinking bores, digging pits, felling trees, erecting plant or machinery.413

6.50 Whether any remedies exist for the infringement of rights depends on the intention of the legislature which is to be found in the wording of the particular statute. Some statutes, such as the Ombudsman Act, grant a blanket protection in respect of all actions, suits or proceedings, provided only the act was ‘done in good faith in exercise or purported exercise of any power or authority conferred’ by the Act.414 The Telecommunications Act 1997 (Cth) exhorts each carrier to ensure that it ‘does as little damage as practicable’.415 The Navigation Act 1912 (Cth) while not granting a remedy for the detention of a vessel as such, nonetheless does render the Australian Maritime Safety Authority liable to pay the owner any costs incidental to the detention if ‘there was no reasonable and probable cause’ for it.416 In all cases, therefore, where an intentional tort has been authorised by statutorily conferred powers, the existence and extent of the remedy must be sought within the confines of the legislation itself.417 [page 176]

Judicial Acts 6.51 It is a fundamental principle of the common law418 that persons exercising judicial functions419 in a court are immune from civil liability for anything said or done by them in that capacity.420 The immunity is based on the need to ensure the total freedom and independence of judges in the

administration of justice;421 it is in no sense a private right — the judge is merely the repository of a public right designed to protect the judicial system from collateral attacks by disappointed and disaffected litigants.422 It follows from this that no immunity attaches to the acts of judges out of court.423 Accordingly, a judge who published a political libel in an extrajudicial pamphlet was held not to be immune.424 Historically, the extent of this immunity has differed according to whether the action was taken by a judge of a superior or an inferior court. Whereas if the act is within jurisdiction, the former is not liable even if actuated by malice,425 the latter will lose the immunity by acting maliciously and without reasonable and probable cause. Where acts are outside their jurisdiction, inferior court judges will be personally liable.426 Superior court judges, by comparison, are protected from the effects of tortious acts beyond their jurisdiction, provided they act judicially. The meaning of the phrase ‘acting judicially’ was expounded upon by Lord Denning MR in Sirros v Moore427 thus: A judge of a superior court is not liable for anything done by him while he is ‘acting as a judge’ or ‘doing a judicial act’ or ‘acting judicially’ or ‘in the execution of his office’ or ‘quatenus a judge’. What do all these mean? They are much wider than the expression ‘when he is acting within his jurisdiction’. I think each of the expressions means that a judge of a superior court is protected when he is acting in the bona fide exercise of

[page 177] his office and under the belief that he has jurisdiction, though he may be mistaken in that belief and may not in truth have any jurisdiction.428

The exposition leaves open the possibility, as Wood J commented in Moll v Butler,429 that a judge who in bad faith knowingly acts without jurisdiction may be personally liable because he or she would then not be acting judicially.430 Where, however, the action is based not on a lack of jurisdiction but on an alleged abuse of it, the immunity will prevail. So, in Rajski v Powell431 allegations related solely to the manner in which the defendant had exercised the powers which he undoubtedly possessed as a Supreme Court judge in the Commercial List were held to have disclosed no cause of action.

6.52 The distinction between the levels of immunity enjoyed by judges in superior and inferior courts of record has been criticised both in Australia432

and in England. Buckley LJ in Sirros v Moore433 suggested that the origins of the distinction might be traced back to the period of active struggle for jurisdiction between the King’s courts on the one hand and the ecclesiastical, seignorial and other courts of limited jurisdiction on the other hand, and that the more comprehensive protection was a consequence of the more extensive jurisdiction claimed by the King’s courts, particularly the Court of King’s Bench.434 Whatever the origins, this dichotomy is not easily justifiable today given that the policy considerations underpinning the immunity apply with equal vigour to the actions and decisions of magistrates, justices and other inferior court judges. The members of the English Court of Appeal in Sirros were unanimous in asserting that the old rules should be modified by giving judges of inferior courts (including magistrates) enhanced protection. But in Re McC435 the House of Lords held that however anomalous it might seem, judges of inferior courts of limited jurisdiction remain liable for acts done in excess of their jurisdiction. Magistrates who sentenced a boy to custodial sentence when they had no power to do so were liable to the boy for false imprisonment. [page 178] The position of inferior court judges today is not regulated solely by reference to the common law. In some jurisdictions special legislative provision has been made which supplement436 or replace437 the common law rules.

Acts Connected with Parliamentary Proceedings 6.53 Parliamentary privilege is best known as a defence to an action in defamation. The absolute privilege accorded to statements made by Members of Parliament in parliament can be traced back to Art 9 of the Bill of Rights 1688 which declares: … the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.438

The privilege of freedom of speech enjoyed by all Members of Parliament in Australia and New Zealand also has its roots in the common law439 and in

legislation which adopts the privileges of the House of Commons.440 It is accordingly a defence to both civil and criminal suits that the words or acts complained of took place in the course (or as part)441 of the proceedings in parliament, for each House of Parliament has the privilege of regulating its own concerns.442 While taking part in the proceedings of either House, not only members, but also officers and strangers, are protected by the same sanction as that by which freedom of speech is protected, that is, they cannot be called to account by any authority other than the House itself.443 Not all statements made or actions taken within the confines of parliament will be protected; only those which occur during the course of parliamentary proceedings.444 Thus remarks made by a Member, not related to the business which is in the course of transaction or, more generally, before the House, will not be privileged.445 Witnesses who testify before parliamentary committees are also accorded absolute privilege from liability for defamation with regard to their statements before those [page 179] committees.446 There is uncertainty whether and to what extent privilege attaches to other communications between members.447 It seems that, at least, these are accorded qualified privilege (see 19.49ff), but, as they may not be part of proceedings in parliament, they may not enjoy absolute immunity.448 Press reports, provided they are fair and accurate reports of parliamentary proceedings, are also protected: see 19.48. Members who republish outside the House, or there refer to, a speech made inside the House are no longer protected by absolute privilege.449 Nor does parliamentary privilege or immunity from criminal proceedings attach to ‘ordinary’ crimes450 which take place within the confines of parliament, such as assault or fraud. Parliament itself has the power to treat improper conduct as contempt and to take disciplinary action against the offender,451 though reported instances of such action are rare. The High Court in Egan v Willis recently confirmed that these powers extend to suspension of a member from the House for failure to obey a resolution to produce state papers.452 In so doing it differentiated between punitive measures, which are impermissible, and protective measures necessary for the enforcement of its functions.453

Legitimate disciplinary action extends to imposing on an offender a term of imprisonment,454 thereby precluding an action for false imprisonment.

Executive Acts 6.54 In general, it is no defence that the act complained of is an act of the executive.455 To this there are two exceptions.

Act of state 6.55 An act of state has been defined as ‘an act of the executive as a matter of policy performed in the course of its relations with another state’.456 It is generally accepted that acts of state are not subject to the jurisdiction of municipal courts [page 180] because they represent ‘an exercise of sovereign power [which] cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that of law, but that of sovereign power’.457 In its practical application in the relevant torts context it means that neither the official responsible nor the Crown can be sued for injuries tortiously inflicted outside the territorial jurisdiction458 of the Crown on aliens by authority or subsequent ratification of the Crown.459 The rationale behind this exclusion is that an alien outside the realm owes no allegiance to the Crown and is therefore not entitled to protection.460 In Nissan v Attorney-General461 the respondent, a British subject, claimed damages from the Crown in respect of an alleged breach of contract and trespass arising out of the occupation by British troops of an hotel in Cyprus of which he was a tenant during the civil war in 1963–64. The case was resolved on the basis that the occupation was not an act of state, but the court left undecided whether an act of state could be pleaded against British subjects in respect of acts outside the realm.462 If the act is committed within territorial jurisdiction, the defence is available only where the plaintiff is an enemy alien,463 or, possibly, a friendly alien resident in the territory who has broken his or her duty of temporary local allegiance to the Crown.464

Judicial consideration of the doctrine in Australia has been limited and what jurisprudence there is has drawn heavily on cases decided by British and American courts. In Habib v Commonwealth465 the doctrine was accepted as part of Australian common law. Nonetheless, it was held not to preclude judicial determination of a claim involving allegations of torture, as such acts not only involve contraventions of peremptory norms of international law, or jus cogens, ‘being norms about which all nations agree … and from which no derogation is permitted’,466 but also because the Australian Parliament has clearly proscribed torture in all circumstances.467 This decision indicates that the doctrine is still evolving and its application will need to be considered on a case-by-case basis.

Prerogative 6.56 The Crown still retains a few prerogative powers to interfere with the rights of the citizen, one of these being the power to expropriate private property for certain limited purposes. In the case of the Commonwealth, s 51(xxxi) of the Constitution expressly confers on the Commonwealth Parliament the right to legislate with [page 181] respect to the taking of property, for federal purposes and on just terms, from either a state or a private person.468 This ‘compound conception, namely “acquisition-on-just-terms”’,469 is consistent with the common law but involves the payment of fair compensation to the dispossessed owner. No requirement to pay just terms exists with regard to the acquisitive power of state governments to expropriate private property. Similar principles apply in times of war, in relation to the exercise by the Commonwealth of its acquisition powers for defence purposes,470 although the courts will then be faced with the difficult task of deciding what fair compensation is, given the inevitable and profound changes to the economy that will occur.471

Military Acts 6.57 The common law grants to officers and to members of military tribunals immunity from civil suit for all acts causing injury to the person or liberty where these are within jurisdiction and in the course of military discipline. This immunity apparently extends even to malicious acts though the matter is not free from doubt.472 A person acting in excess of or without jurisdiction will be liable to an action for assault or false imprisonment, even though the injury purportedly takes place in the course of military discipline. The immunity rests on grounds of public policy and convenience, the object being to secure the maintenance of military discipline, on which the welfare and safety of the state depend. For this, unquestioning submission to superior authority is deemed to be required.473 This defence now has a statutory basis: the Defence Force Discipline Act 1982 (Cth) s 193 (1) provides that: [A] member of a court martial, a judge advocate, a Defence Force magistrate, a summary authority or a reviewing authority has, in the performance of his duties as such a member, judge advocate, magistrate or authority, as the case may be, the same protection and immunity as a Justice of the High Court. (See 6.51)

By linking the protection to that of High Court judges, the effect of the Act has been to remove any vestige of doubt over whether the immunity extends to malicious acts performed within jurisdiction and, as a consequence of the decision in Sirros v Moore,474 no tortious liability exists for acts in excess of jurisdiction if done in good faith. [page 182]

Plaintiff a Wrongdoer 6.58 If the plaintiff’s success in tort depends on establishing a contract and that contract is tainted by illegality, the action in tort will fail: ex turpi causa non oritur actio. So, in Taylor v Chester475 the plaintiff deposited with the defendant half of a £50 note as a pledge to secure the defendant’s charges for the use by the plaintiff of her brothel for an orgy, but could not sue in detinue

for its return because he could deny the validity of the pledge only by showing its immoral purposes. Take also the decision of the High Court in Thomas Brown and Sons Ltd v Fazal Deen:476 P had deposited gold with D in breach of exchange control laws. When P sought to recover the gold from D it transpired that D had parted with the gold so long ago that a cause of action based on conversion was time-barred. He therefore sued in detinue,477 and failed because he then had to found his action on the illegal contract of bailment. The matter may be taken further: the terms of the bailment required D to hold the gold, along with some gems and the safe in which the gold and gems were stored, in safe custody until such time as P required them to be redelivered to him. The court held that, although in so far as the gold was concerned, the performance of the agreement contravened the regulations, it did not follow that the bailment of the gems and safe was tainted by illegality; accordingly, the latter, though not the former, was recoverable. If, on the other hand, although the goods came into the possession of the defendant under an illegal contract between the parties, the plaintiff does not have to rely on that contract, the latter may sue in conversion.478 Where the facts fall outside these contractual situations but the harm complained of arises out of and in the course of carrying out an unlawful act,479 the courts have a discretion whether to bar the claim on the ground that the plaintiff is a wrongdoer. In this regard the maxim ex turpi causa non oritur actio is, at most, a warning;480 indeed, whether the maxim has any rightful place in the law of torts has been seriously questioned by the High Court481 in three leading decisions. Windeyer J in Smith v Jenkins expressed the view482 that it should be confined to the law of contracts and conveyances, while Mason J in Jackson v Harrison warned483 that if it were to be [page 183] inflexibly applied, it would, in some instances, be productive of severe and unjust consequences. Most recently, in Miller v Miller, the court noted484 the importance of identifying, in each particular case, not only what policy considerations are engaged but also how and why they are engaged — a bald reference to the maxim does not achieve this.

Since Henwood v Municipal Tramways Trust485 it may unequivocally be said that a person will not lose a remedy at law for harm done merely because there is a causal connection between the harm done and that person’s illegal conduct.486 Accordingly, in Henwood, the fact that the deceased passenger had died of injuries received while leaning out of a tram in contravention of a by-law did not exonerate the trust from liability in negligence for its part in his death. The court treated the matter as one of statutory interpretation487 and held that the by-law, though intending to protect passengers against their own folly by imposing a prohibition enforceable by a penalty, did not affect civil rights or responsibilities.488 Although in Henwood public policy considerations were not adverted to by the court, it is clear that in some situations these will influence the decisionmaking process. This is especially evident in cases involving employee– employer related injuries. In Cakebread v Hopping Brothers (Whetstone) Ltd489 an employer was held liable for breach of statutory duty even though its employee had abetted the offence by misplacing the guard to dangerous machinery, on the basis that to hold otherwise would run counter to the purpose of the legislation. By comparison, in Imperial Chemical Industries Ltd v Shatwell,490 where the workers, two brothers, had ignored safety precautions set out in their statutory instructions, it was held that the very questions of public policy and fairness which reinforced those decisions imposing liability in cases where the employer was party to an agreement to neglect the statutory precautions, here dictated an opposite response. Public policy considerations (albeit not expressly invoked) arguably underpinned the decision of Penlington J in Brown v Dunsmuir to invoke the ex turpi causa maxim to prevent a landowner/developer who ignored by-laws, illegally excavated on his land and encroached on a neighbour’s land from obtaining a judgment in trespass against that neighbour for placing soil on the developer’s land as a protective measure. The judge held that to grant relief to the developer in these circumstances ‘would be to encourage unlawful conduct and to make a mockery of a local authority’s right to control excavation work’.491 [page 184]

6.59 Where the injury arises in the course of the joint illegal activity of the plaintiff and defendant, the courts have tended to turn away from the statutory interpretation approach and to rely instead on a mix of public policy considerations and common law principles. In Bondarenko v Sommers492 the illegal act complained of was the taking and using of a motor vehicle, during the course of which P was injured through the negligent driving of D. Jacobs JA, of the New South Wales Supreme Court, held493 that there was no liability because ‘the actual act complained of as done negligently is itself the criminal act in which both plaintiff and defendant were engaged’. Although this decision could be interpreted as being based on public policy considerations, it was applauded as an application of ‘the true principle of the common law’ and followed in the case of Smith v Jenkins.494 The facts there were not dissimilar to those in Bondarenko’s case, the respondent being injured through the negligent driving of a motor car which both parties were unlawfully using contrary to the provisions of the Crimes Act 1958 (Vic) s 81(2). Barwick CJ, Windeyer and Owen JJ, preferring not to rely on public policy considerations, approached the matter by denying that a duty of care exists between accomplices jointly engaged in the actual performance of an act which constitutes a step in the execution of the common illegal purpose. This approach may be helpful when the tort in issue is that of negligence; but where intentional torts are involved, Kitto J’s approach may be more appropriate; namely,495 that persons who join in committing an illegal act which they know or must be presumed to know to be unlawful have no legal rights inter se by reason of their respective participation in that act; alternatively, to recognise, as Walsh J496 did, that there is no single rule, by which, in all cases, the question of liability is to be answered. In the context of negligently inflicted harm it is clear that the High Court now adheres to the view that the joint illegal activity is to be regarded as only one factor in the relationship between the parties that might extinguish or modify a duty of care otherwise owed. This view was clearly stated by Jacobs J (with whom Stephen, Mason and Murphy JJ agreed) in Progress & Properties Ltd v Craft497 in the following terms: A plea of illegality in answer to a claim of negligence is a denial that in the circumstances a duty of care was owed to the injured person. A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. A joint illegal activity may absolve the one party from the duty towards the other to perform the activity with care for the safety of that other. That, it seems to me, is the effect of Smith v Jenkins.

The denial of the duty might stem from the fact that, in the particular circumstances, the court finds itself unable to determine an appropriate standard of care.498 Alternatively, there may be circumstances in which the court may be able to determine a standard of care and so recognise a duty, but where, as an exercise of [page 185] judicial policy to deny recovery, it refuses to do so.499 This approach is not novel. The courts have in years past refused to lend their imprimatur to what, in their view, are essentially immoral arrangements. Thus a woman who contracted venereal disease as a result of extra-marital intercourse was held unable to sue in trespass, even though the defendant had misrepresented his condition.500 And a woman was held to be disbarred from suing in deceit a man who had induced her to become his mistress by representing that he was entitled to a decree for nullity and would marry her when he obtained it.501 Public policy considerations of this kind did not prevail in Jackson v Harrison.502 The majority of the High Court held that P, a passenger injured in a motor vehicle being driven by D, was not prevented from recovering damages merely because, at the time of the accident, he was aware that D had been disqualified from holding a driver’s licence and so was a joint participant in the offence. One view, expressed by Jacobs J,503 was that the illegality had no bearing on the question whether the standard of care exercised by the driver was reasonable. Building on his judgment in Progress & Properties Ltd v Craft, and giving as an example the situation of two safeblowers who are injured during the course of their joint illegal venture, he added that: Before the courts will say that the appropriate standard of care is not permitted to be established there must be such a relationship between the act of negligence and the nature of the illegal activity that a standard of care … could only be determined by bringing into consideration the nature of the activity in which the parties were engaged.504

Another view, put by Mason J,505 was that denial of relief should not depend on the illegal character of the activity as such, but should be related to the character and incidents of the enterprise, including any hazards inherent in its execution. Consequently, merely to accept a lift from a driver whom one

knows to be unlicensed and disqualified, provided this does not entail an agreement to drive recklessly,506 would not, of itself, be sufficient to exclude the possibility of obtaining relief. The entire issue was revisited in Gala v Preston,507 the facts of which were similar to those in Smith v Jenkins. The High Court unanimously refused counsel’s invitation to overrule Smith but for reasons which remain as diverse as those expressed in earlier decisions. The majority, Justices Brennan and Toohey apart, saw the problem in terms of the now discredited notion of proximity.508 For Brennan J the overriding consideration was expressed to be the need to preserve the normative influence of [page 186] the criminal law509 and in determining whether the admitting of a duty of care would impair this normative influence he held that the matters to be considered included: … the gravity of the offence, the threat to public order or public safety or the infringement of the rights of third parties which the law seeks to prevent, any other mischief at which the law creating the offence is aimed, the penalties prescribed for breach of the law and the effectiveness of those penalties to secure obedience to the law if a duty of care be admitted.510

In his separate opinion, Dawson J frankly admitted the role of policy in determining the existence of a duty of care between participants in a joint illegal enterprise. In so doing he noted that policy considerations go deeper than possible interference with the normative influence of the criminal law, preferring to express the policy ‘as being the refusal of the law to condone the commission of a criminal offence by granting a civil remedy’.511 In his decision, Toohey J endorsed Smith v Jenkins as giving voice to the policy that no duty of care exists between persons engaged in joint criminal activities when those activities are relied on to found the cause of action. As he said, in those circumstances a duty of care is held not to exist, ‘not because of the difficulty of defining a standard of care but because of the participation by the parties in the criminal activity which resulted in the injury’.512 In its latest review of the maxim, in Miller v Miller, the High Court stressed that the ‘central policy consideration at stake is the coherence of the

law’513 and whether it would be ‘incongruous for the law to proscribe the plaintiff’s conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct’.514 This accords with the view of the House of Lords in Gray v Thames Trains Ltd515 that, underlying the maxim is the recognition of the need to preserve the integrity of the justice system by ensuring that different organs of the same legal system adopt a consistent approach to the same events. In deciding whether the maxim applies, the totality of the relationship between the parties must be examined — the fact that they are joint participants in an illegal act being just one relevant aspect.516 Where a statutory offence is involved, ascertaining the purpose of the statute is key as this will reveal ‘any incongruity, contrariety or lack of coherence denying the existence of a duty of care’.517 Applying this approach, the court held that the Western Australian statute in question which proscribed and [page 187] punished the illegal taking and use of a vehicle was not consistent with one offender owing another a duty of care.518 The principles embodied in the maxim have been supplemented by legislation in most Australian jurisdictions under which a court is not to award damages if it is satisfied that the plaintiff was, at the time of the incident which resulted in the relevant injury or damage, engaged in conduct which might have constituted a serious offence, and that such conduct materially contributed to that injury or damage. The possible criminality of the plaintiff’s conduct needs generally to be proved only to the civil standard of the balance of probabilities, but the exclusion of an award of damages does not apply, in South Australia, and the two territories, in exceptional circumstances, if its application would operate harshly or unjustly.519 _______________ 1.

Rendell v Associated Finance Pty Ltd [1957] VR 604 at 612–13.

2.

Egan v State Transport Authority (1982) 31 SASR 481.

3.

(1977) 137 CLR 107; 14 ALR 273.

4.

Ibid at 133; 294 respectively.

5.

Per Cohen LJ in National Coal Board v JE Evans & Co (Cardiff) Ltd [1951] 2 KB 861.

6.

(1964) 111 CLR 384 per Windeyer J.

7.

The judgment of the Full Court of the High Court on the plaintiff’s subsequent appeal was confined to the issue of the boy’s negligence.

8.

Such a situation does not arise in English law where the onus is on the plaintiff to prove either intention or negligence on the part of the defendant: Fowler v Lanning [1959] 1 QB 426; 1 All ER 290; approved by the Court of Appeal in Letang v Cooper [1965] 1 QB 232; [1964] 2 All ER 929.

9.

[1967] Qd R 32 at 41.

10.

Similarly, Lane v Holloway [1968] 1 QB 379; [1967] 3 All ER 129, where Salmon LJ at 389 and 133 respectively discussed as a defence to an intentional battery the maxim volenti non fit injuria.

11.

(1979) 26 ALR 584 at 558.

12.

So, if a spectator at a cricket match were hit by a ball and sued the cricketer in trespass, assumption of risk might be pleaded. Yet, consent would be a defence to a defendant who had been invited by the plaintiff to publish a statement defamatory of the plaintiff: see 19.71.

13.

For trespass to land, the burden of proof of consent is on the defendant: Plenty v Dillon (1991) 171 CLR 635 at 647; 98 ALR 353 at 361 per Gaudron and McHugh JJ. With regard to trespass to the person, see 3.7.

14.

Blay, ‘Onus of Proof of Consent in an Action for Trespass to Person’ (1987) 61 ALJ 25 at 28.

15.

This is consistent with the idea that the absence of consent is the gist of trespass. So, per Holmes J in Ford v Ford (1887) 143 Mass 577 at 578: ‘The absence of lawful consent is part of the definition of assault’. On one interpretation, Lord Blanesburgh in William Leitch Co Ltd v Leydon [1931] AC 90 at 109 (HL) could be applying the rule relating to assault to trespass to goods. In Jolliffe v Willmett and Co [1971] 1 All ER 478, a wife living apart from her husband authorised an inquiry agent to enter her husband’s flat; the inquiry agent’s defence of leave and licence failed when the husband sued him for trespass to land.

16.

See on this point Secretary, Department of Health and Community Service v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 310; 106 ALR 385 at 453 per McHugh J; Cusack v Stayt (2000) 31 MVR 517 (NSWSC).

17.

Sir John Donaldson MR in Freeman v Home Office (No 2) [1984] QB 524 at 557; 1 All ER 1036 at 1044 (CA) noted: ‘[t]he maxim, where it applies, provides a bar to enforcing in a cause of action. It does not negative the cause of action itself. This is a wholly different concept from consent which … deprives the act of its tortious character’.

18.

See R v Bree [2008] QB 131; [2007] 2 All ER 676 (CA) and cases discussed therein. The enquiry in such cases is on the plaintiff’s capacity to consent rather than on the defendant’s belief, reasonable or otherwise, that she did in fact consent.

19.

(1906) 4 CLR 379. See also Lloyd v DPP [1992] 1 All ER 982 — plaintiff regarded as having impliedly consented to trespass to his car by wheel clamping when he parked it unlawfully, as he must have seen the signs warning of this possibility.

20.

Chatterton v Gerson [1981] QB 432 at 443; 1 All ER 257 at 265.

21.

See Yeo, ‘Determining Consent in Body Contact Sports’ (1998) 7 Tort L Rev 199.

22.

See R v Billinghurst [1978] Crim LR 553; Affutu-Nartoy v Clarke (1984) The Times, 9 February. Similarly, the Restatement, Torts (Second), s 50, comment b, which states: ‘Taking part in a

game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which operate by habit or by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill. This is true, although the player knows that those with or against whom he is playing are habitual violators of such rules.’ 23.

Blake v Galloway [2004] EWCA Civ 814.

24.

(1979) 26 ALR 584 at 588–9. See also Sibley v Milutinovic (1990) Aust Torts Reports 81-013; Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81246 (head high tackle).

25.

No consent can be implied from a blow struck behind the play: Baird v Police (SC(SA), King AJ, 11 August 1997, BC9704130, unreported).

26.

(1991) Aust Torts Reports 81-085 at 68,709–10; also Re Lenfield (1993) Aust Torts Reports 81222; Lane v Holloway [1968] 1 QB 379, 386–7 per Lord Denning.

27.

[1976] VR 331 at 339; similarly, Hilton v Wallace (1989) Aust Torts Reports 80-231; Smith v Emerson (1986) Aust Torts Reports 80-022.

28.

Hegarty v Shine (1878) 14 Cox CC 145. But would Hegarty v Shine be decided in the same way today if, eg, the plaintiff had been infected with AIDS in circumstances where the defendant had misrepresented his or her state of health? Cf R v Cuerrier (1996) 141 DLR (4th) 503 (BC CA).

29.

(1957) 98 CLR 249. The same principle was applied in R v Mobilio [1991] 1 VR 339 (CCA); R v Linekar [1995] 3 All ER 69 (consent to intercourse obtained by fraudulent misrepresentation as to payment therefor); similarly, R v Winchester [2011] QCA 374.

30.

Cf Graham v Saville [1945] 2 DLR 489. Legislation in some states may provide otherwise; see, eg Criminal Code (Qld) s 348(2)(f).

31.

R v Young (1878) 38 LT 540; 14 Cox CC 114; cf R v Jackson (1822) Russ & Ry 487; 168 ER 911; and R v Saunders (1838) 8 Car & P 265; 173 ER 488.

32.

R v Williams [1923] 1 KB 340.

33.

Yet in Latter v Braddell (1881) 50 LJQB 448, a servant who complied, reluctantly, crying and under protest, with an order of her mistress that she be medically examined to check whether she was pregnant, was held to have consented.

34.

Warner v Riddiford (1858) 4 CB (NS) 180. And see Norberg v Wynrib (1992) 92 DLR (4th) 449 (SCC) — unequal power between the parties and the exploitative nature of their relationship removed the possibility of the appellant’s providing meaningful consent to the sexual contact.

35.

Arguably, impersonation of a police officer may give rise to actual or implicit threats or to intimidation, in which event ‘it is not so much the fraud or the deceit which makes the consent ineffective, but the intimidation or threats which accompany or follow from the fraud of a false pretence’: Michael v Western Australia (2008) 183 A Crim R 66 (CA) at [368], per Heenan AJA.

36.

See Kaimowitz v Michigan Department of Mental Health (Circuit Court, Michigan, 1973, unreported), reproduced in Brooks, Law, Psychiatry and the Mental Health System, 1974, pp 902–21, esp pp 911–13.

37.

[1984] QB 524 at 556; 1 All ER 1036 at 1043. In this regard the court cited with approval the decision of McCowan J at first instance: [1983] 3 All ER 589 at 597; [1984] QB 524 at 535.

38.

There is a presumption of competence to consent, which extends to those who have severe

physical disabilities. In Re B (adult: refusal of medical treatment) [2002] 2 All ER 449 at [89] the court held that, in any assessment of such competence, dependence must be placed on the assessment of the medical profession. 39.

Airedale NHS Trust v Bland [1993] AC 789 at 891; 1 All ER 821 at 889 per Mustill LJ.

40.

St George’s Healthcare NHS Trust v S [1999] Fam 26 at 43; [1998] 3 All ER 673 at 685.

41.

Ibid at 50; 692.

42.

Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 102; [1992] 4 All ER 649 at 653 (CA).

43.

Chatterton v Gerson [1981] QB 432 at 443; 1 All ER 257 at 265 per Bristow J.

44.

The leading authority is Canterbury v Spence (1972) 464 F 2d 772.

45.

Sidaway v Governors of Bethlem Royal Hospital and the Maudsley Hospital [1984] QB 493 at 511; 1 All ER 1018 at 1026 per Donaldson MR. On the further appeal to the House of Lords the plaintiff’s case was argued in negligence only: [1985] AC 871; 1 All ER 643. See also Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 115; [1992] 4 All ER 649 at 663 per Lord Donaldson MR (CA).

46.

See Reibl v Hughes (1980) 114 DLR (3d) 1 at 10 per Laskin CJC.

47.

Chatterton v Gerson [1981] QB 432 at 444; 1 All ER 257 at 266 per Bristow J.

48.

Sidaway v Governors of Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871; 1 All ER 643 (HL). Also Hart v Herron (1984) Aust Torts Reports 80-201 at 67,823.

49.

See F v R (1982) 29 SASR 437 at 438 per Mohr J, a view not challenged on appeal to the Full Court: see (1983) 33 SASR 189 at 190 per King CJ.

50.

(1992) 175 CLR 479 at 490; 109 ALR 625 at 633 — accordingly, an allegation by a patient of lack of sufficient information on which to base consent to a medical procedure sounds in negligence, not trespass.

51.

Accordingly, where the alleged wrongful act consists of the continuation of a surgical procedure commenced within the scope of a consent, absence of consent may be difficult to establish: McDonald v Ludwig [2007] QSC 28.

52.

In WA the Law Reform Commission recommended the introduction of such a scheme: LRC of WA, Discussion Paper on Medical Treatment for Minors, Project No 77, June 1988, but that proposal has not been implemented.

53.

In England the matter is regulated by the Family Law Reform Act 1969, s 8 of which provides that a minor over 16 may effectively consent to surgical, medical and dental treatment. With respect to children under 16 the Act preserves the common law: s 8(3).

54.

[1986] AC 112; [1985] 3 All ER 402 (HL).

55.

Mrs Gillick’s attempt to ensure that no girl under 16 could lawfully be given the pill without parental consent consequently failed.

56.

Gillick has been relied on as the authority for guidelines for the treatment of children in clinics run by the Family Planning Assoc of WA (a copy of these guidelines appears in Appendix IV, LRC of WA, Discussion Paper on Medical Treatment for Minors, Project No 77, June 1988).

57.

J v Lieschke (1987) 162 CLR 447 at 452; 69 ALR 647 at 649 per Wilson J; Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 at 237; 106 ALR 385 at 394.

58.

Cf K v Minister for Youth and Community Services [1982] 1 NSWLR 311. The court held that s

49(2) of the Minors (Property and Contracts) Act 1970 (NSW) took away the right of a minor to sue for assault and battery, but did not confer a right to give a valid consent to medical treatment which ‘sets at nought a guardian’s power in this area’ (per Helsham J at 321). 59.

Re D [1976] Fam 185; 1 All ER 326 and see Re B [1981] 1 WLR 1421. As to the situation where a parent refuses to allow a child to have a blood transfusion, see Young, The Law of Consent, 1986, p 104.

60.

Re A (children) (conjoined twins: surgical separation) [2001] Fam 147; [2000] 4 All ER 961 (CA).

61.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 183–4; [1985] 3 All ER 402 at 420; endorsed by the High Court in Marion’s case (1992) 175 CLR 218 at 237–8; 106 ALR 385 at 394–5.

62.

Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 at 84; [1992] 4 All ER 627 at 639–40 per Lord Donaldson MR (CA); the situation in Canada is similar: AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181.

63.

(1992) 175 CLR 218; 106 ALR 385.

64.

But it has been used, eg, to protect a child from an unsuitable arranged marriage: A Local Authority v Ma, Sa, Na [2005] EWHC 2942 (Fam); and to detain a child indefinitely in a secure unit, and to restrain and medicate him as the circumstances may require: Director-General, Dept of Community Services; Re Thomas [2009] NSWSC 217.

65.

Re B (a minor) [1988] AC 199 at 205–6; [1987] 2 All ER 206 at 214 per Lord Templeman (HL); Marion’s case (1992) 175 CLR 218 at 232–5; 106 ALR 385 at 390–2.

66.

Marion’s case (1992) 175 CLR 218 at 250; 106 ALR 385 at 404.

67.

(1989) FLC 92-007 at 77,260.

68.

Adopting the definition of ‘therapeutic’ of the House of Lords in Re B (a minor) [1988] AC 199 at 211; [1987] 2 All ER 206 at 219 as connoting the treatment of some malfunction or disease.

69.

See Kennedy, ‘Court Consent for Non-therapeutic Medical Procedures’ (1989) 24(6) Australian Law News 34; Simpson, ‘Judges at Odds’ (1989) 14(3) Legal Services Bulletin 102.

70.

Marion’s case (1992) 175 CLR 218 at 259–60; 106 ALR 385 at 412. Cf Brennan J’s criticism of the ‘best interests’ approach, at 270ff and 420ff, respectively. In P v P (1994) 181 CLR 583 at 612; 120 ALR 545 at 564 Brennan J characterised as ‘speculative’ the opinion that a particular child will be better off sterilised.

71.

(1994) 181 CLR 583; 120 ALR 545. See comment by McSherry, ‘The High Court and NonTherapeutic Sterilisation of Intellectually Disabled Children’ (1994) 2 Journal of Law and Medicine at 6–7;Tate, Carney and Deane,‘Legal Regulation of Sterilisation: The Role of Guardianship Tribunals in NSW and Victoria’ (1994) Australian Journal of Family Law 141–65.

72.

As to the question whether a patient who, acting under the influence of, say, a close relative refuses treatment, lacks capacity, see Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113– 14; [1992] 4 All ER 649 at 662 per Lord Donaldson MR (CA).

73.

T v T [1988] Fam 52; 1 All ER 613.

74.

Ibid at 67–8; 625.

75.

The House of Lords has since confirmed the legality of such operations provided the decision to operate was taken in the ‘best interests’ of the patient: Re F (Mental Patient: Sterilisation) [1990] 2 AC 1; [1989] 2 All ER 545; St Georges’ Healthcare NHS Trust v S [1999] Fam 26 at 44;

[1998] 3 All ER 673 at 686; Re S (Adult Patient: Sterilisation) [2001] Fam 15 (CA). In such cases the doctor need not obtain a declaration from the court although the court could usefully assist in deciding whether the procedure was in fact in the patient’s ‘best interests’. 76.

Wilson v Pringle [1987] QB 237; [1986] 2 All ER 440. In such a situation the next of kin has no legal right either to consent or refuse consent on behalf of the patient: Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 103; [1992] 4 All ER 649 at 653 per Lord Donaldson MR (CA).

77.

See 6.20ff.

78.

See 6.49–6.50. Some emergency procedures are sanctioned by legislation, eg, Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13.

79.

Application of Justice Health; re a Patient [2011] NSWSC 432 at [5].

80.

As to the situation under the Qld Criminal Code, see Lergesner v Carroll [1991] 1 Qd R 206; also commentary by O’Regan, ‘Consent to Assaults Under the Queensland Criminal Code’ (1993) 17 UQLJ 287–91; Kell, ‘Consent to Harmful Assault under the Queensland Criminal Code: Time for a Reappraisal?’ (1994) 68 ALJ 363–78.

81.

[1977] QB 94; [1976] 3 All ER 533; the Court of Appeal at the same time held that a plea of ex turpi causa might also be open to the defendant.

82.

Similarly, Barnes v Nayer (1986) The Times, 19 December.

83.

[1967] Qd R 32 at 40–1.

84.

Citing with approval Burrough J in R v Billingham, Savage and Skinner (1825) 2 C & P 234; 172 ER 106.

85.

[1976] VR 331 at 340.

86.

A licence to enter land in order to see a spectacle contains an implied condition that the licensee will behave in a reasonable manner: Duffield v Police [1971] NZLR 381 at 384 per Macarthur J.

87.

Fisher v Ellerton (FC(WA), 16 October 2001, BC200106302, unreported) [27].

88.

Kuru v New South Wales (2008) 246 ALR 260; 82 ALJR 1021.

89.

[1916] VLR 681 at 684–5.

90.

McGowan v Chief Constable of Kingston upon Hull [1968] Crim LR 34.

91.

Pringle v Everingham (2006) 46 MVR 58 at [80]–[81] (NSWCA) (police allowed to complete breath test), but cf Kuru v New South Wales (2008) 246 ALR 260; 82 ALJR 1021 at [51] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

92.

(1937) 56 CLR 605 at 631. In such a case the licensee may have a remedy for breach of contract.

93.

Per Lord Parker CJ in Robson v Hallett [1967] 2 QB 939 at 952–3; 2 All ER 407 at 413; in Dehn v Attorney-General [1988] 2 NZLR 564 two police officers, who had initially entered premises under an implied licence to do so, were held not to be trespassers since they did not ‘tarry upon the property for more than a reasonable time when the licence was emphatically revoked’ (per Tipping J at 573); aff’d [1989] 1 NZLR 320(CA).

94.

Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 631.

95.

Prior v Kemp (FC(WA), 16 November 2001, BC200107134, unreported).

96.

Quite possibly, an action for a breach of contract may lie.

97.

Re B (Adult: refusal of medical treatment) [2002] 2 All ER 449 (tetraplegic patient request for ventilator to be turned off).

98.

Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97 at 111–12 per Brooking J.

99.

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 388–9 per O’Connor J.

100. Cf Herd v Weardale Steel Coal & Coke Co [1915] AC 67 (HL). 101. See Chapter 10. 102. As to the relationship between contributory negligence and the duty to mitigate in this context, see Uzinterimpex JSC v Standard Bank Plc [2008] EWCA Civ 819 at [54]ff per Moore-Bick LJ. 103. Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644; Grantham Homes Pty Ltd v Interstate Permanent Building Society Ltd (1979) 37 FLR 191; Day v Bank of New South Wales (1978) 18 SASR 163 (all concerning the fraudulent appropriation of cheques). Also, Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171, on the basis that an owner owes no duty to safeguard its property; but see [59]. 104. Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153; NSW v Riley (2003) 57 NSWLR 496 (CA) at [104]. However, the court went on to hold, at [107], that the defence is available for the indirect and unintended consequences of the trespass. 105. For example, Bray CJ in Day v Bank of New South Wales (1978) 18 SASR 163 at 175 held that ‘[t]here is no hint of any such possibilities that I have been able to discover in the long history of the action of conversion at common law … yet many plaintiffs should have failed if the defence had been open’. See, too, Co-operative Group (CWS) Ltd v Pritchard [2011] 3 WLR 1272; [2012] 1 All ER 205 (CA) at [32]ff per Aikens LJ. 106. Each state and territory has its own apportionment legislation: see 10.15. 107. Per Samuels J in Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644 at 656. Also, Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [127] (Basten JA); cf the approach adopted by McColl JA who was prepared to consider contributory negligence as defence on the assumption that both parties considered it to be available as such at [27]. See, too, Perpetual Trustees Australia Ltd v Schmidt [2010] VSC 67 at [223ff]: since unconscionable conduct does not involve negligence, it cannot give rise to a defence of contributory negligence. 108. [1950] NZLR 878 (CA). This decision was followed in Lumsden & Co v London Trustee Savings Bank [1971] 1 Lloyd’s Rep 114. 109. A fact commented on by Bray CJ in Day’s case (1978) 18 SASR 163 at 175. 110. [1974] 2 NZLR 597 at 603. The respondent’s contributory negligence consisted in his use of abusive language on the occasion of the assault, as viewed against a prior background of hostility, which included threats of violence. 111. Lane v Holloway [1968] 1 QB 379 at 392–3; [1967] 3 All ER 129 at 135. Also Murphy v Culhane [1977] QB 94; [1976] 3 All ER 533 (CA); Barnes v Nayer (1986) The Times, 19 December. But see the criticism of these cases in Co-operative Group (CWS) Ltd v Pritchard [2011] 3 WLR 1272 at [40]ff. 112. [1989] 2 NZLR 734 at 757. 113. It is doubtful that any provocation by the plaintiff as such will provide a defence to an action for assault and battery. This is particularly so where the provocative act is not unlawful: Langridge v Fox (SC(WA), Pidgeon J, 5 August 1997, BC9703781, unreported). However, it may be a ground for preventing or reducing the award of exemplary damages which, but for the provocation, would have been awarded: Fontin v Katapodis (1962) 108 CLR 177 at 187 per Owen J.

114. So per Winneke CJ in Bennett v Dopke [1973] VR 239 at 240, ‘to raise the issue of self-defence there must be evidence to justify a conclusion that there was an occasion for the defendant to act in defence of himself’. There must be reasonable apprehension of an imminent attack: Bici v Ministry of Defence [2004] EWHC 786 (QB) at [42]. 115. Per McTiernan J in Fontin v Katapodis (1962) 108 CLR 177 at 182. Once the plaintiff proves the assault and battery complained of, the onus is on the defendant to prove the facts constituting justification: McClelland v Symons [1951] VLR 157 at 166 and 169; Miller v Sotiropoulos (CA(NSW), 18 August 1997, BC9703844, unreported) at 10; Underhill v Sherwell (CA(NSW), 18 December 1997, BC9707083, unreported) at 10. 116. (1705) 2 Salk 642. 117. [1971] AC 814 at 831–2: 1 All ER 1077 at 1088; referred to with approval in Zecevic v DPP (Vic) (1987) 162 CLR 645 at 661; 71 ALR 641 at 652. The question to be asked is ‘whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did’. 118. (1987) 162 CLR 645 at 663; 71 ALR at 653. There is no deviation from this rule in respect of actions by members of the armed forces: R v Clegg [1995] 1 AC 482; 1 All ER 334 (HL). 119. Cf Holmes J in the Holmes-Laskie Letters I, 335 on the supposed duty in law to retreat to the wall before killing an assailant: ‘I think it an instance of an early statement ossifying by repetition into an absolute principle when rationally it is only one of the circumstances to be considered with the rest in deciding whether the defendant exceeds the reasonable limits’. Similarly, Dixon CJ in R v Howe (1958) 100 CLR 448 at 462–3, endorsing the view of the Supreme Court of South Australia in R v Howe [1958] SASR 95, held that ‘to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self defence is to be made out … but there can be no doubt at this day that whether a retreat could and should have been made is an element for the jury to consider as entering into the reasonableness of the defendant’s conduct’. And see Zecevic v DPP (Vic) (1987) 162 CLR 645 at 663; 71 ALR 641 at 653; Miller v Sotiropoulos (CA(NSW), 18 August 1997, BC9703844, unreported) at 10, 11. 120. (1962) 108 CLR 177 at 182. 121. McClelland v Symons [1951] VLR 157 at 162. The court accepted the evidence that the plaintiff had pointed a loaded rifle at the defendant, uttered oral threats and induced a reasonable fear of death or grave bodily injury. It held that this would be justification for one blow but if a second blow had been struck at a time when the plaintiff had been disarmed and was lying helpless on the ground, the force used would not have been reasonable. 122. Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975; 3 All ER 573 at [77] per Lord Carswell; also [18], [53], [85]. The defence differs in this regard from that available in the criminal law where honest belief alone is sufficient to establish the defence: see Fordham, ‘A Policeman, a Gun and a Fatal Mistake – Self-Defence in the Tort of Battery’ (2009) Sing J Leg Stud 243. 123. Cook v Beal (1697) Ld Raym 176; Cockcroft v Smith (1705) 2 Salk 642; Dale v Wood (1822) 7 Moore CP 33. In each case the force used was unnecessarily disproportionate for self-defence. 124. So, Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 471 (HL) per Lord Oaksey, obiter: ‘If you are attacked by a prize-fighter you are not bound to adhere to the Queensberry Rules in your defence’. 125. (1962) 108 CLR 177 at 181–2. See, too, Bennett v Dopke [1973] VR 239 at 240 where Winneke CJ quoted with approval the exposition of the concept of self-defence by the Privy Council in

Palmer v R [1971] AC 814 at 831–2; 1 All ER 1077 at 1088 to the effect that ‘if there has been attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly thought was necessary that would be most potent evidence that only reasonable defensive action had been taken’. Is it reasonable to repel ordinary violence (fists) by means of a deadly weapon? See McClelland v Symons [1951] VLR 157 at 167. 126. Barfoot v Reynolds (1734) 2 Stra 953. 127. Seaman v Cuppledick (1615) Owen 150; Tickell v Read (1773) Lofft 215; contra Leward v Basely (1695) 1 Ld Raym 62. 128. A-G’s Reference (No 2 of 1983) [1984] QB 456; 1 All ER 988; Leward v Basely (1695) 1 Ld Raym 62. 129. Pearce v Hallett [1969] SASR 423 at 426. 130. Goss v Nicholas [1960] Tas SR 133 at 144; Saler v Klingbiel [1945] SASR 171 at 174; Pearce v Hallett [1969] SASR 423 at 426. 131. R v Thomas [1991] 3 NZLR 141; R v Christiansen [2001] NZCA 246. The defence extends to action taken to counter excessive force by police in making an arrest. 132. This defence has been codified in NZ: Crimes Act (NZ) 1961 s 48 and in some Australian jurisdictions, eg, Criminal Code (Cth) s 10(4); Criminal Code (Qld) s 273; Criminal Law Consolidation Act 1935 (SA) s 15(3); Criminal Code (WA) s 250. 133. Goss v Nicholas [1960] Tas SR 133 at 144. 134. Saler v Klingbiel [1945] SASR 171 at 174. 135. Goss v Nicholas [1960] Tas SR 133, n 117. The onus of proving that the force used was reasonable lies on the defendant: Pearce v Hallett [1969] SASR 423 at 429; Howard v Wing [2000] TASSC at [38]. 136. (1975) 54 DLR (3d) 661 at 666. 137. A bystander may also use force to arrest a person committing a breach of the peace in his or her presence: see 6.37. 138. (1800) 2 Bos & P 260 at 265 per Chambre J. See also Coupey v Henley, Whole & Webster (1797) 2 Esp 540. 139. See 6.30ff. 140. [1945] SASR 171 at 172. Evidence was led to show that Klingbiel had hit Saler in retaliation for the latter’s bullying of a one-legged man as well as his sister. 141. This defence has been codified in Criminal Code (Qld) s 267; Criminal Code (Tas) ss 40–42 and Criminal Code (WA) s 254; see also Criminal Law Consolidation Act 1935 (SA) s 15A. 142. See Criminal Code (Qld) s 274; Criminal Code (Tas) s 43; and Criminal Code (WA) s 251. 143. Holmes v Bagge (1853) 1 E & B 782; Dean v Hogg (1834) 10 Bing 345. 144. (1884) 51 LT 746. 145. [1945] SASR 40. 146. Roberts v Taylor (1845) 1 CB 117 at p 126–7 per Tindal CJ. 147. Green v Bartram (1830) 4 C & P 308; Moriarty v Brooks (1834) 6 C & P 684.

148. Haddrick v Lloyd [1945] SASR 40. 149. Tullay v Reed (1823) 1 C & P 6 per Park J; cf Green v Goddard (1702) 2 Salk 641; Polkinhorn v Wright (1845) 8 QB 197. In Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 at 157, Brooking J held that while it may be proper to use a greater degree of physical force to expel a drunken person from one’s premises, this force, to be reasonable, must be ‘the natural and lawful consequence of his own misbehaviour’. In Revill v Newbery [1996] QB 567 at 580; 1 All ER 291 at 301–2 (CA), Millett LJ observed that ‘[v]iolence may be returned with necessary violence … The assailant … may be met with reasonable force but no more’. 150. Collins v Renison (1754) Say 138; in Khammash v Police (SC(SA), Gray J, 9 March 2001, BC200100754, unreported) reasonable force did not include manhandling a woman thought to have stolen a wallet. 151. Barnard v Evans [1925] 2 KB 794. 152. Hamps v Darby [1948] 2 KB 311; 2 All ER 474 (CA). 153. Moriarty v Brooks (1834) 6 C & P 684. 154. Stroud v Bradbury [1952] 2 All ER 76. 155. (1984) 155 CLR 614 at 640; 56 ALR 417 at 436 per Wilson J. 156. Citing Potter v Faulkner (1861) 1 B & S 800 at 805; 121 ER 911 at 913. 157. Thereby reversing the decision of the Full Court in Shaw v Hackshaw [1983] 2 VR 65 and reinstating the decision at first instance. 158. Cited in [1983] 2 VR 65 at 105. 159. [1983] 2 VR 65 at 101. 160. [2001] EWCA Crim 2245 at [7]. 161. The use of force in defence of property is permitted under the Criminal Code (Qld) ss 274–279; Criminal Code (Tas) ss 41–45, Criminal Code (WA) ss 251–255 and Criminal Code (Cth) s 10(4) provided it is not intended and is not likely to cause death or grievous bodily harm. The Criminal Law Consolidation Act 1935 (SA) s 15a(1) similarly prohibits intentional or reckless killing in defence of property but a partial defence is provided under s 15a(2). 162. See Deane v Clayton (1817) 7 Taunt 489. 163. Bird v Holbrook (1828) 4 Bing 678, distinguished in Jordin v Crump (1841) 8 M & W 782 (setting with notice dog spears for the purpose of protecting game against dogs held lawful). In A-G’s Reference (No 2 of 1983) [1984] QB 456; 1 All ER 988 the accused had armed himself with petrol bombs to repel rioters who had earlier smashed his shop. The Court of Appeal held he was entitled to acquittal if his object was to protect his family or his property from imminent attack and the force employed was reasonable. 164. Commentaries, 17th ed, 1830, Vol III, p 3; no modern cases have been traced. 165. [1961] 2 QB 143; 1 All ER 683. The defence failed because, applying this test, the court found that the dog presented no real and present or imminent danger to sheep, lambs or any other animal and that, at most, it might in the future have chased sheep which were in lamb, or attack the lambs when born. 166. Cf Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 at 362 where the High Court expressed its concern about the test of necessity being unduly ‘strict’. 167. An argument that it was necessary to trespass on hospital property in order to prevent pregnant

women from undergoing abortions failed in Police v O’Neill [1993] 3 NZLR 712, Holland J noting at 719 that it was not necessary ‘to protect these women from something which they desired and in respect of which no illegality has been shown’. Similarly, Wilcox v Police [1994] 1 NZLR 243 where the defence of necessity was held to be unavailable to protect the life of a foetus. 168. In Proudman v Allen [1954] SASR 336 the defendant’s intervention, aimed at saving a car from crashing into another vehicle, resulted in the car running over an embankment and into the sea. 169. Perka v The Queen [1984] 2 SCR 232 at 250–252. 170. [1971] Ch 734; 2 All ER 175 (CA); similarly, Dublin City Council v Gavin [2008] IEHC 444. Nor is the defence available to justify trespass to property committed in the course of political protests: Attorney-General v Leason [2011] NZHC 1053. 171. Ibid at 744; 179 respectively. 172. Cope v Sharpe (No 2) [1912] 1 KB 496 (CA); Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985 at 995 per Taylor J. ‘Necessity may justify an initial arrest to secure a possibly violent individual but may not justify that individual’s continued detention’: NSW v Riley (2003) 57 NSWLR 496 at [83ff], per Hodgson JA. 173. [1953] 2 All ER 1204 at 1209–10. 174. R v Dudley and Stephens (1884) 15 Cox CC 624; 14 QBD 273 (starving people adrift in lifeboat not entitled to kill a fellow passenger for food); US v Holmes (1842) 1 Wall Jr 1 (passengers in lifeboat not entitled to throw others overboard to lighten boat); Johnson v Western Australia (2009) 40 WAR 116 (CA) at [98] per Owen and Miller JJA. 175. Although presumably such actions may be justifiable on other grounds, such as self-defence or defence of another person. As to whether it is for the parliament or the courts to decide whether voluntary euthanasia or assisted suicide may ever be justified by the defence of necessity, see Nicklinson v Ministry of Justice [2012] EWHC 304 (QB). 176. Re A (children) (conjoined twins: surgical separation) [2001] Fam 147; [2000] 4 All ER 961 (CA) (see esp at 219; 1032ff per Brooke LJ); Queensland v Nolan [2002] 1 Qd R 454 at [19]. 177. R v Bournewood Community and Mental Health NHS Trust; Ex parte L [1999] 1 AC 458 at 490; [1998] 3 All ER 289 at 302. 178. (1940) 66 CLR 344 at 362. 179. Yb 8 Ed 4 f 23 Mich pl 41 (per counsel);Yb 21 H 7, 27 (dictum of Kingsmill J — the point was taken on demurrer but no judgment given to it); obiter dictum in The Case of the King’s Prerogative in Saltpetre (1606) 12 Co Rep 12. 180. The Case of the King’s Prerogative in Saltpetre (1606) 12 Co Rep 12; Dewey v White (1827) Mood & M 56 (defendant justified in destroying plaintiff’s chimney because of fire risk that it would otherwise fall on highway below); fire brigades nowadays have statutory authority to commit such trespasses. 181. [1956] AC 218 at 235; [1955] 3 All ER 864 at 866 per Earl Jowitt (reversing the judgment of the Court of Appeal at [1954] 2 QB 182; 2 All ER 561 and agreeing in this regard with Devlin J at first instance: [1953] 2 All ER 1204). 182. Dehn v Attorney-General [1988] 2 NZLR 564 (although the defence failed for want of proof that anyone was in imminent danger); also Shattock v Devlin [1990] 2 NZLR 88 at 106ff. The onus in these cases is on the defendant to prove all the elements of the defence: Sherrin v Haggerty [1953] OWN 962 at 963.

183. Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. 184. No: Bohlen, ‘Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality’ (1926) 39 Harv L Rev 307 at 316;Williams,‘The Defence of Necessity’ (1953) 6 Curr Leg Prob 216. Yes: Scott and Hildesley, Case of Requisition, 136 et passim; Buller J (obiter) in British Cast Plate Manufacturers (Governor & Co) v Meredith (1792) 4 Term Rep 794, at 797; Ambiguous: dicta in Case of the King’s Prerogative in Saltpetre (1606) 12 Co Rep 12 at 82. Inconclusive: obiter dicta in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75; [1964] 2 All ER 348 (HL). 185. (1909) 26 TLR 139. 186. Leigh v Gladstone was regarded as doubtful authority by Lee J in Schneidas v Corrective Services Commission (SC(NSW), 8 April 1983, unreported); also by Powell J in Department of Immigration v Mok (SC(NSW), 30 Sept 1992, unreported). In Secretary of State for the Home Department v Robb [1995] Fam 127 at 130; [1995] 1 All ER 677 at 681, Thorpe J remarked that the decision ‘can be consigned to the archives of legal history’. See also Zellick, ‘The Forcible Feeding of Prisoners: An Examination of the Legality of Enforced Therapy’ (1976) PL 15; Brazier, ‘Prison Doctors and Their Involuntary Patients’ (1982) PL 282. 187. For example, Thor v Superior Court (1993) 855 P 2d 375; Re Caulk (1984) 480 A 2d 93; Secretary of State for the Home Department v Robb [1995] Fam 127 at 130; [1995] 1 All ER 677 at 682; Airedale NHS Trust v Bland [1993] AC 789 at 826; 1 All ER 821 at 851 per Hoffmann LJ (CA). 188. Malette v Shulman (1990) 67 DLR (4th) 321 (Ont CA). 189. In Murray v McMurchy [1949] 2 DLR 442 the defence failed because of the finding that a second operation, performed by the surgeon in the course of a first operation to which the patient had consented, was only convenient but not strictly necessary to perform. 190. There is no English or Australian authority (contra in USA: Vincent v Lake Erie Transportation Co (1910) 124 NW 221) that the privilege is incomplete in the sense that the defendant must compensate the plaintiff for the actual loss sustained by him; an obiter dictum of Tindal CJ in Anthony v Haney (1832) 8 Bing 186 at 193 sometimes cited as such authority is solely on recaption. 191. Nield v London and North Western Ry Co (1874) LR 10 Exch 4 at 7 per Bramwell B; Maxey Drainage Board v Great Northern Ry Co (1912) 106 LT 429 at 430 per Lush J (Div Ct); Gerrard v Crowe [1921] 1 AC 395 (PC). If the defendant’s land is already flooded the defendant may not divert that floodwater on to the plaintiff’s land: Whalley v Lancashire Ry Co (1884) 13 QBD 131. 192. Greyvensteyn v Hattingh [1911] AC 335 (PC) (the defendant entered land of a third party while diverting them). 193. [1954] SASR 336 at 341 per Hannan AJ. 194. Sherrin v Haggerty [1953] OWN 962. 195. [1985] 2 All ER 985; and see Beckingham v Port Jackson & Manly Steamship Co [1957] SR (NSW) 403 (FC). 196. Even though the plaintiff’s original taking was lawful: so held on demurrer in Blades v Higgs (1861) 10 CB NS 713, although in fact the original taking in that case was unlawful. When the sergeant in charge of a police station unlawfully withholds the plaintiff’s car keys, the plaintiff is not entitled to remain in the station until the sergeant hands them over: R v Knightsbridge Crown Court; Ex parte Umeh [1979] Crim LR 727.

197. (1861) 10 CB NS 713; aff’d on other grounds (1865) 11 HL Cas 621; this is an extension of the former right of recaption, but must now be accepted as settled law. In view of the demurrer, the case also seems to decide that recapture need not follow immediately or in fresh pursuit. 198. Followed in Zimmler v Manning [1863] 2 SCR 235 at 240 per Stephen CJ; Abbott v NSW Monte de Piete Co (1904) 4 SR (NSW) 336 at 339–40, per Darley CJ; De Lambert v Ongley [1924] NZLR 430. 199. (2002) 58 NSWLR 101 (CA); but see the powerful dissent of Handley JA whose examination of the authorities also throws doubt on the majority contention that Blades is not based on precedent. 200. Law Reform Committee (Eng) report, Conversion and Detinue, Cmnd 4774, 1971, [121]. 201. (1838) 3 M & W 483. 202. [1918] St R Qd 168. The action was one for trespass to land. 203. (1893) 14 LR (NSW) 263 at 267–8. A in this case (as transferee of an interest in the goods under a mortgage) had taken possession of the goods in a hotel belonging to B, at the request and with the consent of B. At a later stage, B, without notice, wrongfully and forcibly ejected A’s agent and wrongfully detained the goods against the will of A and of his agent, whereupon A, with such force as he might lawfully employ, entered the hotel and peaceably seized the goods. 204. In British Economical Lamp Co Ltd v Empire Mile End Ltd (1913) 29 TLR 386 (Div Ct) it was held not to be detinue where the lessor of a theatre refused to allow the owner of chattels, which a former tenant of the premises had hired from him, to enter the premises in order to collect them. 205. (1832) 8 Bing 186. 206. After stating an adequate (and in the present context irrelevant) ground for the decision, Tindal CJ said (at 191): ‘… we are unwilling to decide the case on so narrow a ground’ and added the rule set out in the text. 207. Residential Tenancies Acts: NSW, 1987, s 72; Qld, 1994, s 219; SA, 1978, s 80; Vic, 1980, s 146; WA, 1987, s 80. 208. An owner is entitled to turn out squatters without the aid of the courts: McPhail v Persons Names Unknown [1973] Ch 447 at 456; 3 All ER 393 at 396 per Lord Denning MR (CA). 209. Haniotis v Dimitriou [1983] 1 VR 498 at 500 per Brooking J, citing with approval Polkinhorn v Wright (1845) 8 QB 197 at 206–7; 115 ER 849 at 853. 210. Haniotis v Dimitriou [1983] 1 VR 498. 211. The defendant is obliged to prove the nuisance: Randwick Municipal Council v Commissioner for Government Transport [1967] 1 NSWR 428 at 440–1. 212. [1895] AC 1 (the defendant did not actually set foot on the plaintiff’s land in abating the nuisance). 213. Lawlor v Johnston [1905] VLR 714. 214. Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co [1927] AC 226 at 244 per Lord Atkinson. 215. Lawton LJ in R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 2 QB 458 at 473; [1981] 3 All ER 826 at 834 (CA) held that the use of the remedy was to be discouraged and it should not be used at all if an alternative remedy was available.

216.

Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co [1927] AC 226 at 245; cf Roberts v Rose (1864) 3 H & C 162; on appeal (1865) 4 H & C 103.

217. Traian v Ware [1957] VR 200 at 207 per Martin J. 218. Lemmon v Webb [1895] AC 1. Notice is otherwise necessary because the act of entering the land is prima facie a trespass. 219. Strong obiter dicta in the last-cited case and Jones v Williams (1843) 11 M & W 176. 220. Traian v Ware [1957] VR 200 at 207 per Martin J, who added that once the right to abate exists, there is no need to wait until damage actually occurs. 221. Jones v Williams (1843) 11 M & W 176. 222. (1846) 8 QB 757; followed reluctantly in Jones v Jones (1862) 1 H & C 1. 223. SC(NSW), 12 July 1985, BC8500699, unreported. 224. The Ella [1915] P 111; Louth Rural DC v West (1896) 12 TLR 477. 225. The basic principles of distress for rent are cogently set out by Simon Brown J in Evans v South Ribble Borough Council [1992] QB 757 at 764–5; 2 All ER 695 at 699. 226. See generally Sykes and Walker, The Law of Securities, 5th ed, 1993, p 94. 227. For a detailed treatment, see Williams, Liability for Animals, 1939, Pt 1. 228. In Turner v Driver [2005] TASSC 85 at [23], this defence failed on the grounds that the cattle ‘rescued’ had in fact been lawfully impounded pursuant to provisions of the Local Government Act 1993 (Tas). 229. But not elsewhere: Clement v Milner (1800) 3 Esp 95. 230. Distress of an animal damage feasant has been abolished by the Animals Act 1977 (NSW) s 5; Civil Law (Wrongs) Act 2002 (ACT) s 213; and modified by the Law of Animals Act 1962 (Tas) Pt II. 231. And see Ambergate Ry Co v Midland Ry Co (1853) 2 E & B 793; 118 ER 964 (railway locomotive). 232. Jamieson’s Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 at 150 per Quilliam J. 233. Swenson v Drayton Shire Council [1932] St R Qd 98 at 112. 234. Collins v Renison (1754) Say 138; 96 ER 830. 235. [1932] St R Qd 98 at 112, 117 (plaintiff’s cattle, while drinking at a creek and subject to her daughter’s control, were seized and impounded by the local authority). 236. Brough v Wallace (1863) 2 W & W 195. 237. Storey v Robinson (1795) 6 Term Rep 138. 238. [1984] 2 NZLR 144 at 150 per Quilliam J. 239. Williams, Liability for Animals, 1939, pp 70–6, examines the slight authorities. In the case of illegally parked motor cars the authorities are divided as to whether towage fees constitute damage: R v Howson (1966) 55 DLR (7d) 582 at 597 per Laskin JA (Ont CA) (no); cf Christopher v Police (HC(NZ), Cooke J, 22 April 1974, unreported) (yes) and Jamieson’s Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 at 148 per Quilliam J (yes). 240. Burt v Moore (1793) 5 Term Rep 329.

See Sutton, Personal Actions at Common Law, 1929, pp 66–71. The action has been abolished in 241. the Northern Territory: Law of Property Act (NT) s 125. 242. (1856) 6 E & B 842. 243. Coleridge J expressly left the point open in Mennie v Blake (1856) 6 E & B 842, but see Mellor v Leather (1853) 1 E & B 619. 244. London County Council v Hackney Borough Council [1928] 2 KB 588. 245. Swaffer v Mulcahy [1934] 1 KB 608. 246. Gibbs v Cruikshank (1873) LR 8 CP 454; Smith v Enright (1893) 63 LJQB 220 (Div Ct). 247. Per Cairns LJ in R v Reid [1973] QB 299 at 303; [1972] 2 All ER 1350 at 1353 (CA). 248. See Dobson v Dobson (1999) 174 DLR (4th) 1 (SCC), but cf Lynch v Lynch (1991) 25 NSWLR 411 (CA); Bowditch v McEwan (2002) 36 MVR 235 (Qld CA) and see 7.23. 249. In Ash v Lady Ash (1695) Comb 357 a daughter was able to sue her mother in trespass to the person; in Roberts v Roberts (1657) Hard 96 an infant obtained an injunction against her father to prevent waste. 250. For example, Children and Young Persons Act 1933 (UK) s 1(7). 251. Criminal Code (Tas) s 50. 252. Criminal Code (WA) s 257. 253. Criminal Code (Qld) s 280. 254. Higgs v Booth (SC(WA), 29 August 1986, unreported). 255. For example, R v Terry [1955] VLR 114 at 116–17 per Sholl J. 256. In Cramer v The Queen (28 October 1998, BC9805729, unreported) the Court of Criminal Appeal held that 10 strokes with a wooden slat applied to a five-year-old amounted to excessive force. 257. Corporal punishment is no longer sanctioned in New South Wales (Education Reform Act 1988 s 47(f)); Tas (Education Act 1994 s 82A); Australian Capital Territory (Education Act 2004 s 7(4)) or New Zealand (Education Act 1989 s 139A), nor in state schools in Queensland, South Australia, Victoria and Western Australia: see Cashmore and de Haas, Legal and Social Aspects of the Physical Punishment of Children, 1995, Appendix I. The Australian Law Reform Commission and the Australian Human Rights Commission have recommended that corporal punishment should be banned in all Australian schools: Seen and Heard: Priority for Children in the Legal Process, Report No 84, September 1997, Recommendation 50. 258. Fitzgerald v Northcote (1865) 4 F & F 656 (headmaster, boarding school); Ryan v Fildes [1938] 3 All ER 517 (assistant mistress, day school). Apprentices, too, may be disciplined: R v Terry [1955] VLR 114 at 118. The provisions of the Criminal Codes in Qld and WA referred to above confer this right on school teachers, but it may be exercised only in non-government schools: see the preceding note. 259. Fitzgerald v Northcote (1865) 4 F & F 656; Ryan v Fildes [1938] 3 All ER 517. 260. Fitzgerald v Northcote (1865) 4 F & F 656. 261. Cleary v Booth [1893] 1 QB 465 (fighting on the way to school); R v Newport (Salop) Justices, Ex parte Wright [1929] 2 KB 416 (Div Ct) (smoking in street after school). 262. King v Nichols (1939) 33 QJP 171; Byrne v Hebden; Ex parte Hebden [1913] St R Qd 233 at 235

(FC). 263. Hansen v Cole (1891) 9 NZLR 272 at 281 per Prendergast CJ. 264. Smith v O’Byrne; Ex parte O’Byrne (1894) 5 QLJR 126 at 127 per Cooper J. 265. R v Hopley (1860) 2 F & F 202 at 206; 175 ER 1024 at 1026 per Cockburn CJ. 266. Ryan v Fildes [1938] 3 All ER 517; there is a significant reference by Tucker J: ‘in these days’, at 520. 267. Craig v Frost (1936) 30 QJP 140 (defendant teacher ordered child not to gallop horse to and from school, whereas father permitted galloping. Held: since the order was reasonable in the interests of the children’s safety, teacher’s disciplinary powers overrode parental instructions). 268. See, for example, R v Terry [1955] VLR 114; Hole v Williams (1910) 10 SR (NSW) 638 at 648 per Cullen CJ. 269. Hole v Williams (1910) 10 SR (NSW) 638 at 649. 270. (1891) 9 NZLR 272 at 227ff. 271. Vol 1, p 453. 272. (1964) 111 CLR 16 at 29 per Kitto J. 273. Ibid at 25–6. 274. Aldworth v Stewart (1866) 4 F & F 957 at 961 per Channel B. 275. Hook v Cunard SS Co Ltd [1953] 1 All ER 1021. 276. Aldworth v Stewart (1866) 4 F & F 957. 277. The Criminal Code (WA) s 258 and the Criminal Code (Qld) s 281 entitle the master or other person in charge of a vessel or aircraft, for the purpose of maintaining good order and discipline, to use such force as he or she reasonably believes necessary and as is objectively reasonable under the circumstances. 278. The meaning of ‘arrest’ is examined by November, ‘The Meaning of Arrest, Unlawful Arrest and Arbitrary Detention’ (1993) NZLJ 54. 279. ALRC, Criminal Investigation, Report No 2 (Interim), 1975, [25]. 280. The historical development of the arrest warrant at common law is sketched in McArthur v Williams (1936) 55 CLR 324 at 365–6. 281. As to the required form of a warrant of arrest, see Justices Act 1886 (Qld) s 62; Summary Procedure Act 1921 (SA) s 20; Magistrates Court Act 1989 (Vic) s 57; Justices Act 1902 (WA) s 61; Magistrates Court Act 1930 (ACT) s 47; Justices Act 1928 (NT) s 20; Summary Proceedings Act 1957 (NZ) s 19. 282. Money v Leach (1765) 3 Burr 1692 at 1742; 97 ER 1050 at 1075. 283. Symes v Mahon [1922] SASR 447. 284. Galliard v Laxton (1862) B & S 363 at 372–3; 121 ER 1109 at 1112; but see Crimes Act 1900 (NSW) s 352. 285. In Albert v Lavin [1982] AC 546 at 565, Lord Diplock described this not only as a right of every citizen but also as a duty. This formulation was upheld in R (Laporte) v Chief Constable of Gloucester Constabulary [2007] 2 AC 105; 2 All ER 529 at [29] per Lord Bingham. 286. In Austin v Saxby [2007] EWCA Civ 989 the Court of Appeal considered whether preventative

action might be taken against persons who are not themselves actively involved in a breach of the peace or who do not reasonably appear to be threatening such a breach. 287. As to what constitutes a breach of the peace and whether it involves some element of violence, see State of NSW v Tyszyk [2008] NSWCA 107. 288. Timothy v Simpson (1835) 1 Cr M & R 757; 149 ER 1285. In Laporte the House of Lords held unanimously that the expression ‘about to be’ was to be equated with ‘imminent ‘ or ‘on the point of happening’: at [39ff], [62], [66], [101], [113–15] and [141]. It also rejected the proposition that action short of arrest may be taken to prevent a breach of the peace which is not sufficiently imminent to justify arrest: at [49] per Lord Bingham; [64]–[66] per Lord Rodger. 289. R v Howell [1982] QB 416; [1981] 3 All ER 383. But see caveat of Beldham LJ in Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705 at 711. For the meaning of breach of peace and apprehended breach, see R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 2 QB 458; [1981] 3 All ER 826 (CA). 290. This concept has now been sanctioned by the European Court of Human Rights in Steel v United Kingdom [1999] 28 EHRR 603 but was described in Chief Constable of Cleveland Police v McGrogan [2002] EWCA Civ 86 at [13] as ‘something of an anomaly in English law’. 291. Such as assault; however, to arrest without warrant the officer must actually witness the assault: R v James Smith (1876) 14 SCR (NSW) 419. 292. Police are not entitled to arrest someone for obstructing them in the execution of their duty unless the disturbance caused or was likely to cause a breach of the peace: Wershof v Commissioner of Police for the Metropolis [1978] 3 All ER 540 (CA). In order to prevent a breach of the peace, an officer is entitled to detain without arresting, and to use reasonable force in doing so, but must release or arrest when the threat to peace ends: Albert v Lavin [1982] AC 546; 3 All ER 878 (HL); cf Coleman v Watson & Shaw [2007] QSC 343. 293. Police powers of arrest are wider in this regard than those of private citizens in that the police are protected even if it transpires that no treason or felony had in fact been committed (Beckwith v Philby (1827) 6 B & C 635); whereas private citizens are protected only if the offence has been committed, although not necessarily by the person actually arrested: Walters v WH Smith & Sons Ltd [1914] 1 KB 595. 294. Criminal Code (Qld) Pt 4; Criminal Law Consolidation Act 1935 (SA) s 5D; Criminal Code (Tas) s 4; Crimes Act 1958 (Vic) s 322B; Criminal Code (WA) s 3; Crimes Act 1900 (ACT) s 9; Criminal Code (NT) s 3; Crimes Act 1961 (NZ) s 2(1). 295. An extension of powers has occurred in three principal areas, viz, where a person is found committing a misdemeanour or summary offence; where there is reasonable cause to suspect same; and where there is reasonable suspicion that a felony is about to be committed: Bishop, Criminal Procedure, 2nd ed, 1998, pp 117ff. 296. Crimes Act 1958 (Vic) s 457. 297. See, eg, per Wilson and Dawson JJ in Williams v R (1986) 161 CLR 278 at 305; 66 ALR 385 at 404; see also per Purchas LJ in Hill v Chief Constable of the South Yorkshire Police [1990] 1 All ER 1046 at 1051–2; Fleet v District Court of NSW [1999] NSWCCA 363 at [73]. 298. See, eg, Bales v Parmeter (1935) 35 SR (NSW) 182; Gillies v Procurator Fiscal, Elgin [2008] HCJAC 55, citing at [10] the presumption noted by Brennan J in Halliday v Nevill (1984) 155 CLR 1 at 15 that ‘when Parliament creates a novel power, it does not intend thereby to authorize the commission of a trespass to facilitate its exercise’. 299. Hazell v Parramatta CC [1968] 1 NSWR 165 at 175 per Isaacs J.

300. See, eg, per Mason and Brennan JJ in Williams v The Queen (1986) 161 CLR 278 at 296; 66 ALR 385 at 398. For a different view see ALRC, Criminal Investigation, Report No 2 (Interim), 1975, Ch 4. 301. Holtham v Metropolitan Police Commissioner (1987) The Times, 28 November (CA); Allen v Wright (1838) 8 C & P 522; if dicta of Lord Colonsay in Lister v Perryman (1870) LR 4 HL 521 at 542 are to the contrary they must be regarded as per incuriam: see Hicks v Faulkner (1881) 8 QBD 167 at 170 per Hawkins J; aff’d (1882) 46 LT 127 (CA). 302. Lister v Perryman (1870) LR 4 HL 521 (HL). For a reversal of the trial judge’s decision and a full analysis of the relevant factors, see McArdle v Egan (1934) 150 LT 412 (CA). 303. As to the difference between these two concepts, see George v Rockett (1990) 170 CLR 104 at 115–16 93 ALR 483 at 490. 304. The test is accordingly both subjective and objective — there must be reasonable and probable grounds for the officer’s subjective belief as to the guilt of the person arrested: Hayward v O’Keefe [1993] 1 NZLR 181 at 187 per Thomas J. 305. Hussien v Chong Fook Kam [1970] AC 942; [1969] 3 All ER 1626 (PC). It is not, however, necessary to adduce prima facie proof: New South Wales v Zreika [2012] NSWCA 37 at [26] per Sackville AJA. 306. [1942] VLR 69 at 72 per O’Bryan and Gavan Duffy JJ (FC). 307. Davis v Russell (1829) 5 Bing 354; Feldman v Buck [1966] SASR 236 at 239 per Napier CJ. 308. Jensen v Eleftheriou [1982] VR 184 at 187 per Lush J; Veivers v Roberts; Ex parte Veivers [1980] Qd R 226. 309. See McLachlan v Mesics (1966) 40 ALJR 204; Broughton v Williams (1932) 28 Tas LR 1 at 12. 310. Jensen v Eleftheriou [1982] VR 184 at 187; Jobling v Blacktown Municipal Council [1969] 1 NSWR 129. 311. Per Davies LJ in Wiltshire v Barrett [1966] 1 QB 312 at 329 (CA); followed in Shaw v Donaldson (1988) 78 ACTR 1 at 9 per Gallop J. 312. Luetich v Walton [1960] WAR 109. 313. Turner, Russell on Crime, 11th ed, 1958, pp 485ff. 314. See Criminal Code (Qld) s 254; Criminal Code (Tas) s 26; Criminal Code (WA) ss 231, 235. 315. Turner, fn 313 above, p 501; see also Lanham, ‘Killing the Fleeing Offender’ (1977) 1 Crim LJ 16. The rule applies even where the fugitive’s identity is known and the fugitive is not regarded as being dangerous: see generally Harding, Police Killings in Australia, 1970, pp 154–63. As to the extent of the right of police to pursue an absconding mental patient, see D’Souza v Director of Public Prosecutions [1992] 4 All ER 545 (HL). 316. [1962] VR 30 at 39 (FC). 317. Criminal Code (WA) s 233; Criminal Code (Tas) s 30(3) — in Tasmania this degree of force is limited to crimes listed in Appendix B and to arrests made by police officers. 318. Criminal Code (Qld) s 257(2); cf Criminal Code (Tas) s 32. 319. In assessing this, account must be taken of the pressure of events and the agony of the moment: McIntosh v Webster (1980) 43 FLR 112 at 113; Woodley v Boyd (CA(NSW), 2 March 2001, BC200100621, unreported) at [37]. 320. In the common law jurisdictions the doctrine of ‘excessive defence’ has been developed, in terms

of which, if the arrestee is killed, the crime will be reduced from murder to manslaughter: McKay v The Queen [1957] VR 560 at 563; applied by the High Court in Howe v The Queen (1958) 100 CLR 448 and subsequently in Viro v R (1978) 141 CLR 88; 18 ALR 257, notwithstanding the opposite view adopted by the Privy Council in Palmer v R [1971] AC 814; 1 All ER 1077. This doctrine is not available in the Code states: R v Johnston [1964] Qd R 1; Aleksovski v R [1979] WAR 1; R v Masnec [1962] Tas SR 254. 321. (1890) 11 LR(NSW) 171 at 182–3; see also R v Galvin (No 1) [1961] VR 733; Hull v Nuske (1974) 8 SASR 587; R v Reynhoudt (1962) 107 CLR 381. 322. ALRC,Criminal Investigation, Report No 2 (Interim), 1975, [51]–[54]. The commission’s recommendations substantially accord with those of the South Australian Criminal Law and Penal Methods Reform Committee Second Report, Criminal Investigation, 1974, pp 122–6. 323. [1947] AC 573 at 587ff; 1 All ER 567 at 571ff; Adams v Kennedy (2000) 49 NSWLR 78 at 85. 324. A similar requirement applies to arrests made pursuant to mental health legislation: NSW v Riley [2003] NSWCA 208. 325. Johnstone v New South Wales (2010) 202 A Crim R 422 at [56] per Beazley JA, with the concurrence of McColl and Young JJ A; Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 at [54]. 326. Criminal Code (Qld) s 255(2); Tas s 301; WA s 232; Crimes Act 1961 (NZ) s 316. 327. Per Turner J in Blundell v Attorney-General [1968] NZLR 341 at 353. 328. [1976] Qd R 85. 329. Ibid at 94–5. 330. Ibid at 89. 331. Ibid at 106. 332. R v Welch [2009] ACTSC 35 at [66]. 333. Christie v Leachinsky [1947] AC 573 at 587ff; 1 All ER 567 at 571ff. 334. Hull v Nuske (1974) 8 SASR 587 at 595 per Walters J. 335. John Lewis & Co Ltd v Tims [1952] AC 676 at 681; 1 All ER 1203 at 1205; Wheatley v Lodge [1971] 1 WLR 29 at 34. 336. For example, Wright v Court (1825) 4 B & C 596 at 598; 107 ER 1182 per Bayley J. 337. (1853) 6 Cox CC 329 at 331–2 per Williams J; also Fraser v Soy (1918) 44 DLR 437; R v Stafford (1976) 13 SASR 392 at 401 per Bray CJ. 338. (1991) 28 FCR 128 at 133–4; 100 ALR 439 at 445 per Lockhart J. The court also held (at 131; 442) that s 92 of the Migration Act 1958 (Cth) implies a power to handcuff the person arrested to prevent escape or in the interests of safety of property or other persons. 339. This duty is also imposed on private citizens when effecting an arrest without warrant, though it does not always mean that the police must be summoned immediately: John Lewis & Co Ltd v Tims [1952] AC 676; 1 All ER 1203 (HL), and see caveat of Lord Morton at 692; 1212. 340. Criminal Code (Qld) s 552; Summary Offences Act 1953 (SA) s 78(1); Crimes Act 1958 (Vic) s 464A; Bail Act 1982 (WA) s 6; Police Administration Act 1978 (NT) s 137(1); Crimes Act 1961 (NZ) s 316(5). 341. Bishop, fn 295 above, pp 137–8.

342. Williams v R (1986) 161 CLR 278 at 289; 66 ALR 385 at 393 per Mason and Brennan JJ. Harsh conditions will not, however, invalidate an otherwise lawful detention, although an officer who assaults a detainee may be tortiously liable: Behrooz v Secretary, DIMIA (2004) 208 ALR 271 at [21]. 343. Ibid at 285; 389 per Gibbs CJ. This common law principle is subject to statutory provisions which allow a person to be detained for up to four hours after arrest before being charged: Crimes Act 1914 (Cth) s 23C; Summary Offences Act 1953 (SA) s 78(2); Police Administration Act 1978 (NT) s 137(2). 344. Bales v Parmeter (1935) 35 SR (NSW) 182 at 188; Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146 at 147; R v Eyres (1977) 16 SASR 226 at 231. The practice is, however, sanctioned by Crimes Act 1958 (Vic) s 464A. The Crimes Act 1914 (Cth) Pt 1D provides for forensic procedures to be carried out with suspect’s informed consent. 345. R v Lamsatef [1977] 2 All ER 835; R v Jeffries (1946) 47 SR (NSW) 284 at 288. 346. [1968] NZLR 341 at 354. 347. R v Roberts [1954] 2 QB 329; [1953] 2 All ER 340. 348. R v Iorlano (M & G), Re Mullally; Ex parte Attorney-General (Cth) (1983) 151 CLR 678; 50 ALR 291. Followed in Shaw v Donaldson (1988) 78 ACTR 1. 349. Ex parte Evers; Re Leary (1945) 62 WN (NSW) 146 at 147 per Maxwell J. 350. R v Stafford (1976) 13 SASR 392 at 401 per Bray CJ, who added the caveat that the investigation would not be lawful if it were conducted in the absence of the plaintiff’s solicitor where the plaintiff had refused to answer except in the presence of a solicitor. 351. Wright v Court (1825) 4 B & C 596. 352. Bales v Parmeter (1935) 35 SR (NSW) 182 at 189 per Jordan CJ. 353. Per Gibbs CJ in Williams v R (1986) 161 CLR 278 at 284; 66 ALR 385 at 389. 354. Bales v Parmeter (1935) 35 SR (NSW) 182 at 189. 355. (1978) 19 SASR 448 at 454–5 per Wells J. 356. Clarke v Bailey (1933) 33 SR (NSW) 303 at 309 per Davidson J. 357. Bales v Parmeter (1935) 35 SR (NSW) 182 at 189. 358. [1965] 1 QB 348; [1964] 2 All ER 610 (CA). 359. But not private individuals whose powers in this regard are more circumscribed: see Hall v Booth (1834) 3 Nev & M KB 316. 360. Per Donaldson LJ in R v Holmes [1981] 2 All ER 612 at 616. See also Re Sherman and Apps (1980) 72 Cr App R 266 at 271; Re Houghton and Franciosy (1978) 68 Cr App R 197 at 205; cf Re Malcherek and Steel (1981) 73 Cr App R 173 at 186–8. 361. Survey conducted by Neasy J in R v Clark (Serial No 50/1984, unreported) cited in Williams v R (1986) 161 CLR 278 at 298; 66 ALR 385 at 399 per Mason and Brennan JJ. 362. For example, R v Banner [1970] VR 240 at 249 (FC); R v Clune [1982] VR 1 at 18 per McGarvie J (FC); R v Alexander [1989] 3 NZLR 395 (CA). 363. [1984] VR 559 at 568. 364. The phrase was at that time in the Crimes Act 1958 (Vic); it is no longer in that Act. Section 464A of the Crimes Act 1958 (Vic) now permits police officers to take ‘a reasonable time’ after

arrest to make further inquiries. To the same effect are Crimes Act 1914 (Cth) s 23C; Summary Offences Act 1953 (SA) s 78(2); Police Administration Act 1978 (NT) s 137(2). The Criminal Code (Qld) s 552 requires the person arrested to be taken ‘forthwith’ before a justice. 365. Per Mason and Brennan JJ in Williams v R (1986) 161 CLR 278 at 295; 66 ALR 385 at 397. 366. (1980) 25 SASR 170 at 203. 367. The meaning of ‘judicial process’ was discussed by Hardie Boys J in Simpson v AttorneyGeneral (Baigent’s case) [1994] 1 NZLR 667 at 696. The term was held to include a search warrant regardless of whether it has validly been issued: Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 at 728 per Hardie Boys J. 368. This is sometimes reflected in legislation: see, eg, Supreme Court Act 1933 (ACT) s 50, which sets out the powers and functions of the sheriff. 369. See, eg, Hunt v The Queen [2011] 2 NZLR 499 (CA) at [42] where the court accepted that ‘the use of search warrants to authorize surveillance justifies particular judicial scrutiny’ especially where privacy interests would be engaged. 370. Brown v Watson (1871) 23 LT 745. 371. Williams v Williams and Nathan [1937] 2 All ER 559 (CA). 372. Ives v Lucas (1823) 1 C & P 7. 373. Andrews v Marris (1841) 1 QB 3 at 17 per Denman CJ. 374. Hooper v Lane (1847) 10 QB 546 at 560–1 (obiter). 375. As to the characteristics of a valid search warrant, see R v Sanders [1994] 3 NZLR 451. 376. See the judgments in the last two cases cited and Demer v Cook (1903) 88 LT 629. 377. Andrews v Marris (1841) 1 QB 3. 378. (1937) 38 SR (NSW) 85 at 97 per Davidson J. 379. See London Corporation v Cox (1867) LR 2 HL 239 at 163 per Willes J (obiter); Watson v Bodell (1845) 14 M & W 57 at 70 per Parke B (ratio); Robertson v Western Australia (1997) 92 A Crim R 115 (WASC). 380. Carratt v Morley (1841) 1 QB 18. 381. Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434 at [67]. 382. Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & El 433; Codrington v Lloyd (1838) 8 Ad & El 449. 383. Brooks v Hodgkinson (1859) 4 H & N 712. 384. Williams v Smith (1863) 14 CB NS 596 at 624 per Willes J. 385. (1892) 4 QLJ 213. 386. (1878) 12 SALR 58. 387. Ibid at 59 (the action was for trespass on premises, seizure and sale). 388. And see Simpson v Attorney-General [1994] 3 NZLR 667 at 687–8 (wrong address). 389. Jelks v Haywood [1905] 2 KB 460; cf Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 (unlawful use of video obtained in execution of search warrant). 390. (1871) 2 VLR 195.

391. (1968) 117 CLR 36. 392. (1889) 10 LR (NSW) 106. 393. Watson v Bodell (1845) 14 M & W 57. 394. Wall v Meyrick (1879) 5 VLR 260. The sheriff may be liable to pay the damages sustained by the person at whose civil suit the prisoner was taken into custody if that prisoner escapes out of custody: see, eg, Supreme Court Act 1986 (Vic) s 120(2). 395. [1938] SASR 214. 396. The defence of statutory authority is often raised in the context of nuisance: see 14.46ff. 397. The High Court has dismissed as inappropriate to modern conditions where there are a ‘myriad of governmental, commercial and industrial instrumentalities covered by the shield of the Crown’ any rule that statutory provisions worded in general terms are to be construed as prima facie inapplicable to the Crown: Bropho v WA (1990) 171 CLR 1 at 19; 93 ALR 207 at 215 affirmed in Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512. 398. (1994) 179 CLR 427 at 436; 120 ALR 415 at 418. 399. As to the obligation to act reasonably in executing search warrants, see Slaveski v Victoria [2010] VSC 441 at [165]ff; R v Austin (No 2) [2010] ACTSC 136 at [71]ff. 400. Entick v Carrington (1765) 2 Wils KB 275; 95 ER 807. The court totally rejected general warrants which purported to empower the holder to go anywhere, at any time, in relation to any offence, and to search any place or person or to seize anything. In Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; 1 All ER 229 the Court of Appeal held that the warrant authorised the seizure not only of goods reasonably covered by the warrant but also of other goods reasonably believed to be stolen. Not followed in Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397; and see R v Applebee (1995) 79 A Crim R 554 (ACTSC). 401. See Fisher v Ellerton (FC(WA), 16 October 2001, BC200106302, unreported). 402. See ALRC, Criminal Investigation, Report No 2 (Interim), 1975, [188]ff. The commission’s recommendations with regard to the issue of search warrants are found at [197]. 403. Ibid at [192]. 404. Ombudsman Act 1976 (Cth) s 14. 405. Navigation Act 1912 (Cth) s 120. 406. Ibid s 126. 407. Ibid s 190AA. 408. Ibid s 210. See also ss 412–414, which provide wide powers of search, entry and detention under the Act. 409. A majority of the High Court in Behrooz v Secretary, DIMIA (2004) 219 CLR 486; 208 ALR 271 held that the harshness of conditions of detention did not invalidate detention under the Migration Act 1958 (Cth) although an action for damages might lie for trespass to the person. 410. Customs Act 1901 (Cth) ss 219V–219Z; similarly, detention powers must be exercised according to law. If they are not, it is no answer for those that have abused them to say that ‘they could, had they put their mind to it, have achieved the same result lawfully by other means’: Lumba v Home Secretary [2012] 1 AC 245 at [88] per Lord Dyson SCJ, at [175] per Lord Hope DP; R (Sino) v Home Secretary [2011] EWHC 2249 (Admin) at [70].

411. In Commissioner of Police v Hastwell [1987] 1 NZLR 468 the Court of Appeal held that failure to follow procedures under the Mental Health Act 1969 (NZ) rendered police liable for wrongful arrest and false imprisonment in apprehending and taking an unwilling H to a mental hospital; similarly, R (Kambadzi) v Home Secretary [2011] 1 WLR 1299; 4 All ER 975 (UKSC) (failure to carry out required reviews which were fundamental to the lawfulness of the continuing immigration detention). 412. See, eg, Rosebanner Pty Ltd v Energy Australia [2011] NSWCA 28 (electricity poles). 413. Telecommunications Act 1997 (Cth) Sch 3. 414. Ombudsman Act 1976 (Cth) s 33. 415. Telecommunications Act 1997 (Cth) Sch 3. 416. Navigation Act 1912 (Cth) s 211(1). 417. The onus of proving facts which bring a case within the protection of statutory defences, in respect of acts done under statutory authority or under a genuine belief therein, rests on the person claiming the benefit thereof: Webster v Lampard (1993) 177 CLR 598 at 606–7; 116 ALR 545 at 551 per Mason CJ, Deane and Dawson JJ. 418. Aickin J in Durack v Gassior (13 April 1981, unreported, cited in Moll v Butler (1985) 4 NSWLR 231 at 242–3) left no doubt that this principle is also fundamental to Australian law. 419. A person does not have the benefit of this defence merely because, in the course of his or her professional duty, he or she has to act fairly and impartially: Sutcliffe v Thakrah [1974] AC 727; 1 All ER 859 (HL) (defence not available to architect); Webber v Warren (1884) 1 WN (NSW) 5 (inquiry by captain of a merchant vessel not a judicial inquiry, hence defence not available); Arenson v Arenson [1977] AC 405; [1975] 3 All ER 901 (no reason of public policy to make defence available to valuers); failure to agree on a market rental does not constitute a dispute such as to render the surveyor, who acts as expert, in effect an arbiter carrying out judicial functions: Holland House Property Investments Ltd v Crabbe [2008] CSIH 40 at [19]. 420. See 25.1–25.2. It follows that judicial immunity is not available for administrative acts: Derrick v Attorney-General [1994] 1 NZLR 112 at 125 per Smellie J. 421. See, eg, Gibbons v Duffell (1932) 47 CLR 520 at 525–6 (obiter); Harvey v Derrick [1995] 1 NZLR 314 at 324 per Richardson J; Gaudron J in Herijanto v Refugee Review Tribunal (2000) 170 ALR 379 at 382–3 suggested that this was also the basis of judicial immunity from compulsory disclosure of any aspect of the decision-making process. 422. Anderson v Gorrie [1895] 1 QB 668 (CA); Nakhla v McCarthy [1978] 1 NZLR 291 at 294 per Woodhouse J. 423. Tampion v Anderson [1973] VR 321 at 332 per Mclnerney J; Rajski v Powell (1987) 11 NSWLR 522 at 528 per Kirby P. 424. R v Johnson (1805) 29 State Tr 414; 7 East 65; 103 ER 26. 425. Fray v Blackburn (1863) 3 B & S 576; Anderson v Gorrie [1895] 1 QB 668 at 671, 672 per Lord Esher MR and Smith LJ respectively (CA); Gerard v Hope [1965] Tas SR 15 at 55; Rajski v Powell (1987) 11 NSWLR 522 at 539 per Priestly JA. 426. Chippett v Thompson (1868) 7 SCR (NSW) 349 (coroner sued for false imprisonment); Wood v Fetherston (1901) 27 VLR 492 (justice of peace liable for trespass); R v Manchester City Magistrates’ Court; Ex parte Davies [1989] QB 631; 1 All ER 90 (CA) (magistrates liable for false imprisonment).

427. [1975] QB 118 at 135; [1974] 3 All ER 776 at 784. 428. As to the meaning of ‘jurisdiction’, see Woodhouse J in Nakhla v McCarthy [1978] 1 NZLR 291, esp at 300ff. Followed by Wood J in Moll v Butler (1985) 4 NSWLR 231 at 245. In Harvey v Derrick [1995] 1 NZLR 314 at 324 Richardson J accepted, on the basis of Irish and Scottish authority, that immunity of certain inferior court judges (District Court) might be supported ‘in the absence of glaring mistake, gross irregularity and more than culpa levissima’. And see at 320 per Cooke P. 429. (1985) 4 NSWLR 231 at 242. Similarly per Kirby P in Rajski v Powell (1987) 11 NSWLR 522 at 529. 430. There are no known cases where a judge of a superior court has been held personally liable for acting in this way. 431. (1987) 11 NSWLR 522. 432. For example, per Samuels JA in Zanatta v McCleary [1976] 1 NSWLR 230 at 237. Cf the apparent acceptance of this distinction in Derrick v Attorney-General [1994] 1 NZLR 112 at 117; Harvey v Derrick [1995] 1 NZLR 314 at 317 per Cooke P. 433. [1975] QB 118 at 137; [1974] 3 All ER 776 at 786. 434. Cf Holdsworth, A History of English Law,Vol VI, p 238, who suggests that the courts preserved the notion of exposure to the risk of personal liability for acting in excess of jurisdiction as a means of safeguarding the liberty of the subject, especially where justices of the peace were concerned. 435. [1985] AC 528; [1984] 3 All ER 908. Section 52(1) of the Justices of the Peace Act 1997 (UK) has now been amended to provide that actions against JPs for acts outside their jurisdiction will lie only where bad faith is proved. 436. Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) s 36; Justices Act 1959 (Tas) Pt XII; Justices Act 1902 (WA) Pt IX; Magistrates Court Act 1930 (ACT) Pt 2.3; Summary Proceedings Act 1957 (NZ) Pt 7. 437. See the legislation which grants to a judicial or quasi-judicial officer the same protection and immunity as a judge: Magistrates Court Act 1991 (SA) s 44; Magistrates Court Act 1989 (Vic) s 14; Justices of the Peace Act 1991 (NT) s 10. 438. That this is still one source of the modern parliamentary privilege is borne out by legislation which provides that the Bill of Rights is part of the law in Australia and New Zealand: see, eg, Parliamentary Privileges Act 1987 (Cth) s 16(1); Imperial Acts Application Act 1969 (NSW) s 6; Legislature Act 1908 (NZ) s 242. 439. On the basis of necessity: Gipps v McElhone (1881) 2 LR (NSW) 18 at 21–2, 24, 25–6 per Martin CJ, Manning and Windeyer JJ respectively; Chenard and Co v Arissol [1949] AC 127 at 133–4. 440. For example, Commonwealth Constitution ss 49 and 50; Constitution Act 1975 (Vic) s 19(1). Also Sankey v Whitlam (1978) 142 CLR 1 at 35; 21 ALR 505 at 523 per Gibbs ACJ. 441. Report on the Select Committee on Official Secrets Acts, HC 101 of 1939. 442. Bradlaugh v Gossett (1884) 12 QBD 271; R v Graham-Campbell; Ex parte Herbert [1935] 1 KB 594. 443. HC 34 (1967–8) 9: Supplementary Memorandum of the Clerk of the House of Commons to the 1967 Select Committee on Parliamentary Privilege.

444. See helpful explanation of this term in Philip Morris Ltd v Dept of Health and Ageing [2011] AATA 215 where the tribunal inclined to the view that a document, once submitted to the House, either by a Member or non-Member, becomes part of its proceedings; cf Stewart v Ronalds (2009) 76 NSWLR 99 (CA) at [121], [124] per Hodgson JA; the court left open whether reports, prepared by the Executive for its own purposes and subsequently tabled in parliament, were part of such proceedings [at 111] per Hodgson JA. 445. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed, 1989, pp 93–4. 446. R v Murphy (1986) 5 NSWLR 18 at 26–7 per Hunt J; Parliamentary Privileges Act 1987 (Cth) s 16(2) (a); Parliamentary Evidence Act 1901 (NSW) s 12; Civil Law (Wrongs) Act 2002 (ACT) s 137(2); Defamation Act 2005 (NSW) s 27(2); Defamation Act 2006 (NT) s 24(2); Defamation Act 2005 (Qld) s 27(2); Defamation Act 2005 (SA) s 25(2); Defamation Act 2005 (Tas) s 27(2); Defamation Act 2005 (Vic) s 27(2); Defamation Act 2005 (WA) s 27(2). 447. See discussion of the Strauss case in UK, Parl, Report from the Select Committee on Parliamentary Privilege HC Paper 34 (1967–8), [80]–[81], [86]. 448. Policy reasons have been advanced for according communications absolute immunity: Australian Parliament, Joint Select Committee on Parliamentary Privilege, Final Report, PP no 219, 1984, 5.15. 449. Beitzel v Crabb [1992] 2 VR 121; Buchanan v Jennings [2005] 1 AC 115; [2005] 2 NZLR 577 (PC). 450. Bradlaugh v Gossett (1884) 12 QBD 271 at 278, upheld in R v Chaytor [2011] 1 AC 684; 1 All ER 804 (fraudulent claims for expenses held not to form part of the core or essential activities of parliament). Cf Pickin v British Railways Board [1974] AC 765 at 790; 1 All ER 609 at 626. 451. The proceedings are succinctly described in ‘How Parliament Deals with Breaches of Privilege’ Aug 1994 Committee Bulletin 4. 452. (1998) 195 CLR 424; 158 ALR 527. 453. Ibid at [158]–[162] per Kirby J, at [194] per Callinan J. As to the proper role of the courts, see [27], [70], [124]ff. 454. Parliamentary Privileges Act 1987 (Cth) s 7. 455. Money v Leach (1765) 3 Burr 1692; 97 ER 1050. 456. Wade, ‘Acts of State in English Law’ (1934) 15 BYIL 98. More recently it has been described as ‘a common law principle of uncertain application which prevents the [forum] court from examining the legality of certain acts performed in the exercise of sovereign authority within a foreign country or, occasionally, outside it’: R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 at 106; [1998] 4 All ER 897 at 957 per Lord Nicholls. 457. Salaman v Secretary of State for India [1906] 1 KB 613 at 639 per Fletcher Moulton LJ. 458. The term ‘territorial jurisdiction’ includes the territorial sea so that the act of state doctrine would not be available as a defence when the tortious action complained of occurs in these waters. 459. Buron v Denman (1848) 2 Exch 167; Walker v Baird [1892] AC 491. 460. De Smith and Brazier, Constitutional and Administrative Law, 7th ed, 1994, pp 161–2. 461. [1970] AC 179; [1969] 1 All ER 629. 462. ‘[I]f the true basis of the rule … is that acts done by the Crown abroad in the conduct of foreign

relations are by their nature not recognisable in the English courts, [there is] no reason of principle why the position should be any different where the person injured happens to be a British citizen’: Al Jedda v Secretary of State for Defence [2009] EWHC 397 (QB) at [80] per Underhill J. 463. R v Bottrill; Ex parte Kuechenmeister [1947] KB 41 at 57 per Asquith LJ (CA); Netz v Chuter Ede [1946] Ch 224; 1 All ER 628. 464. Johnstone v Pedlar [1921] 2 AC 262 (HL). It may be, however, that the Crown must indicate that it has withdrawn its protection of the alien before the defence becomes available (per Lord Atkinson at 285). 465. (2010) 183 FCR 62; 265 ALR 50 (FC). 466. Ibid at [108] per Jagot J. See, too, Al Jedda v Secretary of State for Defence [2009] EWHC 397 (QB) at [85]–[87] per Underhill J. 467. Ibid at [10] per Black CJ. 468. See Quick and Garran, The Annotated Constitution of the Australian Commonwealth, 1995, pp 640–3. 469. Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269 at 290 per Dixon J. 470. See Lumb and Moens, The Constitution of the Commonwealth of Australia (Annotated), 6th ed, 2001, [353]–[354]. 471. In Minister of State for the Army v Dalziel (1944) 68 CLR 261, the Quartermaster-General for the Commonwealth, pursuant to regulations made under the National Security Act 1939, took possession of land tenanted by D. The Minister made an order for compensation under reg 60H, which directed that, in assessing compensation for loss or damage suffered, no account was to be taken of loss of occupation or profits. This regulation was struck down as not providing for compensation on just terms. 472. Fraser v Balfour (1918) 87 LJKB 1116 (HL); Heddon v Evans (1919) 35 TLR 642 at 645 where McCardie J said he was bound to hold that there was no liability for malicious acts, but having in mind the doubts raised in Fraser’s case, held that it was open to the House of Lords to reach a contrary conclusion. 473. Gibbons v Duffell (1932) 47 CLR 520 at 526. 474. [1975] QB 118; [1974] 3 All ER 776 (CA). 475. [1869] LR 4 QB 309. 476. (1962) 108 CLR 391 at 410ff. 477. Detinue is discussed in 4.54ff. 478. Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65; [1944] 2 All ER 579 (CA); Singh v Ali [1960] AC 167; 1 All ER 269 (PC); Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210; [1970] 3 All ER 664 (CA). As to whether the wrongful acts of a company’s agent will be attributable to the company for the purposes of the application of the maxim, see Safeway Stores Ltd v Twigger [2010] EWHC 11 (Comm); Moore Stephens v Stone Rolls Ltd (in liquidation) [2009] UKHL 39. 479. It follows that the maxim does not apply where there is no crime, nor any rational and voluntary act, nor moral culpability by reason of insanity: Hunter Area Health Service v Presland [2005] 63 NSWLR 22 at [380] per Santow JA. 480. Williams, Joint Torts and Contributory Negligence, 1951, p 333. See Gollan v Nugent (1987) 8

NSWLR 166 (the possibility that goods, if returned, would be used for the commission of a crime not a defence to the owner’s action for the return of the goods). 481. See, too, the doubts expressed in National Coal Board v England [1954] AC 403 at 419; but cf to the contrary in Vellino v Chief Constable of Greater Manchester Police [2002] 3 All ER 78 at [69]–[70]. 482. (1970) 119 CLR 397 at 414ff. 483. (1978) 138 CLR 438 at 452; 19 ALR 129 at 140. And see Norberg v Wynrib (1992) 92 DLR (4th) 449 at 468–9 (SCC) — a doctor who abused a position of power and influence by pursuing a sex-for-drugs arrangement with a self-admitted drug addict was not exonerated from liability. 484. (2011) 242 CLR 446; 275 ALR 611 at [13], [14] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 485. (1938) 60 CLR 438. See, eg, Miller above at [17]ff. 486. However, in an action for conversion, a market value assessment could not be undertaken of goods which, by law, cannot be sold. Damages might nonetheless be based on the cost of their replacement: Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188 at [102] and cases cited therein. 487. For example, at 460 Dixon and McTiernan JJ held that ‘in every case the question must be whether it is part of the purpose of the law against which the plaintiff has offended to disentitle a person doing the prohibited act from complaining of the other party’s neglect or default …’. As to what the task comprises, see McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 460–461, quoting Kitto J in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405. 488. Though, of course, breach of the by-law might be evidence of contributory negligence. 489. [1947] KB 641; 1 All ER 389 (CA); approved in National Coal Board v England [1954] AC 403 at 409; 1 All ER 546 at 552 per Lord Parker (HL). 490. [1965] AC 656; [1964] 2 All ER 999. 491. [1994] 3 NZLR 485 at 492. Public policy considerations were clearly regarded as a factor in Vellino v Chief Constable of Greater Manchester Police [2002] 3 All ER 78 at [69] (police did not owe an arrested person a duty to take care that he was not injured during a foreseeable escape attempt). 492. (1968) 69 SR (NSW) 269; cf Emanuele v Hedley [1998] FCA 709 (action failed because the plaintiff’s own act, not that of the defendant, was held to be the cause of his injury). 493. Ibid at 277. 494. (1970) 119 CLR 397 at 404 per Kitto J. 495. Ibid at 403. 496. Ibid at 427. 497. (1976) 135 CLR 651 at 668; 12 ALR 59 at 73; the party seeking to rely on the defence of illegality must specifically plead it: CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at 55 per Kirby ACJ. 498. In Jackson v Harrison (1978) 138 CLR 438 at 456; 19 ALR 129 at 142, Mason J gave as an example the inability to ascertain the standard of care owed by one criminal safeblower to another.

499. Jackson v Harrison (1978) 138 CLR 438 at 462; 19 ALR 129 at 148 per Murphy J. 500. Hegarty v Shine (1878) 14 Cox CC 145; see 6.7. 501. Siveyer v Allison [1935] 2 KB 403. 502. (1978) 138 CLR 438; 19 ALR 129. State courts have tended to rely on this (and similar) decisions for the proposition that, in cases of illegality arising from infringement of statutory provisions such as traffic laws, the duty of care will not be negated: eg, Wills v Bell (2002) 37 MVR 494 at [91] (Qld SC). 503. 138 CLR at 461; 19 ALR 146–7. 504. Ibid at 457; 144. 505. Ibid at 455; 142. 506. As happened in Bondarenko v Summers (1968) 69 SR (NSW) 269 (CA). 507. (1991) 172 CLR 243; 100 ALR 29. See Ginsbourg and Newton, ‘Gala v Preston:The Defence of Illegality to an Action in Negligence’ (1992) 18 Monash ULR 243–50; Bosmans and Lewis, ‘Proximity and Illegality in Negligence’ (1992) 18 Monash ULR 237–42. 508. (1991) 172 CLR 243 at 253; 100 ALR 29 at 36. 509. (1991) 172 CLR 243 at 271; 100 ALR 29 at 49. 510. Ibid at 272; 50. 511. Ibid at 277; 54. 512. Ibid at 292; 65. 513. (2011) 242 CLR 446; 275 ALR 611 at [15]. 514. Ibid at [16]. 515. [2009] 1 AC 1339; 4 All ER 81 at [66]–[69] per Lord Rodger. Viewed in this light, the maxim can be said to embody a fundamental principle of public policy: see Stone & Rolls Ltd (in Liq) v Moore Stephens (a firm) [2009] 1 AC 1391; 4 All ER 431 at [128] per Lord Walker, with the caveat, however, that the policy is not limited to this single justification but is based ‘on a group of reasons, which vary in different situations’: Gray v Thames Trains Ltd [2009] 1 AC 1339; 4 All ER 81 at [30] per Lord Hoffmann; also, Les Laboratoires Servier v Apotex Inc [2012] EWCA Civ 593 at [65]–[66] per Etherton LJ. 516. Miller v Miller, above, at [46]ff, [64]. 517. Ibid at [74], [56]. 518. Ibid at [88ff]. More controversial, however, is the majority’s opinion that, because the passenger asked twice to be let out of the car before it crashed, she had withdrawn from the illegal enterprise, pursuant to a different provision of the statute, at which point in time the duty was reinstated. See, in this respect, the pertinent criticism of Heydon J at [108]ff. 519. Civil Law (Wrongs) Act 2002 (ACT) s 94; Civil Liability Act 2002 (NSW) ss 54 and 54A (the exclusion does not apply if the defendant’s conduct also constitutes a serious offence); Personal Injury (Liabilities and Damages) Act 2003 (NT) s 10; Civil Liability Act 2003 (Qld) s 45; Civil Liability Act 1936 (SA) s 43, (criminality of plaintiff’s conduct must be established beyond reasonable doubt, and the section will not ‘affect the operation of a rule of law relating to joint illegal enterprises’); Civil Liability Act 2002 (Tas) s 6. For a highly critical review of this legislation, see Goudkamp,‘A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort’ (2007) 29 Syd L Rev 445.

PART III Negligent Invasions of Personal, Property and Financial Interests Chapter 7

Duty of Care

Chapter 8

Breach of Duty

Chapter 9

Causation and Remoteness of Damage

Chapter 10

Defences to Negligence

Chapter 11

Compensation in Personal Injury Actions

Chapter 12

Alternative Sources of Compensation for Personal Injuries

Chapter 13

The Negligent Infliction of Purely Economic Loss

[page 191]

CHAPTER 7 Duty of Care Introduction 7.1 Obviously, more persons suffer damage from careless acts of others than from intentional ones, and the provision made for them is of cardinal importance in the law of torts. The common law has long recognised that, in certain circumstances, persons guilty of careless conduct were liable in damages to their victims.1 The liability of those engaged in certain callings, such as ferrymen, surgeons, smiths, innkeepers and the like, goes back to the fourteenth century. Further, many actions of nuisance and trespass were based on negligent conduct.

Emergence of negligence as a separate tort 7.2 Gradually, a large variety of situations in which negligence was the common element was subsumed under the action on the case. But not until around 1825 onwards was there any emergence of negligence as a separate tort; there was merely a list of situations where the victims of careless conduct might recover damages. Once this happened, actions upon the case for negligence became common, no doubt spurred on at first by the increase in negligently inflicted injuries through the use of the new mechanical inventions such as the railways, and later by the abolition of the forms of action.2 The existence of negligence as a separate tort with a distinct set of principles is now undeniable, and it is easily the most important tort of all. It must be realised, however, that negligent acts do not come within the scope of the tort of negligence only. Regrettable though it be from the symmetrical standpoint, trespass and nuisance, for example, are often available even

though the act complained of is not intentional but merely negligent.

Conduct must be negligent and not merely careless 7.3 It is essential to grasp at the outset that it is not the law that a person suffering damage as a result of careless conduct can sue in tort;3 careless acts do not necessarily [page 192] constitute the tort of negligence. In order to protect the interests of others against the risks of certain harms, the law prescribes certain standards of conduct to which persons in particular circumstances ought to conform, and if, from failure to attain those standards, such harm ensues, this is actionable negligence.4 As Lord Wright has authoritatively put it:5 In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing.

These three elements of the tort — duty, breach of duty, and whether the ensuing damage was within the risk created — will be considered in turn. This discussion must be prefaced by the warning that there is no substantial measure of agreement among either judges or writers on the limits of these three categories. In many judgments, indeed, the three elements seem fused into one,6 and there is some justification for that method.7 Sometimes the decision whether to treat a particular matter under the heading of duty or breach seems quite arbitrary. There is much to be said for the view that whether we state any of the conclusions in this tort ‘in terms of remoteness, duty or negligence seems immaterial so long as we keep our eye on the fundamental problem of what we are doing and who in a given trial can do it’.8 What follows is to be regarded as an attempt to reconcile the need for logic and orderliness in legal presentation with the paramount obligation of stating the law in the terminology commonly employed by the courts, and at the same time to explain the several techniques applied by the courts to the solution of problems in negligence. In negligence alone of the torts (though perhaps to a much slighter extent in nuisance) do the constituent elements

lack reasonably clear definition.

The Duty Concept in General Duty as a complex concept 7.4 The concept of duty in negligence9 is a comparatively modern one,10 but is now so firmly rooted that there can be no doubt that actions in negligence must [page 193] fail where duty is not established.11 Despite being criticised as ‘an unnecessary fifth wheel on the coach’12 and a superfluous addition to the requirement of reasonable care, this concept, as ‘a prerequisite of liability in negligence, is embedded in our law by compulsive pronouncements of the highest authority’.13 By providing ‘symmetry, consistency and defined bounds’14 to the law of negligence, it acts as an important control mechanism15 against an unwarranted expansion of liability. There are many strands in this requirement of duty. In the particular circumstances the defendant must be proved to owe a duty at least to somebody to act or refrain from acting; there must be one of those general situations16 which the law recognises as being capable of giving rise to a duty — in many situations, as we shall see, it has been held that there can be no such duty. Even if the facts fall outside the ‘no duty’ category, the plaintiff must further show that the defendant, when acting in the manner complained of, owed a duty specifically to the plaintiff. A nurse who carelessly jolts ampoules containing fluid for an injection causing phenol solution to seep into it through hairline cracks, may be in breach of duty to the hospital but not to the patient who suffers paralysis from subsequently being injected with the contaminated solution.17 A negligent motorist who causes facial disfigurement to a pedestrian may be in breach of a duty to the pedestrian but not to every person who thereafter experiences shock on seeing the pedestrian’s disfigurement.18 Similarly, a parent may owe a duty to a stranger likely to be injured by a wandering child but the child would not necessarily have a cause

of action against its parents in that situation.19 One may have to particularise further and say that, in order to succeed, A must show not merely that B owes A a duty but a duty in respect of that interest of A which B has violated; for instance, B may be under a duty not to cause personal injury, yet under no duty in respect of purely economic loss. Or the risk which materialises may not be of the type envisaged by the law when it imposed on B a duty towards A: lending a child a loaded rifle carries the risk that the child may fire it at and injure A; instead the child drops the rifle on A’s foot — B has broken the duty of care and there is damage, but there is no liability: see further 9.7ff. Obviously, we have indeed a ‘complex concept of duty’ calling for much closer examination. [page 194]

Rationalisation of the duty concept 7.5 The law was initially developed in an empirical manner by decisions that in some particular circumstances there was a duty and that in others there was none. Brett MR in Heaven v Pender20 was the first to attempt to rationalise these cases. An improved and now much more frequently cited rationalisation is the famous dictum of Lord Atkin in Donoghue v Stevenson:21 The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

It is probable that Lord Atkin never intended this dictum to be an exact comprehensive statement of law.22 The importance of Donoghue v Stevenson is twofold. It firmly established a new category of duties, that of manufacturers of goods to eventual users, a category which has since developed far beyond the limits of the facts of that case. It now applies to retailers,23 repairers, assemblers and erectors and to a wide category of articles ‘including not only food and drink but of such diversified character as

lifts, underwear, motorcars and tombstones’.24 And, perhaps even more importantly, it finally set at rest any possible doubts whether the tort of negligence was capable of further expansion or was to be rigidly tied down by existing precedents. It was a clear instance of the courts taking account of the new conditions of mass production and complex marketing of goods wherein there are many intermediaries between manufacturer and consumer, and, by a conscious work of judicial legislation, imposing on manufacturers certain minimum standards of care in favour of the consumer. Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners Ltd explained the process in the following terms:25 What Lord Atkin did was to use his general conception to open up a category of cases giving rise to a special duty … [The process] may be described either as the widening of an old category or as the creation of a new and similar one. The general conception can be used to produce other categories in the same way. An existing category grows as instances of its application multiply until the time comes when the cell divides.

There are numerous and extensive categories of situation which are treated by the courts as imposing a duty of care. By way of illustration merely, makers or repairers of goods owe a duty to persons who use those chattels, teachers owe a duty to their pupils, occupiers of land to visitors there, those engaged in skilled occupations to their customers, those carrying out activities on a highway to other highway users. The rules of many of these are specialised and will be separately examined below. Besides broad categories such as these, there are many instances of more specific [page 195] duties — hence, before one falls back on some broad principle, one must ascertain whether on similar facts the courts have already recognised a duty; remember, whether a duty exists will be a matter of law, not fact.26 There are other cases where the law has denied the duty: one may carelessly allow a blind person to walk over a cliff without issuing any warning; landowners may excavate their land in a careless manner in circumstances where they can foresee that by abstracting percolating water from below they will cause a settlement of the plaintiff’s adjoining buildings — they are not liable because no duty of care is owed in respect of percolating water.27

Creation of new duties 7.6 What happens when the facts fall into neither group? It cannot be seriously maintained that the courts cannot hold a duty to exist unless they have previously expressly held that in such circumstances there is a duty. Lord MacMillan stated in Donoghue v Stevenson that the ‘categories of negligence are never closed’28 which means at least, as Asquith LJ said in Candler v Crane Christmas & Co,29 ‘that in accordance with changing social needs and standards new classes of persons legally bound or entitled to the exercise of care may from time to time emerge’. One of the clearest expositions of the law in this regard comes from Barwick CJ in Mutual Life & Citizens’Assurance Co Ltd v Evatt.30 As he said: [W]here no authority binds or current of acceptable decision compels, it is not enough, nor indeed apposite, to say that the function of the court … is to declare what the law is and not to decide what it ought to be … the common law is as much in gremio judicis as ever it was …

While firmly adhering to the view that ‘the basic concept of a duty of care arising by operation of law out of some relationship of one person to another remains constant’, nonetheless he maintained that the development of the common law was not complete in the sense that ‘the occasions for the imposition of a duty of care do not constitute a closed list’.31 Nor, he added, are the elements of the relationship out of which a duty will arise to be confined to fixed and labelled categories.32

7.7 New duty situations are continually being recognised. Thus, it has been held that an education authority owes a duty to the driver of a vehicle to exercise reasonable supervision of children in its nursery adjoining the highway so as to prevent them from endangering the driver’s safety on the highway, by, for example, running unattended out of the nursery through an unlocked gate on to the roadway [page 196] and causing the driver to swerve to avoid injuring them.33 An electricity authority which had high voltage wires near a climbable tree was liable to the personal representatives of a child who trespassed off a nearby footpath, climbed the tree and was killed.34 The transport authority, when siting road

signs by the side of a highway, owes a duty to a motorist who may inadvertently leave the road and collide with them.35 The Donoghue v Stevenson concept of duty has been extended to include air traffic controllers in charge of airports, this duty being owed both to pilots and to passengers flying within the controller’s air space.36 And in Scanlon v American Cigarette Co (Overseas) Pty Ltd37 the ‘clearly defined’ duty of care that the defendant company owed to take reasonable care to prevent the plaintiff from suffering physical injury by the consumption of its products was held also to be capable of applying to the act of advertising the product. The court accordingly refused to strike out a statement of claim by a 38-yearold Victorian woman alleging that the terminal lung cancer from which she was suffering had been caused by the company’s negligence in advertising and promoting its cigarettes, either on their own or in conjunction with any warnings given to consumers. This case may be contrasted with the High Court’s reluctance to impose on a non-manufacturer supplier of alcohol a duty to take reasonable care to protect a consumer against the risk of physical injury resulting from intoxication.38

7.8 The question remains how best to apply the principle of Donoghue v Stevenson. In Australia, its early popularity initially led the High Court to warn against treating the formula as if it were a statutory pronouncement39 which would always provide a complete and conclusive test of whether, in a given situation, a person would have a duty to act or refrain from acting in the interest of another.40 For a time, Lord Wilberforce’s two-prong test in Anns v Merton London Borough Council41 proved influential and tended to be applied by courts in a fairly literal fashion.42 Gradually, decisions of both the High Court and the House of Lords indicated a shift of judicial direction away from Anns. This has been more marked in the case of the High Court but in both courts the trend encouraged by Anns towards a largely unchecked expansion of the categories of duties has been reversed. Initially the House of Lords directed its criticism to the literal manner in which the two-stage test was applied. Lord Keith in Governors of the Peabody Donation Fund [page 197]

v Sir Lindsay Parkinson & Co Ltd, denying a remedy to a development company who had sued a local authority for the financial loss occasioned them by an inadequate drainage system which they alleged the authority had negligently approved, warned against the tendency to treat Lord Wilberforce’s words:43 … as being themselves of a definitive character. This is a temptation which should be resisted … in determining whether or not a duty of care of particular scope was incumbent upon a defendant it is material to take into consideration whether it is just and reasonable that it should be so.

By shifting the focus on to whether it would be ‘just and reasonable’ to establish a duty of care in a given situation the House of Lords effectively downgraded the pivotal role given to policy considerations in the Anns case, insisting instead on a broader inquiry in which policy issues, while not overlooked, would be placed in perspective. Other limitations on Lord Wilberforce’s test were quickly developed. It was held in Sutherland Shire Council v Heyman44 that the two-stage process developed in Anns would not be necessary ‘if the facts fall into a category which has already been recognised by the authorities as attracting a duty of care, the scope of which is settled’. This meant that the Anns test could not be used to expand or restrict existing duty situations. Nor, apparently, was the test to be applied to the existence of a duty of care ‘in a factual situation in which the existence of such a duty had been repeatedly held not to exist’.45 Once these two categories were excluded from the Anns ambit, little could be said to remain of the scope of operation of Lord Wilberforce’s dictum.

7.9 Thereafter, in a series of cases, various members of the High Court expounded upon their views on the subject generally of duty of care. The result for Australia was initially the replacement of the two-stage Anns approach by the test of proximity. This development was led by Deane J who in Jaensch v Coffey46 decried the tendency to see the test of reasonable foreseeability, upon which the first stage of the Anns test is ostensibly based, as a panacea and to refer to it ‘as if it were, from the viewpoint of principle, the sole determinant of a duty of care’. On its own, he said, reasonable foreseeability could constitute ‘no more than an incomplete determinant’ of this duty.47 The judge identified as the other vital element in the duty equation the notion of proximity, which he subsequently developed in Heyman’s case in the following terms:48

The requirement of proximity … involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and [that] of the defendant, circumstantial proximity such

[page 198] as an overriding relationship of employer and employee … and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained.

Exactly what these proximity factors are, and their relative importance, was held to vary from situation to situation. For example, physical nearness, in the sense of time and space, will usually suffice to create a relationship of proximity in the case of an activity which involves a foreseeable risk of physical injury to those nearby, but will not be relevant in cases involving damage by reason of a latent defect. And, in the case of solicitors and their clients, the critical factors leading to a relationship of proximity and consequent liability for economic loss are assumption of responsibility by the solicitor and reliance by the client.49 In Deane J’s view,50 ultimately endorsed by a majority of the High Court in cases such as Cook v Cook51 (and again in San Sebastian Pty Ltd v Minister Administering the Environmental Planning Act 1979,52 Hawkins v Clayton53 and Gala v Preston54), proximity was to be regarded as the touchstone or general conceptual determinant, the unifying theme and controlling factor of the situation in which the common law recognises the existence of a duty of care. In Burnie Port Authority v General Jones Pty Ltd55 the court went so far as to say that: … [w]ithout it, the tort of negligence would be reduced to a miscellany of disparate categories among which reasoning by the legal process of induction and deduction would rest upon questionable foundations since the validity of such reasoning essentially depends upon the assumption of underlying unity or consistency.

At its zenith the notion of proximity was regarded by the High Court as fundamental to the existence of a duty of care. As it held in Bryan v Maloney:56 A duty of care arises under the common law of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant damage.

7.10 From that point, however, reservations began to be expressed as to the

usefulness of proximity as a guiding principle. In Hill v Van Erp57 Deane J’s attempt to promote proximity as the unifying conceptual determinant of a duty of care was variously described as ‘ambitious’,58 ‘of limited use in the determination [page 199] of individual disputes’59 and as affording no real guidance ‘in determining the existence of a duty of care in difficult and novel cases’.60 Nonetheless, both here61 and in Romeo v Conservation Commission (NT),62 where the concept was stated to be ‘not without its difficulties’, it was acknowledged that proximity remained useful in indicating that something more than mere reasonable foreseeability of injury was necessary to establish a duty of care. Similarly, in Perre v Apand Pty Ltd,63 while proximity was described as no longer ‘the talisman for determining a duty of care’64 and ‘incapable of fulfilling, unaided, the function of demonstrating the existence or absence of a duty of care’,65 nevertheless the court declared that its use as a factor in determining duty had not been totally abandoned.66 Herein lies the difficulty for lower courts. One part of the High Court’s message is quite clear, namely, that proximity as the universal indicator of the duty of care is a ‘failed notion’.67 What is not clear is exactly how the notion of proximity is now to be employed. In Modbury Triangle Shopping Centre Pty Ltd v Anzil it was suggested68 that it might still be used, in its narrow sense, to delineate the relationship of ‘neighbour’ and in Sullivan v Moody the High Court indicated69 that, by expressing the nature of what is in issue, the notion gives focus to the inquiry. Perhaps the most that might be said is that proximity nowadays might be used in conjunction with a variety of other factors to identify the existence of a new duty of care. It has certainly not been abandoned by courts in the United Kingdom where, as indicated by recent cases, it still forms an important part (albeit not the sole factor) in the inquiry as to whether a duty of care exists in novel situations.70

7.11 The Anns approach was never followed by Brennan CJ, who preferred instead the view that the law should ‘develop incrementally and by analogy with established categories’ any new categories of negligence.71 Just as Lord Atkin in Donoghue v Stevenson72 had used his general conception of

relations giving rise to a duty of care to expand existing categories or to open up new categories of negligence, so this conception should be used to develop further categories by analogy.73 And, as these new categories grow, they will be found ‘to contain one or more different elements from other categories grown from the common stock’.74 In this way, new categories [page 200] of duty of care will not be created overnight by some ‘massive extension of a prima facie duty of care restrained only by indefinable considerations of policy’,75 but will take place in an orderly and incremental fashion. In a case where a novel category of duty is proposed ‘the question for the court is whether there is some factor in addition to reasonable foreseeability of loss which is essential to the existence of the duty’.76 If this factor cannot be identified with some degree of precision the proposal must fail.77 The incremental approach of Brennan J has found favour with the House of Lords, first in Caparo Industries plc v Dickman,78 Murphy v Brentwood District Council79 and subsequently in White v Jones80 and Customs and Excise Commissioners v Barclays Bank plc81 as well as with the Scottish Court of Session.82 This change of direction from Anns is attributable to the concern that the two-stage test as propounded in Anns had facilitated the unchecked expansion of the law of negligence, turning it, as one commentator graphically noted,83 into an ‘all devouring negligence monster consuming all other torts, contractual and statutory duties, and equitable principles’. The concepts of ‘proximity’ and ‘fairness’, while still employed,84 have been described as amounting to ‘little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope’.85 The incremental approach, by comparison, was seen as providing the courts with a more stringent framework within which new duties of care might sensibly be developed. And in Australia, as the proximity doctrine has fallen into disfavour, the incremental approach has been regarded by some members of the High Court, at least for the time being, and in the absence of any other unifying principles, as one way forward.86 In Crimmins v Stevedoring

Industry Finance Committee McHugh J87 stated that the use of the incremental approach amounts to an acknowledgment that no general test exists to determine the duty of care but that this was not to deny the importance of principle and policy in the development of [page 201] the law.88 In Brodie v Singleton Shire Council Callinan J described the endorsement by the court of the incremental approach in somewhat less than flattering terms as a retreat to a ‘safe haven’.89

7.12 While the relevance of the concept of duty of care continues to be recognised, the High Court has acknowledged its failure to provide a clear or concise formula or methodology to ascertain the existence of this duty.90 Reasonable foresight, while essential to the issue, in the sense that a negative answer to the question whether the injury or harm suffered was a reasonably foreseeable result of the defendant’s act or omission will result in a finding of no duty, is not of itself sufficient, as a positive answer invariably sets in motion additional inquiries.91 Other tests have also been posited but have since been rejected or regarded, on their own, as being inadequate. Kirby J until very recently92 sought to resolve the duty issue by reference to the three-stage test first enunciated in Caparo Industries plc v Dickman.93 This involved asking whether the damage to the plaintiff was reasonably foreseeable, whether the relationship between the plaintiff and defendant was sufficiently proximate and, if so, whether it was fair, just and reasonable to impose a duty of care. Although this approach continues to attract a fair measure of support in the United Kingdom94 as well as some recognition in Canada,95 it was not embraced by other members of the High Court96 and was ultimately relinquished by the judge, albeit reluctantly, in Graham Barclay Oysters [page 202] Pty Ltd v Ryan.97 The High Court in Sullivan v Moody,98 in a rare joint

judgment, criticised the test, in particular, because of the perceived danger that the third aspect of the test might encourage courts, when confronted by novel situations, to rely too heavily on ill-defined and discretionary considerations of policy rather than attempt to seek legal principles or norms.99 This identification of the concepts of fairness, justice and reasonableness with policy considerations was also made by Kirby J in Perre v Apand Pty Ltd.100 But while he viewed them as considerations which, depending on the facts, needed to be evaluated before any final decision was made as to the presence or absence of a duty of care, other judges101 regarded these concepts as being of little use in applying the law to particular factual situations, largely because they cannot be objectively applied and would inevitably lead to similar fact situations being decided differently in different courts. This distrust of policy considerations is not recent. Even prior to Anns the High Court had tended to regard the role of policy as a constituent element in the duty formula with a great deal of caution, at least where new duty situations fell to be considered. In Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’, Stephen J warned against applying ‘generalised policy considerations directly … to the case in hand’.102 He suggested that, at least in economic loss cases, there was a need to search for some more positive guidance as to the entitlement to recover damages than is provided ‘by judicial policy making based upon a case-by-case consideration of whatever factors the court may deem relevant’. Notwithstanding these criticisms, however, policy factors, whether described expressly as policy or incorporated into the rubric of ‘fair, just and reasonable’, remain relevant to the inquiry whether a duty of care exists in novel situations, even if they are not of themselves conclusive.103 This much has been acknowledged even by its critics.104

7.13 It may well prove to be the case that ‘to search for any single formula which will serve as a general test of liability is to pursue a will-o’-the wisp’.105 Yet the need for clarity of principle and predictability of outcome remain important goals if the law of negligence is to continue to be an effective instrument of social justice.106 At the present point in time these goals remain elusive. In the United Kingdom the pursuit for an allencompassing formula has not been quite as intense as in Australia. In recent decisions both the House of Lords and the Court of Appeal have continued to

apply a variety of approaches including the three-fold test of [page 203] foreseeability, proximity and fair, just and reasonable,107 and to a lesser extent the assumption of responsibility108 test and an incremental approach,109 leading to the comment that ‘the search for a principle or test has followed three separate but parallel paths’110 which are not necessarily mutually exclusive. It has also been suggested that each test might be used to check the provisional conclusion reached by application of the other approaches.111 In the absence of any generally agreed formula several members of the High Court appear to have gone back to the broad neighbourhood test espoused by Lord Atkin in Donoghue v Stevenson. This has been expressed in different ways but the intent is unmistakable. Gaudron J in Graham Barclay Oysters Pty Ltd v Ryan112 deemed it sufficient to say that no duty of care can arise in the absence of a relationship of neighbourhood, defining such a relationship by reference to Lord Atkin’s statement in that case. Kirby J, while referring to the neighbourhood test, has declined to pursue any definition of the term ‘neighbour’, preferring instead to ask whether in all the circumstances it is reasonable to impose a duty of care on the defendant.113 Similar approaches, each with different nuances, are evident in judgments of Gleeson CJ114 as well as those of McHugh and Gummow JJ.115 What is apparent is that in each case, the emphasis has been placed on whether it is reasonable to impose a duty of care in any given situation, and in assessing this, the court has looked to the totality of the relationship between the parties.116 While this may be a pragmatic way of analysing each particular set of facts, it should be acknowledged that the vagueness of the criterion of ‘reasonableness’ inevitably invites a multifactorial approach and this, in turn, may well lead to the courts revisiting notions such as ‘control’, ‘policy’, ‘fairness’ and the like. Such a multifactorial approach was adopted in Caltex Refineries (Qld) Pty Ltd v Stavar, where Allsop P conveniently enumerated a non-exhaustive list of ‘salient features’ designed to assist in the evaluative task of imputation of a duty of care and the identification of its scope and content.117

7.14 The Anns test continues to exert an influence in New Zealand where

the Court of Appeal in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigators Ltd resisted counsel’s invitation to follow the lead of the House of Lords and adopt an avowedly incremental approach.118 Noting that the objective [page 204] remains the need to ascertain whether, in the light of all the circumstances of the case, it is ‘just and reasonable that a particular duty of care to the particular plaintiff should rest on the particular defendant’,119 and heedful of the dangers that might result from a too-literal application of the Anns test, the court reiterated its support for the view of Cooke P in Brown’s case that ‘without necessarily subscribing to everything said by Lord Wilberforce … we have found it helpful to think in a broad way on the lines of his twofold approach’.120 Recent cases have tended to confirm that, in deciding whether to impose a duty of care in novel situations, the inquiry must focus on whether it is fair, just and reasonable to do so, and that an integral part of this inquiry necessarily relates to questions of proximity and policy.121 The Court of Appeal’s approach, however, may not be too far removed from that of Brennan J or the House of Lords. On its own admission, its approach is cautious,122 requiring that, in deciding whether or not a duty of care exists in novel situations, it has to proceed ‘step by step and by analogy with previous cases’.123 The Supreme Court in Couch v Attorney-General, in endorsing this approach,124 has noted that the process is likely to be ‘intensely factspecific’.125

A duty must be owed directly to the plaintiff 7.15 ‘English law does not recognise a duty in the air, so to speak; that is, a duty to undertake that no one shall suffer from one’s carelessness.’126 As Lord Esher said in Le Lievre v Gould,127 ‘a man is entitled to be as negligent as he pleases towards the whole world, if he owes no duty to them’. Consequently it is incumbent on the plaintiff to establish that he or she personally was owed the duty.128 But suppose that

[page 205] the plaintiff is in breach of a duty of care to Z, but that Y also has suffered damage as the result of the same careless act. In the early days of the development of this tort of negligence, there was much support for the view that Y could also recover. In one leading case the view was canvassed by the Court of Exchequer Chamber that where the defendant railway company could have foreseen that sparks from their engine would set fire to an adjoining field, they were liable to the owner of a cottage 200 yards away across a road when the fire, fanned by a strong wind, destroyed the cottage, although they could not have foreseen harm to the plaintiff’s cottage.129 This approach was challenged in the leading American case, Palsgraf v Long Island Railroad Co.130 In that case, an employee of the defendant railway company, in helping a passenger onto a train, negligently dislodged a parcel which the passenger was carrying. Unknown to the employee, it contained fireworks. These exploded and the shock upset some scales at the other end of the platform. The scales struck the plaintiff, who was standing on the platform. The majority of the court held that the action failed because, although the conduct was careless, no duty was owed to the plaintiff to protect her against this hazard. The minority dissented on the ground that the plaintiff’s injuries were the proximate result of the negligent act of the defendant. This view of the majority, contained in the judgment of Cardozo CJ, a judge of international reputation, that there was no liability to a plaintiff towards whom harm could not be anticipated, was to have great influence on judicial thought throughout the common law world. The decisive moment came in 1943, in the House of Lords decision in Bourhill v Young,131 where the plaintiff, a pregnant fishmonger, although injured by the act of the defendant, failed to establish a duty of care in the relevant sense. While alighting from a tramcar, she heard the sounds of (but did not see) a nearby motor accident in which a motorcyclist was killed. She was then some distance from the area of potential physical danger. She later saw blood on the roadway but not the body of the motorcyclist, which had already been removed. She suffered nervous shock and a month later gave birth to a stillborn child. It was admitted that the motorcyclist was negligent so far as the other motorist was concerned but denied that he owed any duty to her. This contention was upheld by the House of Lords on the basis that he could

not reasonably have foreseen the likelihood that the plaintiff, placed as she was, could be affected by the negligent act. Mere violation of a duty of care to a third party did not establish a similar violation to the plaintiff. As was to be expected, this principle has been consistently followed in subsequent cases.132 In Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)), the Privy Council expressly approved the rule.133 And in Sydney City Council v Dell’Oro134 the High Court applied the rule to exclude liability in a case where a person reasonably believed to be a fully licensed and competent electrician was electrocuted by contact with an uncovered links box [page 206] containing uninsulated copper links carrying high voltage electricity. Barwick CJ held135 that if foreseeability was necessary to establish the existence of a specific duty on the part of the council employee who had left the links box exposed, ‘it was not foreseeable that a qualified tradesman would place himself [quite unnecessarily] in fatal proximity to the conductors’.136

Particular Examples of the Duty Concept Unborn plaintiffs 7.16 It is now recognised137 that a duty of care may exist not to cause injury to a plaintiff en ventre sa mere. Watt v Rama138 is generally accepted as authority for the proposition that a third party may be liable in damages to a child born with disabilities resulting from injuries sustained before birth as a consequence of that party’s negligence. Noting the position that the duty is not simply to take reasonable care in the abstract, but to take reasonable care not to injure someone whom it should reasonably have been foreseen might be injured by the act or neglect if such care was not taken, the majority of the court in Watt’s case held139 that it is immaterial whether at the time of the negligent act the victim was in existence or not, so long as the victim was a member of a class reasonably likely to be adversely affected by that act. It

has always been the case that, while damnum and injuria are both essential components of the tort of negligence, these need not manifest themselves contemporaneously (although, of course, they often do). Once it is accepted that the act of the manufacturer in Donoghue v Stevenson140 only became a breach of duty when the consumer at some later moment in time suffered injury on drinking the product, there will be no difficulty in acknowledging that there is no need for the consumer even to be in existence at the time of the negligent act. Indeed, if there were such a need, most manufacturers of products made especially for infants could never be held liable. The same principle applies in respect of injury to a foetus.141 The principle has been extended in Australia to allow a child, once born, to sue its mother for injury in utero caused by her negligent driving.142 In reaching this decision the court in Bowditch v McEwan143 took into account the fact144 that, in such a situation, the pregnant woman has no rights of autonomy or privacy which would be disregarded if a duty of care was imposed — in this instance her unborn [page 207] child should be treated equivalently with her other children already born who might be passengers in the vehicle. Where, at the time of the negligent act, the plaintiff is a member of a class of persons likely to be adversely affected by the act although the plaintiff at that time has not yet been born, the relationship and the duty arising therefrom are said to be contingent or potential ‘but capable of ripening into a relationship imposing a duty when the plaintiff becomes defined’,145 that is to say, at the moment of birth. The right to sue for an injury caused prenatally therefore vests at birth but not before;146 consequently, if an accident caused the mother to miscarry, she alone would be entitled to sue for the injury, but no right of action would be available to the foetus.147

Omissions 7.17 It remains a truism that the common law imposes no prima facie general duty to rescue or protect another from or to warn another of

reasonably foreseeable loss or injury not created by oneself.148 The distinction between a failure to act and positive action is today as fundamental a tenet as it was 70 years ago when Bohlen149 commented upon the deep-rooted distinction in the law between nonfeasance and misfeasance. All this is not to say that there can never be liability for an omission to act; merely that the grounds of such liability are different from the grounds of liability for action. In the former, liability is exceptional and arises only where there is a duty to act.150 In the latter instance, liability is presumed unless it can be excused or justified.151 Accordingly, while it may well prove difficult to distinguish in a given situation between acts of nonfeasance and acts of misfeasance, this task is a necessary one.152

Mere omissions 7.18 Where the failure to act is the only conduct causally linked with the plaintiff’s harm, the failure to act is said to be a ‘mere’ omission and no liability will ensue. So, if X, a passerby, witnesses a road accident but does not take the trouble to summon [page 208] medical assistance on his mobile phone, then, although X can foresee that the victim might die if aid is not forthcoming, X is not liable for this omission.153 Because there is no liability for a ‘mere’ omission to act, reasonable foreseeability, which is such a vital element in the test for negligent conduct generally, does not appear as important where the question is one of liability for omissions. An omission to act where it is foreseeable that failure to act may harm the plaintiff is not necessarily actionable conduct. The position is explained by Deane J in Sutherland Shire Council v Heyman thus:154 Reasonable foreseeability of a likelihood that such loss or injury will be sustained in the absence of any positive action to avoid it does not of itself suffice to establish such proximity of relationship as will give rise to a prima facie duty on one party to take reasonable care to secure avoidance of a reasonably foreseeable but independently created risk of injury to the other. The categories of case in which such proximity of relationship will be found to exist are properly to be seen as special or ‘exceptional’.

To regard reasonable foreseeability as the exhaustive criterion of the duty to act to prevent injury occurring would have the unacceptable effect not only of equating the legal duty with the moral obligation but would also, according to Brennan J, again in Heyman’s case,155 mean that the ‘neighbour’ of the law would include ‘not only the biblical Samaritan but also the Priest and Levite who passed by the injured man’.

Duty to act 7.19 In other circumstances omissions may give rise to liability but here there must be a duty to act,156 as opposed to a duty to take reasonable care when acting.157 For such a duty to operate, in addition to the foreseeability of injury or damage, the relationship between the tortfeasor and the victim must contain some feature which makes it reasonable for the law to impose liability for a failure to act.158 The ownership, occupation or use of land may be such a feature.159 So may an earlier act of the defendant. If, for example, a person creates a danger,160 the fact that an omission is the immediate cause of harm will not prevent liability from arising. Alternatively, a duty to act may stem from the undertaking of a task ‘which leads another to rely on its being performed, or the ownership, occupation or use of land [page 209] or chattels’.161 In Hawkins v Clayton Brennan J held162 that a solicitor’s duty to disclose the existence of a will to the executor arises not only from the foreseeable consequences of non-disclosure but also from the solicitor’s custody of the will after the death of the testator, the nature of the will and the purposes for which custody is accepted.

Special relationships 7.20 Some relationships have traditionally been held by the courts to contain special features that give rise to a positive duty to take reasonable care to prevent or reduce the risk of harm. These include contractual relationships,163 non-contractual relationships where there is a foreseeable

risk of harm ensuing if the work voluntarily undertaken is done carelessly,164 fiduciary relationships,165 employment relationships,166 and relationships between occupiers of adjoining land.167 In other cases there may be an existing relationship of dependency which imposes a positive duty to act, and so liability for an omission.

Existing relationships Teachers and school authorities 7.21 It is now well established that teachers168 and school authorities169 owe to pupils in their charge a duty170 to take reasonable care to protect them from [page 210] a reasonably foreseeable risk of injury,171 although not to insure against harm.172 That duty is not necessarily confined to events on school premises173 nor during school hours.174 This is because the duty stems from the relationship between the parties,175 so the question to be asked is whether, given the particular facts of the case, that relationship subsists. Assuming it does, the nature and extent of the duty is a different question, again factdependent. It may include liability for omissions; indeed, many of the cases allege a failure to exercise proper supervision as required by the particular circumstances.176 The rationale underlying the imposition of the duty was succinctly stated by Winneke CJ in Richards v State of Victoria in the following terms:177 [It is] the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury.

The issue in New South Wales v Lepore,178 reflecting new social concerns,179 was whether school authorities are liable for deliberate sexual assaults of pupils by teachers, in circumstances where the authorities are not negligent in

appointing or supervising the teachers. However, apart from rejecting the proposition that school authorities have a duty to ensure the safety of pupils, the High Court failed to provide a unified approach to this problem. Two possible bases of liability were discussed — vicarious liability and nondelegable duties of care — but no consensus emerged on which was to apply. Equally problematic from the point of view of extracting a ratio were the differences of opinion as to the application of these [page 211] concepts. Whereas some recent decisions in the United Kingdom180 and Canada181 enable the school authority, as employer, to be held vicariously liable to an abused child, provided a sufficiently ‘close connection’ between the employer’s enterprise and the employee’s conduct can be shown, several High Court judges expressed a preference for a more traditional analysis which effectively precluded a finding of negligence on this ground. Similarly, while there was general agreement that a non-delegable duty of care182 is a duty to ensure that reasonable care is taken183 and not an absolute obligation to prevent harm from ensuing (see further 26.25ff), there was a difference of opinion as to whether it would extend to holding a school authority liable for the deliberate misconduct of a teacher: see further 26.54.

Doctor – patient 7.22 The doctor–patient relationship is also recognised as giving rise to a duty of care on the part of the doctor. The duty is broadly based, ‘covering all the ways in which a doctor is called upon to exercise his skill and judgment’.184 It includes a duty to take positive action and, indeed, many cases revolve around the failure of a doctor to warn of risks185 or to advise on the effectiveness of a medical procedure.186 The basis of liability in these cases, though not fully explored by the courts, appears to stem from the fact that the doctor (or solicitor187 or other adviser),188 as the repository of specialised information or knowledge, is, effectively, the only source upon which the individual can draw and on whom the individual must therefore rely. The High Court in Breen v Williams189 described the relationship as one

where ‘the doctor acquires an ascendancy over the patient and the patient is in a position of reposing trust in the doctor’ but the relationship is not of a fiduciary nature. Since the duty arises out of the relationship, it follows that it is owed only to the patient,190 although discharging the duty in the case of a young child191 or possibly a disabled person may involve giving advice or instructions to parents or carers. Furthermore, there may be situations where, although there is close contact between a doctor and a person, this may not give rise to the doctor–patient relationship, as, for example, where [page 212] a doctor examines a person for the purposes of discharging the Local Authority’s care responsibilities, or on behalf of an insurance company.192

Parent–child 7.23

One might expect the parent–child relationship, clearly one of dependency, to give rise to a duty on the part of the parent to take reasonable care for the safety of the child such that any failure to supervise resulting in harm to the child will render the parent liable. This does not, however, appear to be the position in Australia, where the view generally accepted is that expressed by Barwick CJ in Hahn v Conley,193 that the moral obligation of the parent, created by the blood relationship, does not, of itself, automatically translate into a legal obligation. The sentiment behind this view is that it is somehow ‘wrong’ for a child to sue its parents for an act or omission arising directly out of parental obligations. In New Zealand the Court of Appeal in McCallion v Dodd194 has ruled, more boldly, that there is no logic in holding parents liable where their own child, lacking proper supervision, injures another child195 and, at the same time, denying liability where the child injures itself.196 The court held that a parent, whenever physically present, is never able to shed responsibility for the safety of the child, although on the facts of a particular case the parent might not be negligent. It cannot be contended that a parent can never be in breach of a duty towards a child. But in general, where such a duty has been held to arise, it is

irrespective of the blood relationship and based on the particular facts of the situation.197 For instance, where a parent drives negligently, causing an accident and occasioning injury to the child who is a passenger in the vehicle, there can be little doubt of the child’s ability to recover damages in respect of the accident.198 The basis of such liability cannot be attributed solely to the availability of third party insurance. A better argument is that liability is based on negligent driving and, as such, the fact that the driver’s own child is the passenger is purely coincidental. Where, however, the breach of duty to the child consists of a failure to supervise the child’s activities or any other manifestation of what may be called ‘bad parenting’, the court’s reluctance to allow recovery appears to be based largely on policy considerations. These include the fact that parental responsibility will often be raised in the context of a defendant joining the parent as a third party in an action for damages brought by the child where the effect of a successful plea of parental negligence might well result for all practical purposes to a reduction in the award made to the child.199 Public policy provides another possible justification — an action in negligence is [page 213] not the proper avenue of redress in the unhappy event that parents or those acting in loco parentis200 fail to take due care for the well-being of their offspring,201 except perhaps where the acts or omissions in question cross the line into behaviour such as sexual or physical abuse. The New Zealand Court of Appeal in A v Roman Catholic Archdiocese of Wellington202 has suggested that, where agencies such as orphanages act in loco parentis, given the particular vulnerability of children and the agency’s assumption of responsibility, a duty of care to take reasonable steps to protect the children from such abuse would be consistent with child care legislation, although the duty does not extend to ‘maximising’ their ‘emotional well-being’.

Jailer–prisoner 7.24 Another relationship of dependency which is recognised as giving rise to positive duties of care is that of jailer/prison authority and prisoner. This

duty is based on the fact that, during the period of detention in custody, the jail has effectively deprived the prisoner of all personal liberty and has assumed control of his or her person.203 However, the degree of dependence in this situation is not to be equated with that prevailing in the case of a school teacher or nursery governess with regard to the children entrusted to their care. The charges of the jail are adults, not children. It has accordingly been held that the duty owed to a prisoner is correspondingly less than that of the school teacher or nursery governess.204 A wardress, therefore, will not be liable for failing to warn an elderly female prisoner working in the prison laundry of the dangers of her job,205 although she might be liable if she instructed the prisoner to do a particular task which she could reasonably be expected to foresee would be likely to cause the prisoner physical harm.206 Prison authorities have also been held responsible for failing to take reasonable care to prevent prisoners being assaulted by other prisoners207 particularly where the prisoner is a known likely target208 and for omitting to keep remand or unsentenced prisoners apart from convicted or sentenceserving prisoners, thus exposing them to sexual and physical assault.209 They have likewise been held liable for failing to conduct thorough searches of prisoners prior to locking them in their cells, thereby in one case allowing a situation to develop where a prisoner set his cell alight with cigarettes and matches left in his possession.210 It is now beyond doubt that police officers owe a duty to take reasonable care to prevent prisoners, or at least those with known suicidal tendencies,211 from killing themselves. This duty arises not only [page 214] from the complete control which prison authorities have over prisoners, but also due to the special danger of people in prison taking their own lives.212 By comparison, to hold that police officers have a duty to prevent a stranger not in their care from committing suicide would ‘mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy’.213 Moreover, while recognising that the duty extends to taking reasonable steps to identify prisoners at risk, the English Court of Appeal in Orange v Chief Constable of West Yorkshire Police214 declined to impose on the police or prison authorities a general obligation to treat every

prisoner as if he or she was a known suicide risk.

Rescuers 7.25 The notion of rescue involves two separate questions. These are whether: (1) there is any obligation to rescue or attempt to rescue; and (2) any duty of care is owed to a rescuer or would-be rescuer. As to the first question, the legal position today remains as it always has been.215 That is to say, absent any special circumstances that might give rise to a positive obligation to rescue, such as occurred in Horsley v Maclaren (The Ogopogo),216 the common law does not require the Priest and the Levite to behave like the Good Samaritan, for it ‘casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him’.217 However, if the danger is, in the first instance, generated by a person who then fails to go to the rescue, leading in turn to the injury or death of the victim, that person might well be liable.218 Moreover, Laskin J in The Ogopogo219 held that certain relationships, such as employer and employee, carrier and passenger, or, as was the situation here, boat owner and guest passenger, can give rise to the duty to rescue and in these circumstances it does not matter whether the danger has been caused by the person owing the duty or not. No such special relationship giving rise to a duty of care obliges the police or other rescue services to respond to emergency calls220 although circumstances may exceptionally arise when police assume a responsibility giving rise to a duty of care.221 [page 215] The duty to rescue, once in existence, extends only to the need to take reasonable care; the rescuer cannot be held liable merely because the rescue bid fails. If, however, the rescuer’s own negligent acts cause injury or damage which would not otherwise have occurred or if they exacerbate injury or damage, there may be liability.222 A person who acts according to the dictates of conscience and who attempts a rescue will be protected since the law in such a situation will recognise the existence of a duty of care.223 No longer will an action brought

by the rescuer be defeated on the basis of volenti non fit injuria.224 These days the rule is that a defendant who owes a duty to another will also owe a duty to those who might foreseeably attempt to rescue that other from the acute peril in which the defendant’s negligence had placed that other.225 The policy of the court is now to encourage rescue.226 As Cardozo J stated so dramatically in Wagner v International Railway Co:227 The cry of danger is the summons to relief. The law does not ignore these reactions of the mind … It recognises them as normal … [and] places their effects within the range of the natural and probable.

In line with this policy rescuers have been held entitled to recover not only for physical injury but also for nervous shock228 occasioned by the circumstances of the rescue attempt. However, one action which failed was brought by the widow of a man who had died of a heart attack brought on by strenuous efforts to remove valuables and furniture from the house of his host which had caught alight as the result of the negligent use of a blow lamp by a painter. The Scottish court held229 that his death was not a foreseeable consequence of the negligent act. One may speculate whether the decision would have been any different if the ill-fated rescuer had instead perished in the flames. A duty may nonetheless be owed not only to a person injured in an attempt to rescue another from the effects of an act of negligence, but also to a person who has attempted to save property. The difference between these two situations is seen, not as one of kind, but of degree. While in both cases it is necessary to balance the degree of personal risk against the value which the law attaches to the stake at peril, obviously a higher degree of risk may be embarked upon by the rescuer of life or limb than a salvor of property.230

7.26 In Videan v British Transport Commission231 a stationmaster was killed in an attempt to rescue a child who had strayed onto the track in the path of an oncoming trolley being driven by the defendant’s servant. The child was a trespasser and, as [page 216] the law stood at that time,232 was owed no duty of care. The court of first

instance held that, as the rescuer could be in no better position than the rescued, the action of the stationmaster was also doomed to failure. On appeal this decision was reversed, the court effectively holding that the duty of care to the rescuer is not derivative and so is not dependent upon a breach of duty to the person imperilled. Nor, up to now, has the status of the rescuer been regarded as important, although in Haynes v G Harwood & Sons233 the court was influenced by the fact that the rescuer was a police officer in the sense that it made such intervention all the more foreseeable. Similarly the fact, in Chapman v Hearse,234 that the deceased had been a doctor made his attendance at the scene of the accident more likely (although the outcome may have been the same had the deceased been engaged in some other occupation). It is also noteworthy that the High Court did not categorise Dr Cherry as a rescuer but elected instead to treat the matter as an ordinary one of reasonable foreseeability of the class of person who might be at risk in that particular situation. The identity or status of a rescuer is thus helpful in answering the question whether it was reasonable to predict the rescue attempt in the first instance, but that apart, it has no special significance.235 The so-called ‘firefighter’s rule’, as applied in some jurisdictions in the United States,236 has been expressly rejected by the House of Lords in Ogwo v Taylor as having no place in English law.237 In terms of that rule professional rescuers retained at public expense to deal with such emergencies cannot be heard to complain of negligence in the creation of the very circumstances which give rise to the performance of their everyday duties.238 Ogwo’s case in fact concerned a professional firefighter who had been injured, through no personal fault, in the course of fighting a fire started by the appellant’s negligence. The court rejected the argument of counsel that a distinction should be drawn between the ‘ordinary’ risks inherent in firefighting, for which the appellant should not be liable, and the ‘exceptional’ risks created by some unusual feature of the fire which the appellant could have foreseen and avoided by warning or otherwise and for which the appellant should therefore be liable. Allowing only that a firefighter could not recover where the injuries were sustained by foolhardy exposure to an unnecessary risk,239 Lord Bridge said:240 I can see no basis of principle which would justify denying a remedy in damages against the

tortfeasor responsible for starting a fire to a professional fireman doing no more and no less than his proper duty and acting with skill and efficiency in fighting an

[page 217] ordinary fire who is injured by one of the risks to which the particular circumstances of the fire give rise.241

Accordingly, he considered that it ‘would be utterly repugnant to our contemporary notions of justice’ to allow professional firefighters to be met by the plea of volenti when exposed to unavoidable risks of injury, whether of an ‘ordinary’ or ‘exceptional’ nature. There was, he said, ‘no reason whatever why they should be held at a disadvantage as compared to the layman entitled to invoke the principle of the so-called “rescue” cases’.242

7.27 All good Samaritans will not, alas, be rescuers. In Sylvester v GB Chapman Ltd,243 a groom, working at an agricultural hall with circus horses, not belonging to the defendants, was passing the cage of a leopard put on show by the defendants, when he saw a lighted cigarette smouldering in some straw between the cage and the barrier. He crossed the barrier to put it out and was mauled when the leopard put his paw through the bars. Lord Wright MR dismissed the action and refused to regard the groom’s action as one of rescue. The plaintiff, he said, ‘was not rescuing anyone from imminent danger or death, nor even preventing damage to property, since there were people who could easily have done, with precautions, what he did. He was essentially a volunteer’. It is clear from this case that a potentially helpful act in a situation where there is some element of danger will not, without more, amount to a rescue. However, once the potential for rescue exists, while trivial or peripheral acts may be disregarded,244 no distinction can be drawn between an impulsive act and a deliberate act, provided the act was reasonable and proper in all the circumstances.245 The ultimate question is, perhaps, whether persons who place themselves in a dangerous position may be sued by their rescuers. It has been held246 that where a person imperilled himself or herself through carelessness and could foresee that another might be endangered by attempting a rescue, that person was answerable in negligence for any harm suffered by the rescuer. Those injured while rescuing someone who has not negligently and foreseeably

invited rescue will remain uncompensated, unless they independently acquire personal liability insurance cover.

Duty to control the acts of third parties 7.28 Leaving aside for a moment the question of vicarious liability, which is the subject of Chapter 26,247 one may say that, as a general rule, the common law [page 218] imposes no obligation on a person to control the actions of another.248 Foreseeability of injury to another is not of itself sufficient to create a duty249 even where the circumstances are such that a person would incur no personal risk in assuming control, the underlying rationale being the distinction the common law makes between positive acts and omissions.250 The act of the third party is regarded as a new and independent cause.251 But, like all general rules, exceptions do exist. The situation of parents will serve to illustrate both the rule and the exception. Parents, as a class, contrary to popular belief, will not generally be held liable for the wrongful acts of their children, despite the close relationship of sanguinity that binds them. Nevertheless, parents who do have the immediate physical care and control of a child will be responsible for negligence in the exercise of that control if injury results.252 Any responsibility so incurred will be personal, not derivative, but for the purposes of liability it makes no difference that the injury resulted from the parents’ failure to exercise control rather than from any positive act on their part. Parental control, where it exists, must be exercised with due care in order to prevent the child inflicting intentional damage or carrying on in a fashion likely to cause foreseeable risk of injury to others.253 The degree of control required will vary taking into account such factors as the age of the child, its level of perception, the nature of the activity and its location. In Smith v Leurs,254 for example, the High Court unanimously dismissed a tort action against a parent whose 13-year-old child had injured another child while

engaged in play with a shanghai. Starke J held255 that the question whether parents have exercised the care that reasonable and prudent parents would have exercised in the control of a child is one of fact having regard to all the circumstances of the case. In the present case the relevant circumstances included the fact that the son had been warned about and was old enough to comprehend the dangers of using a shanghai, as well as the fact that he had disobeyed his father’s instruction not to use the shanghai away from home. The shanghai, moreover, in common with toy guns and peashooters, was a plaything which general use had not shown to be particularly dangerous. To have held the defendant liable in the light of these facts would be to impose on parents an unrealistically high standard of control. [page 219]

7.29 Teachers and school authorities may similarly be held liable for negligent supervision and control of school children entrusted temporarily to their care. Carmarthenshire County Council v Lewis256 is an example of actionable breach of duty to users of the highway: the council was held liable for failing to take reasonable care to prevent a four-year-old girl attending a nursery school under its management from straying on to a busy highway and causing the death of a truck driver, who, swerving in an endeavour to avoid the child, hit a pole and died from injuries received. School children tend more often to injure themselves or other school children so supervision should primarily be directed at avoiding such accidents.257 A teacher will not be in breach of this duty merely because a child inflicts injury on itself or on another child.258 Moreover, actions of this type often fail through an inability to prove that ‘the exercise of an appropriate degree of supervision would have prevented the particular injury in question, notwithstanding that no supervision at all was attempted in the particular case’.259 As with parental control, what constitutes adequate control depends upon all the circumstances.260 Age, of course, is an important factor, but the duty is not necessarily limited to very young children.261

7.30 The House of Lords in Hill v Chief Constable of West Yorkshire262

noted the presence of strong policy grounds for not holding the police responsible in tort to members of the public generally263 for failure to control criminal behaviour.264 [page 220] They also refused to concede the existence of a general duty on the part of the police to potential future victims of a criminal attack. Accordingly, they refused to hold the police liable for failure to apprehend a dangerous rapist whose being at large resulted in the violent death of the plaintiff’s daughter. The mere fact that it was reasonably foreseeable that the victim, as a young woman, might be at risk was not, of itself, sufficient to establish the requisite proximity of relationship between plaintiff and defendant. It is useful to compare this decision with that in Dorset Yacht Co Ltd v Home Office265 where the authorities were held liable for damage caused to the plaintiff’s yacht by some Borstal boys in the course of an escape while under the supervision of prison officers on Brownsea Island. Even in that case Lord Diplock made the point266 that: [T]he risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself.

Neither police nor prison authorities enjoy a blanket immunity267 and liability might ensue if there was some relationship between them and the victim ‘which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts … which he shares with all members of the public’.268 In the case of the Borstal boys, these special characteristics were held to exist as regards yacht owners in the immediate vicinity of the island whose property was highly likely to be appropriated as part of the escape. The main points of difference with Hill’s case are that, in Hill, the criminal had never been in the custody and hence had never been under the control of the police,269 nor could the victim be singled out from the vast number of the female general public who might be at risk.270 Similar issues have been identified by South Australian courts which have held that parole boards are under no general duty to supervise prisoners

released on parole. In Swan v South Australia271 it was held that, once the board was apprised of information revealing that a convicted paedophile, in breach of parole, was spending nights in the company of young children, thereby exposing them to risk of harm, a relationship of proximity was created between the board and the children such that the board came under a duty to take reasonable steps to prevent the harm [page 221] materialising. Whereas in X v South Australia (No 2)272 other factors, including the board’s limited ability to control a person on licence or to protect any particular group from that person, as well as its responsibility for the rehabilitation of prisoners, militated against the duty of care arising. As Dorset Yacht shows, prison officers, by virtue of the custody which they exercise over prisoners, have a duty to control at least those prisoners with known dangerous tendencies. This duty requires a prison officer to take reasonable steps273 to ensure that one prisoner does not assault other prisoners274 or another prison officer275 within the confines of the prison. It also means that a prison officer who negligently allows a dangerous inmate to escape276 may be liable for any ensuing injury or damage caused by the escapee. The class of person277 to whom the duty is owed tends to be narrowly confined by the courts.278 This is due, no doubt, to an understandable reluctance to cast the net of liability too wide in a situation which is, after all, an exception to the general rule and one in which policy considerations often point in the other direction. As indicated in Modbury Triangle Shopping Centre Pty Ltd v Anzil,279 in some circumstances it is the relationship between two parties that gives rise to a duty on the part of one of them to take reasonable care to prevent harm ensuing to the other from the deliberate criminal acts of a third party. Examples of such relationships include those between employer and employee,280 school authorities and pupils, bailor and bailee, jailer and prisoner and hoteliers and patrons.281 The High Court, however, declined to extend the categories of relationship to include occupier–entrant,282 holding that the relationship of itself is not so special as to give rise to this exceptional duty.283 The House of Lords has similarly held that the landlord’s

[page 222] covenant for quiet enjoyment does not protect his tenant against criminal acts of third parties, whether or not they also are his tenants.284 Moreover, whereas the occupier’s undoubted duty in relation to the physical state of the premises stems from its control over, and knowledge of, the premises, these elements would generally be lacking where the potentially criminal behaviour of third parties is in issue.285 However, where, as in Adeels Palace case,286 the occupier is the restaurateur of licensed premises where liquor is sold,287 in assessing whether a duty is owed to patrons to take reasonable care to protect them from violent or disorderly conduct of other persons, the statutory background, in this case the Liquor Act, which imposes a similar duty, is a relevant factor. In those cases where the occupier is also the employer and where liability has been held to exist, this has been on the basis that the occupier/employer has failed in the duty to provide a safe system of work and to ensure that reasonable care has been taken.288

Statutory powers 7.31 For over a century289 the common law has recognised that a public authority may be subject, in appropriate circumstances, to a duty of care in the exercise of its statutory powers. Whenever this duty exists, the statutory powers so conferred must be exercised with reasonable care ‘so that if those who exercise them could by reasonable precaution have prevented an injury which was occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered’.290 It is always open to the legislature totally to exclude liability for otherwise negligent acts, but if it does not, the statute will confer immunity from civil suit only to the extent that any harmful consequences of the acts authorised by the legislation cannot be avoided by the use of reasonable skill and care.291 A defence of this rule has been offered by Mason J in Sutherland Shire Council v Heyman292 in the following terms: When a statute sets up a public authority, the statute prescribes its functions so as to arm it with appropriate powers for the attainment of certain objects in the public interest. The authority is thereby given a capacity which it would otherwise lack, rather than a legal immunity in relation to what it does … In framing such a statute … it is preferable to express [the intended] activities as functions or powers so that the authority is free to make policy-making decisions and

discretionary judgments with a view to attaining the statutory objects … There is, accordingly, no reason why

[page 223] a public authority should not be subject to a common law duty of care … in relation to performing, or failing to perform, its functions …

Nonetheless, as Mason J also noted,293 special problems exist in applying the law of negligence to statutory authorities. These stem in large measure from the fact that public authorities are entrusted by statute ‘with functions to be performed in the public interest or for public purposes’. In general, only limited resources and limited credit will be available for the execution of these functions and often the resources will be insufficient to cover completely all statutory responsibilities, in which event policy choices as to their application will have to be made.294 Accordingly, courts in England and Australia, and the legislatures in the latter country, have recognised the need for some accommodation to be made in adjusting the application of the principles and concepts of negligence to the conduct of public authorities.295 This is not to say, however, that the courts are united in their approach to the subject.296 The most significant Australian decision of recent years is undoubtedly Sutherland Shire Council v Heyman,297 in which a majority298 of the High Court expressed views which differed from the leading English case, Anns v Merton London Borough Council.299 It was no doubt because of the differences in view, and the consequent uncertainty in the law, that the Australian legislatures, with the exception of South Australia and the Northern Territory, enacted, as part of the so-called ‘tort law reform’ measures,300 a provision in broadly common form, which sets out principles which are to be applied in ‘determining whether a public or other authority has a duty of care or has breached a duty of care’. The principles are: (a)

the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions;

(b)

the general allocation of those resources by the authority is not open to challenge;

(c)

the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate); and

(d)

the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.301 [page 224]

It is assumed that the courts, in interpreting these principles, will have due regard to the pre-existing common law, and hence the latter is the focus of the discussion which follows.

The planning/operational dichotomy 7.32 The origins of the planning/operational dichotomy may be traced to the decision of the United States Supreme Court in Dalehite v United States,302 a test case arising out of an explosion on board a ship berthed at a wharf in Texas City. The explosion was caused by the presence of the highly unstable compound, ammonium nitrate, in bags of fertiliser manufactured under the aegis of the United States Government as part of its post-war reconstruction program in Germany, Japan and Korea. The court held that the Federal Tort Claims Act 1946 s 2680(a), which exempted claims based upon ‘the exercise or performance or failure to exercise or perform a discretionary function … on the part of a federal agency’ was concerned to protect ‘planning level’ decisions which are decisions where ‘there is room for policy judgment and decision’. The original Cabinet decision to implement a fertiliser export program was seen as falling into this category, as did all other actions and decisions stemming from it. Hence all were immune from civil suit.303 Planning decisions,304 that is, those based upon the exercise of policy options or discretions, and involving or dictated by social, political, financial or economic considerations,305 are generally regarded as non-reviewable and are to be distinguished from ‘operational’ decisions, that is, conduct whereby

policy is put into operation and which is reviewable by the courts in a suit for negligence. At the basis of this distinction is the courts’ belief that certain matters are more properly within the province of the public authority to determine and that the courts lack the necessary expertise to make informed judgments in these matters. As Lord Romer explained in East Suffolk Rivers Catchment Board v Kent,306 quoting from du Parcq LJ in the Court of Appeal:307 [W]hen Parliament has left it to a public authority to decide which of its powers it shall exercise, and when and to what extent it shall exercise them, there would be some inconvenience in submitting to the subsequent decision of a jury, or judge of fact, the question whether the authority had acted reasonably, a question involving the consideration of matters of policy and sometimes the striking of a just balance between the rival claims of efficiency and thrift.

Operational decisions, on the other hand, do not present the same difficulties for the court, being ‘action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards [page 225] of reasonableness’;308 hence matters well within the competence and expertise of the courts.309 It will often be difficult in practice to draw the dividing line between planning and operational acts and decisions.310 The difference between the two categories is, however, clearly brought out in L v Commonwealth,311 the first Australian case expressly to adopt the designations ‘planning’ and ‘operational’.312 The plaintiff, a prisoner on remand in Fannie Bay jail in Darwin, sued the Commonwealth for injuries resulting from the sexual assaults on him by two convicted prisoners. Although the assaults were attributed to the overcrowded conditions in the prison and to the government’s failure to build a prison large enough to allow for segregation of remand prisoners and accommodation in individual cells, the plaintiff did not succeed on this ground because of the planning/operational distinction.313 These failings fell into the ‘planning’ category. The court nevertheless proceeded to find the Commonwealth liable for negligence at the ‘operational’ level. This negligence included the failure to keep remand

prisoners separate from convicted prisoners; placing the plaintiff in a cell with prisoners known to have violent tendencies; omitting to make regular and effective inspection patrols; and failure of a prison guard to report to a superior officer a complaint made by the plaintiff of an earlier assault by a cellmate.

English courts and the planning/operational dichotomy 7.33 As some text-writers have pointed out,314 most of the English cases prior to Anns tended to accept without challenge the near irrelevance of the public character of a public authority’s functions; of far greater concern to the courts was the question whether the action complained of was one of misfeasance or non-feasance, liability attaching only to the former situation. The decision of the House of Lords in Dorset Yacht Co Ltd v Home Office315 is a notable exception. While not referring in express terms to the planning/operational dichotomy, it nevertheless squarely confronted these issues.316 The question before the court was whether to hold the Home Office, as the authority in charge of prisons, responsible for the damage caused to the plaintiff’s yacht by Borstal boys attempting to escape their island quarters. Security [page 226] arrangements had been relaxed due to a deliberate policy decision on the part of the authorities. Lord Reid noted the ‘difficult and delicate’ task facing governors of such institutions:317 This system is based on the belief that it assists the rehabilitation of trainees to give them as much freedom and responsibility as possible. So the responsible authorities must weigh on the one hand the public interest of protecting neighbours and their property from the depredations of escaping trainees and on the other hand the public interest of promoting rehabilitation.

Lord Diplock took a similar view, holding that, as there is ‘no criterion by which a court can assess where the balance lies between the weight to be given to one interest and that to be given to another’,318 a public authority could not, as a general rule, be sued in negligence in the exercise of a discretion of this nature.

Lord Reid noted the unavailability of the immunity if the discretion is exercised ‘so carelessly or unreasonably that there has been no real exercise of the discretion’.319 In this event, the officer in question will have acted in absence or in excess of power. Lord Diplock employed the public law concept of ultra vires to similar effect, holding moreover that, if the decision is ultra vires (or if the act of a subordinate failed to conform with it and was itself ultra vires), the question of liability has to be determined as if the defendant authority possessed no special public characteristics.320 Subsequently, in Anns v Merton London Borough Council321 Lord Wilberforce held that where a public body is discharging functions under statute its powers and duties are prima facie definable under public rather than private law. Public law demands that when a discretionary power is entrusted to a body by legislation, that power must be exercised properly with adequate consideration of relevant matters, and must never be cavalierly disregarded or exercised on caprice alone. If it is, this conduct will be ultra vires and may create a duty of care to an individual suffering loss or injury. In this event, it matters not whether the ultra vires conduct consists of a failure to exercise the relevant power at all, or an improper exercise of that power. The court noted that the distinction between planning or policy decisions and operational decisions was often one of degree, but that it was nevertheless important to draw the dividing line in any given situation because the court would much more readily find that a duty of care was superimposed where there had been an operational decision.322 Nor, in the view of their Lordships, was it impossible to classify a power as operational merely because it contained some elements of discretion. Broad policy decisions such as the scale of resources to be made available for the discharge of the authority’s public health functions were not immune from suit, but convincing evidence would be called for to establish that the decision was ultra vires and unlawful.323 Once the authority had decided on the degree of testing (a planning decision), carelessness by the inspector in carrying out one of those tests, for example, merely giving the site a cursory glance and going off for a drink [page 227]

in disregard of instructions, would be operational negligence.324 In both cases a condition precedent of liability was an ultra vires finding but proving ultra vires in the second instance would be much less burdensome. Application of the ultra vires test since Anns has been far from consistent and its applicability to claims other than negligence has been disputed. Many judges at first instance have ignored the prior requirement that the act be ultra vires, assuming merely that proof of operational negligence is sufficient.325 In Stovin v Wise326 Lord Hoffmann noted that the distinction between policy and operational decisions was at best an ‘inadequate tool’ with which to discover whether to impose a duty of care. Accordingly, he preferred an approach which emphasised the difference between discretionary powers and duties, limiting the existence of a duty of care in the former case to circumstances in which it would be ‘irrational’ not to exercise the power (in effect a public law duty to act) or to situations where ‘exceptional grounds’ exist for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because it is not exercised. Nevertheless, the policy/operational dichotomy continues to provide guidance in determining whether a duty of care does or does not exist. In Phelps’ case, for example, it was recognised that where a statutory authority must choose between various courses of action, all within its statutory powers, and the choice involves weighing priorities and resources, ‘it will in general be inappropriate that someone injured through the particular decision … should have a remedy in damages’.327 This is not to say, however, that statutory authorities necessarily enjoy a blanket immunity. In considering whether a common law duty is owed to the plaintiff, as well as the ambit of that duty, much depends on the scheme and policy328 of the statute.329 Additionally, the loss or injury must be of a type which one of the purposes of the statutory powers vested in the authority was to prevent or avoid. This element was [page 228] satisfied in Anns but not in a series of later cases, typically the Peabody Donation Fund330 case where the loss suffered by the developers in similar circumstances was financial rather than physical. So, too, should it be

recalled that common law duties are owed to individuals who must establish a personal right to sue for damages if injured by a contravention of a statutory duty. As noted by the High Court in Graham Barclay Oysters Pty Ltd v Ryan,331 it is not sufficient to prove that the discretionary power was vested in the public body for the specific purpose of protecting the community. For this mandamus will lie.

Australian courts, the planning/operational dichotomy and the ultra vires doctrine 7.34 The limitations imposed by Lord Wilberforce in Anns on the right to sue a statutory authority with regard to the negligent exercise of its powers were initially accepted in Australia in a number of decisions.332 They met, however, with a mixed reception in Sutherland Shire Council v Heyman.333 In the opinion of Gibbs CJ334 (with whom Wilson J agreed), the distinction between the areas of policy and of operations was ‘logical and convenient’. Deane J saw the immunity of public authorities in the exercise of ‘policymaking powers’ (that is, planning decisions) as an expression of ‘presumed legislative intent’. As he remarked, no such legislative intent could, however, be presumed in a case (such as Heyman’s) where the relevant powers and functions are of ‘a routine administrative or “operational” nature’.335 Mason J’s acceptance of the distinction between planning and operational decisions is apparent from his judgment336 but the views of the then Chief Justice and those of Mason J clearly diverge when it comes to their respective considerations of what may be termed the ‘discretionary function immunity’ and the application of the ultra vires principle to acts of statutory authorities. In Anns Lord Wilberforce had held: 1. that ultra vires was a precondition to any tortious liability on the part of a statutory authority; and 2. in respect of planning matters, a duty of care might arise by virtue of the ‘proper consideration’ qualification. So, where the authority is empowered, for example, to inspect building foundations, a power which would usually fall under the planning category, it is nonetheless obliged to give proper consideration to the question whether or not to exercise the power. A failure to give proper

[page 229] consideration to the matter could form the basis of a private law action for negligence.337 Gibbs CJ essentially agreed with both of these propositions. As to the first, he added the gloss that operational acts which involved the exercise of a discretion would be immune from suit if carried out in good faith in the exercise of, and within the limits of, the discretion.338 On the facts in Heyman, he found that there was no evidence that the building inspector, in inspecting only the frame of the house, had acted otherwise than in the bona fide exercise of a discretion. As to the second proposition, the Chief Justice held that a public authority would be liable for damage caused by ‘… a negligent failure to consider whether to exercise a power conferred on [it] with the intention that it should be exercised if and when the public interest requires it’.339 Mason J, by comparison, emphatically rejected both of these propositions. He could find ‘no compelling reason’ for confining the duty of care owed by public authorities to situations where they or their officers were acting in excess of power. As he explained:340 It is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power … While some early statements of the principle suggest that the power given by statute is conditioned upon it being exercised without negligence so that negligent exercise amounts to an excess of authority,341 the better view has always been that the cause of action in negligence arises under the principle by virtue of a breach of a duty of care existing at common law.342

He also rejected the notion that public authorities are under a common law duty of care to give proper consideration to whether they should exercise a power conferred on them by statute, noting in this regard that although they might be under a public duty, enforceable by mandamus, to give proper consideration to the question whether they should exercise a power, this public obligation could not be equated with or regarded as a foundation for imposing a duty of care enforceable at common law.343 The policy/operational dichotomy remains a relevant factor344 in the consideration of whether a statutory power in any particular situation gives rise to a duty of care although, as noted in Romeo v Conservation Commission (NT), the courts have not

[page 230] always agreed that the distinction offers a touchstone of liability345 or that budgetary, political and other constraints within which public authorities operate necessarily precludes the existence of a common law duty of care.346 Reliance was clearly placed on the distinction in Crimmins v Stevedoring Industry Finance Committee347 but whereas this process was express in the judgment of McHugh J,348 Gummow and Hayne JJ preferred to label the functions of the statutory authority in this instance as ‘quasi-legislative’349 and therefore not giving rise to common law duties.350 In Brodie v Singleton Shire Council,351 Hayne J demonstrated a similar reluctance to analyse the situation in policy/operational terms, regarding these as inadequate but this time preferring to look at the ‘political’ nature of the decisions taken by the highway authority. Unfortunately, the disparate nature of the recent High Court decisions leaves the law in this area somewhat unclear.

Omissions 7.35 There are now a number of High Court decisions on the question of liability of statutory authorities for nonfeasance as opposed to misfeasance. Prior to Anns the position was that no action lay for nonfeasance. Sheppard v Glossop Corporation352 fits into this pattern. The plaintiff pedestrian injured himself by falling over a retaining wall. The road had streetlights but these had been turned off at 9pm as the result of a local council resolution to economise on lighting. The council had a discretion whether or not to provide street lighting. The matter was treated as one of nonfeasance and the council was exonerated from liability: ‘if there is no duty to light there is no negligence in abstaining from lighting’.353 The House of Lords in East Suffolk Rivers Catchment Board v Kent developed this line of reasoning by stating the rule354 that where a public authority has a power but no duty to act, it will only be liable, where it does decide to act, for any additional harm brought about by its intervention. Subsequently, in Anns, as noted above, the court adopted the view that a public authority may be liable for not acting if it fails to give proper consideration to whether it should act, while more recently in Stovin it limited the duty to situations where it would be irrational not to exercise the power.

The High Court in Sutherland Shire Council v Heyman355 agreed on certain issues, namely, that in any discussion about the negligent liability of public authorities, the distinction between nonfeasance and misfeasance remains of fundamental [page 231] importance356 — and that foreseeability of harm, by itself, is not enough to establish a duty of care for nonfeasance. Some broader foundation than mere foreseeability must appear before a common law duty to act arises. Brennan J described the situation thus:357 There is a distinction between a case where the repository of a statutory power does something which creates or increases the risk of foreseeable damage and that damage occurs and a case where a person is able to foresee that damage might occur but does nothing to cause it. In the first case,358 if he takes no reasonable steps to prevent the occurrence of the damage, he is negligent; in the latter,359 he is not.

In the absence, therefore, of a duty imposed by parliament to exercise a statutory power in such a way as to prevent injury to a member of the public, a duty to take some positive action will not arise unless the authority itself has created or increased the risk of injury of that kind by some antecedent act.360 In this event the authority by its conduct places itself in such a position that it attracts a duty of care which calls for the exercise of the power. In creating (or by increasing) the danger, the authority subjects itself to a duty of care for the safety of others which must be discharged by the reasonably careful exercise of its statutory powers or, at least, by the giving of a warning.361 An example is provided by Birch v Central West County District Council,362 where the council was held liable for damage caused through its failure to supply electricity at the normal voltage level when it knew of the risks, avoidable by the exercise of reasonable skill and care, of providing electricity at the lower voltage level.

7.36 In some cases, the antecedent act of the public authority may lead to a situation of dependence or reliance on the authority by members of the public so that the authority comes under a duty calling for positive action. Accordingly, as in L Shaddock & Associates Pty Ltd v Parramatta City Council,363 if the authority adopts a practice of so exercising its powers that it

induces a member of the public reasonably to expect that it will exercise them in the same manner in the future, it will be liable for a subsequent omission to exercise its powers, if the plaintiff has in fact relied on the expectation and has suffered damage thereby, provided that the damage was reasonably foreseeable and provided that there are no special reasons for restricting a cause of action.364 Mason J in Heyman’s case365 also developed the theory of general reliance to indicate situations where the community at large366 might reasonably expect that [page 232] a public authority would act in a particular way in order to perform its statutory functions, without the need for contributing conduct on the part of the authority. Although applied in some lower courts,367 this theory was rejected by a majority of the High Court in Pyrenees Shire Council v Day368 on the basis that it was an artificial, fictional concept,369 lacking in any sound doctrinal footing370 and that if the general expectation of the community were to be the touchstone of liability, proving such expectation would present considerable difficulties and would displace the criterion of legislative intent.371 Following criticism of the theory by the House of Lords in Stovin, it appears also to have been discarded in English law.372 Given the now widespread criticism by the High Court of the role of proximity in establishing a duty of care generally, and despite the support given this theory by Toohey J in Pyrenees,373 it might be assumed that Deane J’s attempt in Heyman374 to develop the notion of proximity as a prerequisite for any duty of care on the part of a public authority for a negligent omission in the performance of its statutory powers might be similarly discredited. Certain new elements were identified in Crimmins v Stevedoring Industry Finance Committee as being relevant, namely, that of vulnerability of the plaintiff on the one hand, in the sense that the plaintiff could not reasonably be expected to adequately safeguard his or her own interests, and, on the other hand, the statutory authority’s knowledge of the risk coupled with the power or ability on its part to control or minimise that risk. However, each of

the judges in question375 also added other, disparate elements to their list of requirements with the result that it is difficult to define any single overall approach.376 Nor has this goal been achieved in Graham Barclay Oysters Pty Ltd v Ryan.377 Here, while there was some endorsement of these elements,378 some members of the High Court sounded a note of caution. So Gummow and Hayne JJ in a joint judgment emphasised the need to look at the totality of the relationship between the parties and not merely these specific features of it,379 while in Callinan J’s view all these are relevant features but none, of itself, is decisive.380 The earlier decision in Brodie v Singleton Shire Council381 in which [page 233] a majority of the court382 effectively abolished the distinction between misfeasance and nonfeasance on the part of highway authorities383 was premised, in part, on the powers of control vested in the highway authority by statute. The remarks made by the court in so doing were clearly intended to have a wider significance384 and to apply to all statutory authorities exercising statutory powers. Nevertheless, this was not universally endorsed either in that case or in Ryan’s case. Many of these issues were revisited in Stuart v Kirkland-Veenstra,385 with French CJ observing386 that concentrating on distinctions between decisions taken at a policy level and those of an operational character, between misfeasance and non-feasance and between statutory duties and statutory powers tends to distract attention away from the ‘primary requirement’ of analysing the legislation and the relative positions of the parties in any given situation. The various members of the High Court did agree that the existence of a statutory power is necessary, but not sufficient, without more, to give rise to a common law duty of care.387 They also agreed that, in this particular case, where the issue was whether the police owed a duty of care to take a mentally disturbed man into custody and thereby prevent his suicide, the factor of control was of critical significance.388 Beyond this there was little uniformity, some judges regarding the degree of vulnerability of those who depend on the proper exercise of the relevant power as important,389 while others noted that this ‘has not been universally accepted as a useful analytical

tool’.390 Other relevant considerations were said to include the ‘consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.391 These factors aside, the court was unable to identify any ‘guiding principle’ by which an authority might be considered to be obliged to exercise its powers; accordingly,‘the search continues’.392

Occupiers’ liability 7.37 The law of occupiers’ liability is concerned with the duty owed by occupiers of land or premises towards visitors, whether invited or uninvited, whose presence is lawful or unlawful, who suffer injury during the course of their visit.393 Although [page 234] the law in this area has never been regarded otherwise than as an integral part of the general law of negligence,394 a complex system of special rules was developed in the United Kingdom, Australia and other countries which inherited the common law tradition. These rules strictly regulated the duty of care owed by occupiers so that different duties governed different categories of entrant. A variety of factors can be invoked to explain the existence of these ‘special’ duties,395 which evolved during the latter part of the nineteenth and the early part of the twentieth century and which, by the time Lord Atkin formulated his now famous ‘neighbour’ test,396 appeared so well settled that they ‘seemed to have reduced this branch of the law to a formulary’.397 Two factors in particular are worth mentioning. The first is that these ‘special’ duties reflected then prevailing attitudes about the sanctity of ownership of property. Any duty of care owed by the owner/occupier was, accordingly, framed so as to produce a minimal intrusion on these rights. The second point is that the injury suffered by the visitor usually resulted from some defect in the static condition of the premises (for example, falling over an unsteady railing), rather than from any activity taking place there. The courts were therefore reluctant to place too heavy a burden on the occupier whose fault was regarded as one of omission rather than one of commission. The High Court, in its landmark decision in Australian Safeway Stores Pty

Ltd v Zaluzna,398 decided that it could no longer justify the continued recognition of the ‘special’ duty of care of occupiers, whether as an independent duty co-existing with the general duty of care in negligence or as being subsumed under it. The time had come to simplify the operation of the law to accord with the statement of Deane J in Hackshaw v Shaw.399 Consequently, it held that, in order to decide whether the respondent was owed a duty: [A]ll that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member.400

7.38 By adopting this test the High Court has irrevocably integrated the law of occupiers’ liability into the mainstream law of negligence, thereby achieving by [page 235] judicial fiat what the United Kingdom,401 New Zealand402 and some of the Australian states403 had done by legislation. The Zaluzna decision was not, however, an isolated or random exercise of the court’s powers but rather the culmination of a move begun over 35 years previously towards reform of the law in this area. Moreover, the court itself404 regarded this decision as ‘wholly consistent’ with the trend of recent decisions touching the law of negligence, not only in this area of occupiers’ liability but also in the area of negligent misrepresentation which was the subject of consideration in San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979.405 The initial impetus for change came about because of the judicial perception that a system which graded the duty owed by occupiers strictly according to the class of entrant, and which accorded no extra consideration to individual cases, was too restrictive for modern conditions. The law which afforded relief to invitees only in respect of unusual dangers, to licensees only in respect of hidden dangers and which, to trespassers, offered its protection solely with respect to ‘some act done with the deliberate intention

of doing harm to the trespasser, or at least some act done with wilful disregard’ of their presence,406 was particularly ill-suited to the needs of a modern Australia where greater relative importance had been given to personal safety at the expense, where necessary, of freedom in the use and control of property.407 The need to develop the law judicially in those jurisdictions where the legislature had not intervened was especially pressing in the case of trespassers because the Addie408 formulation took no account of the different categories of trespassing plaintiff. They were all to be accorded the same duty of care regardless of whether they had entered as thieves,409 strayed on to the property by accident, or, perhaps, were children attracted there by some allurement.410 In its initial attempts at liberalising the law the High Court did not discard the ‘special’ rules of the common law which had ‘adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others [page 236] and [which established] a special standard of duty … in reference to each class’.411 It preferred, by and large, to adopt the view that there might coexist with, or be superimposed on, the special duty which is owed by an occupier to the various categories of visitor ‘a general duty of care, which is not related to the condition of the premises, and which arises not from the fact of occupation but from the general circumstances of the case’.412 This ‘co-existence doctrine’ was to have a profound effect on the law of occupiers’ liability, for it meant that the special rules which had been developed to express the limits of liability of an occupier might not be exhaustive of the sources of liability to persons who suffer injury while on the land.413 To take the most extreme example, even where the plaintiff was a trespasser, he or she might nevertheless still be a ‘neighbour’ within the Donoghue v Stevenson meaning of that word.414 This would not happen automatically. The facts of the case had to be such that the court could infer the existence of a general duty of care arising not out of the static condition of the premises (for this would give rise only to the special duty) but from the general dynamics of the situation.415

It is not proposed to trace in any depth the developments that were taking place in the United Kingdom courts with regard to the law of occupiers’ liability. It is sufficient to note that the House of Lords in London Graving Dock Co Ltd v Horton416 rebuffed the idea that the duties owed by an occupier to an invitee might be assimilated into the general law of negligence. The Privy Council, too, in Commissioner of Railways v Quinlan417 was hesitant about accepting the liberating solution of a dual relationship proposed by the High Court, preferring instead a modified version of the Addie formula as providing an authoritative and comprehensive definition of the liability of an occupier to a trespasser. As to the proposition expressed by the High Court418 that Donoghue v Stevenson had effected a reorientation of the law in the light of which the isolation of occupiers’ liability was required to be ‘re-examined and tested’, the Judicial Committee remarked tartly that the ‘shorthand of Donoghue v Stevenson’ had, by 1964, already been ‘somewhat overworked’.419 The views expressed by Kitto J in Thompson’s case420 were criticised on the basis that, if they were to be implemented, ‘the task of charging juries as to what the law requires or allows will become virtually incapable of formulation’.421 The solution proposed was to widen the scope of the special duty, particularly where trespassers were involved, thereby reducing the need to invoke two separate parallel duties.422 [page 237] An analysis of the decisions of the High Court post-Horton423 show a consistent trend away from the rigid approach which it exemplified,424 such that Gibbs CJ in Public Transport Commission (NSW) v Perry was able to reassert that the occupier may owe to a person lawfully on his or her land a general duty of care in addition to the special duty which is owed by an occupier to an invitee or a licensee.425 Any lingering doubts as to whether the concept of dual duties of care applied to persons entering premises as trespassers must be taken to have been ultimately expelled by the decision in Hackshaw v Shaw.426 Despite the undoubtedly liberating nature of the dual duty approach, there still remained scope for disagreement and hence uncertainty in the law. As

Deane J noted in Hackshaw’s case,427 the High Court’s formulation meant that the only acceptable basis in principle for a conceptual differentiation between the ‘special duty’ of an occupier to a visitor and the ordinary common law duty of care was to be found in the distinction between the static condition of the premises on the one hand and activities on premises on the other. But, as both courts428 and academic writers429 have demonstrated, to treat this distinction as a rigid line of demarcation between different duties is, in its own way, as arbitrary and unworkable as the determination of the existence and scope of a duty of care by reference to the fixed characterisation of a visitor as an invitee, licensee or trespasser. These difficulties surfaced in Papatonakis v Australian Telecommunications Commission,430 as is apparent from the differing views of the judges hearing the case in categorising the nature of the duty.

7.39 In view of these difficulties as well as those posed in attempts to define the precise inter-relationship of special and general duties,431 a majority of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna held432 that the time had come to assimilate the two sets of duty. As they explained: It seems to us that the utility of the theory of concurrent duties could be accepted only if a situation could arise in which it was possible to establish a cause of action in reliance on Indermaur v Dames which could not be pursued by reference to the general duty of care postulated in Donoghue v Stevenson. And yet case after case affirms … that the special duties do not travel beyond the general law of negligence. They are no more than an expression of the general law in terms appropriate to the particular situation it was designed to address. [Consequently] … [t]here remains neither warrant nor

[page 238] reason for continuing to search for fine distinctions between the so-called special duty … and the general duty …433

In Phillis v Daly,434 the concern was expressed that, if judges persisted in utilising the formulae now considered obsolete, they might fall into the trap of continuing to apply outmoded legal doctrine in the guise of a general duty of care. Accordingly, while it would still be material for judges, in assessing questions of duty and standard of care, to consider the nature of the danger, including whether it was static, dynamic, concealed, obvious or unusual (in

the ordinary sense of these words), nonetheless: … it may well be an invitation to error to retain in such assessments formulae such as ‘unusual danger’ or ‘concealed danger’, which have attracted particular interpretations which may constitute unsure guides when removed from the conceptual concept in which they were generated. I do not think, in short, that there is any point in attempting to determine the proper discharge of the general duty by reference to these criteria. I think it better to consign all these terms of art to the destination to which the High Court has despatched the authorities which produced them.435

The use of these terms nonetheless persists, if only as a convenient shorthand means of describing the status of a particular entrant436 or the nature of the danger437 but it should not be assumed that, by adopting the Donoghue v Stevenson concept of duty of care for all entrants, the High Court thereby intended to impose upon the occupier of property the same obligations in relation to every entrant,438 or to disregard other relevant aspects of the relationship between the occupier and entrant.439 Nor, where two or more persons occupy the same premises, will each of them necessarily owe a particular entrant the same measure of duty.440 Nor does the application of the ordinary duty of care mean necessarily that trespassers will now be more likely to win compensation.441 The identity of the visitor and the facts surrounding the [page 239] entry442 will remain of cardinal importance both in deciding initially whether a duty is owed and, thereafter, in ascertaining the extent of that duty. Where the presence of a person upon the land is lawful, the courts have long acknowledged that the mere relationship between the occupier on the one hand and the invitee or licensee on the other will, of itself, generally suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury materialising.443 Given these precedents it should not be surprising that a majority of the High Court in Nagle v Rottnest Island Authority444 should conclude that, by encouraging members of the public to swim in the Basin, the authority brought itself into a duty relationship with them. But, whereas the majority regarded as pivotal the promotional activities of the authority, namely, ‘installing, maintaining and servicing various facilities on that part of the reserve … immediately adjacent

to the Basin’,445 Brennan J preferred to approach the matter from the more traditional perspective that any duty in such cases446 necessarily arises out of the control and management of the reserve vested in the authority.447 The power to control has also been central to the courts’ consideration whether to hold an occupier liable to an entrant for failure to prevent injury or damage through attacks by third parties.448 The clarity of the Brennan approach in Nagle was somewhat marred by the existence of a duty subsequently being made dependent upon whether the danger of diving was apparent, thereby confusing the question of the existence of a duty with the separate issue of its scope and subsequent discharge. Once a duty relationship is acknowledged the content of that duty depends upon the particular circumstances,449 including the perception of the reasonable occupier as to the magnitude of the risk, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience that taking precautions would involve.450 The obviousness of the [page 240] danger is part of this equation.451 And where the duty is owed by a public authority to entrants on public land, its content is to be determined by reference to the entrants as a class, rather than as to each as an individual.452 There will always be room for difference in deciding these issues including that of the need to issue a warning in appropriate circumstances.453 For example, in Nagle, the majority held that a sign warning of the dangers should have been erected,454 whereas Brennan J was of the view that, as the danger was patent, the sign was immaterial455 and, indeed, might even have increased the danger by conveying the false impression that diving into other parts of the Basin was safe.456 As stated by the High Court in Thompson v Woolworths (Qld) Pty Ltd,457 the conclusion, in a given case, that a warning is either necessary or sufficient ‘itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care … There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to [them]’.

7.40 Account must also be taken of the reason for the entry as well as the degree of skill or knowledge which may reasonably be expected to be shown

by the visitor.458 Compensation has, for example, been denied to skilled independent contractors injured when encountering risks ordinarily incidental to the task they have been invited onto the premises to perform.459 The fact that the visitor is a trespasser will always be relevant, because in this event the mere relationship between the trespasser and the occupier will not, without more, lead to the existence of a duty of care. It is impossible to define exhaustively the combination of factors which may, as a matter of law, supply the requisite degree of proximity460 to achieve this, but [page 241] these would no doubt include the identity of the trespasser and the motive or reason for the visit,461 as well as any knowledge on the part of the occupier as to the actual or likely presence of that person on the property or any dangers that the trespasser might encounter.462 Where the trespasser is a child the rule still holds good that the occupier is under a duty to take reasonable care to protect it from danger caused by an allurement on the property.463 It is to be noted that the Zaluzna decision did not expressly deal with duties owed to contractual entrants (namely, those paying for admission). Traditionally, contractual entrants have enjoyed a higher standard of care than other entrants in the sense that: Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them.464

In Morawski v State Rail Authority of New South Wales, Kirby P considered465 that the Zaluzna decision had not affected the duty owed to contractual entrants, although he did not rule out the possibility that this duty might, in the future, be assimilated to the general standard established by that case.466 Subsequently, in Neindorf v Junkovic467 he expressed the view that not only had the distinctive category of ‘contractual entrant’ been retained, but that a higher standard of care is owed not only to contractual entrants but also to other members of the public who enter the premises by invitation to do business with the occupier. The measure, applying either standard may not be too dissimilar;468 for the existence and terms of the contract would surely

be regarded as relevant criteria in assessing the duty in an application of the Zaluzna rule. The High Court in Northern Sandblasting Pty Ltd v Harris469 and Jones v Bartlett470 had occasion to consider the nature of the landlord’s duty, as occupier, towards [page 242] his or her tenants.471 Apart from Brennan CJ, in whose opinion the duty was the same as that owed traditionally to contractual entrants,472 the view widely endorsed by the court473 on both occasions was that the landlord/occupier’s duty to tenants was limited to taking reasonable care to avoid risk of injury. McHugh J474 went as far as to say that, as the duty of reasonable care was the benchmark of the law of negligence, no exception should be made in this instance. Since this duty is premised primarily on the landlord’s powers of control, it is limited to defects existing at the assumption of the tenancy475 and, possibly, if defects develop during the term of the tenancy, to those of which the landlord knew or should have been aware.476 These cases also confirm the demise of the former common law rule477 whereby landlords enjoyed a limited immunity from liability in negligence to their tenants.

Pure mental harm or ‘nervous shock’478 7.41 It is not uncommon for a person who suffers physical injury also to suffer some form of mental trauma. In such a situation, the law has little difficulty in providing compensation for that mental harm. It is no more than consequential on the physical injury, and, provided that the person who caused the physical injury is liable therefor, and that injury to the mind is not too remote a consequence of the injury to the body, liability follows as of course. However, in some circumstances the only injury suffered by a plaintiff is mental harm. One instance is when a parent succumbs to a psychiatric disorder on either seeing his or her child suffer a physical injury, or even fearing that the child is in imminent danger of such a fate. Another example

is that of an employee who suffers a recognisable psychiatric disorder as a result of being exposed in the course of employment to the results of sometimes harrowing crimes committed against children. It is with cases such as these that this part of the chapter is concerned. In what circumstances will a defendant owe a duty of care to guard against the suffering of mental harm unaccompanied by any physical injury? It is because the plaintiff has not suffered any physical injury that the type of harm is here described as ‘pure’ mental harm. [page 243]

What is pure mental harm? 7.42 At the outset, it must be made clear that not all injury to the psyche, if not consequential on physical injury, is compensable. At common law479 the only type of pure mental harm for which liability ensues is that which consists of a recognisable psychiatric injury,480 usually referred to rather crudely as ‘nervous shock’. As will be explained in 7.47, the phrase ‘nervous shock’ is — or at least ought to be — declining in currency. It was given particular emphasis by Brennan J in Jaensch v Coffey,481 when he stated that, to be compensable, this form of injury required a ‘sudden sensory perception … of a person thing or event’ which is so distressing as to be the cause of such an illness. However, this concept of a sudden sensory perception, while relevant in some circumstances to determining liability, is not necessarily essential. But the previous insistence by the courts on liability being restricted to those illnesses which psychiatry either recognises now or may come to recognise in the future remains a core element. Thus grief482 or sorrow483 alone, however deeply felt, do not sound in damages. These reactions, like anxiety, distress484 or depression,485 are feelings which most normal people experience when someone they are fond of is injured or killed. The common law does not compensate the victims for this form of emotional distress.486 The ‘very universality of those emotions denies to them the character of compensable loss under the tort of negligence’.487 The major advantages of such a threshold test are that it sets a standard which is objectively

ascertainable, it is based in principle rather than pragmatism, and it is flexible enough to change as the profession of psychiatry recognises more conditions that may give rise to psychiatric illness.488 However, an unfortunate difference has now emerged between the position at common law, which obtains in Queensland, Western Australia and the Northern Territory, and that under the statutory regime in force in the other Australian jurisdictions. The common law approach is that pure mental harm is compensable, provided that it consists of either an injury which is currently recognised by the psychiatric profession, or one which may come in time to be included within that category. As has been mentioned, the phrase that has been used by the courts since 1970, and repeated in the most recent pronouncements [page 244] from the High Court of Australia and the New Zealand Court of Appeal, is ‘recognisable psychiatric injury’. In the Australian Capital Territory, New South Wales, Tasmania and Victoria, on the other hand, legislation denies liability for pure mental harm resulting from negligence ‘unless the harm consists of a recognised psychiatric illness’.489 Unless the legislation is regarded as ambulatory in effect, and as speaking of illnesses which are recognised as at the time that a particular plaintiff suffered the harm of which he or she complains, it appears that it has frozen liability for this type of harm as that harm was understood by the psychiatric profession in the earliest years of last century.

Development of the law 7.43 The courts have in the past been cautious about awarding damages for injuries to the person other than physical ones. There were several reasons for this reluctance to award damages for emotional disturbance. These included the difficulty of putting a monetary value on such a loss; the risk of fictitious claims and excessive litigation (‘opening the floodgates’); the difficulty of proving the link between the conduct of the defendant and the shock to the plaintiff,490 and one must also take account of the fact that advances in legal

thought are likely to lag behind developments in medical knowledge.491 Although it was held, in the latter years of the nineteenth century,492 that physical illness caused by nervous shock could not be the subject of a claim in negligence, that view was discarded even by the early years of the twentieth century.493 During the first half of that century, the law advanced steadily in widening the ambit of cases which would attract liability so that, by the early 1980s, in Jaensch v Coffey,494 the High Court was able to give some clear guidance as to the circumstances in which a duty would be found. In the final two decades of the twentieth century, while Jaensch v Coffey was the only case of pure mental harm to reach the High Court of Australia, the House of Lords heard three cases which together create something of a ‘patchwork quilt’ of liability.495 For one thing, a clear distinction is made in the United Kingdom between ‘primary’ and ‘secondary’ victims.496 A primary victim is one who was at risk of physical injury by the conduct of the defendant and who, although not in fact suffering any physical harm at all, succumbs to a recognised psychiatric illness. In such circumstances, it was said, there is no need to limit liability to any greater degree than is the case with instances of physical injury. Thus, all that the plaintiff is required to show is reasonable foreseeability by the defendant of the likelihood of physical harm to the plaintiff. Liability is, however, much more closely confined when the claimant is a secondary victim. Such a person, for these purposes, is one who, while suffering no physical [page 245] harm, and not being at risk of physical injury, succumbs to pure mental harm because of the effect of witnessing, or hearing about, physical injury to others. In the case of such victims, the House of Lords has constructed various ‘control devices’ in order to limit the number of successful claims that may be made.497 These control devices are, put very broadly, the need for a close and loving relationship between primary and secondary victim, and the proximity in time and space between the accident causing physical injury to the primary victim and the onset of mental harm by the secondary victim. A further refinement was put upon these principles by the House of

Lords in White v Chief Constable of South Yorkshire,498 holding that a plaintiff cannot be regarded as a primary victim unless she or he is, at least, exposed to the risk of physical injury. The effect of that case is that an employee who claims against an employer for pure mental harm will be regarded as a primary victim in relation to conduct engaged in by the employer which directly affects the employee, but as a secondary victim in relation to mental harm which is a consequence of injury suffered by others. Although the classification of victims of psychiatric injury as primary or secondary is not part of the law of Australia,499 it has been adopted in the following pages for descriptive purposes only.

7.44 In contrast to the possibly over-refined state of the law in England, the principles relating to recovery for pure mental harm in Australia have recently received a measure of clarity both from the High Court and most of the state and territory legislatures. In 2002 the High Court handed down its judgment in the conjoined appeals in Tame v New South Wales and Annetts v Australian Stations Pty Ltd.500 Not long thereafter, most legislatures enacted provisions which seek to encapsulate the broad thrust of the six differing opinions given in Tame, and which in most cases501 draw upon the recommendations of the Review of the Law of Negligence. In Tame, a woman who had been involved in a motor vehicle accident was wrongly reported as having consumed a substantial amount of alcohol. Although the mistake in the police report was corrected as soon as it was discovered, it preyed on Mrs Tame’s mind and, in due course, led to her suffering a recognisable psychiatric injury. Her claim for damages against the police who had made the original report (for whom the state is vicariously liable: see 26.54) was dismissed by the High Court. The claim in Annetts was by the parents of a 16-year-old boy who had been engaged as a jackaroo by the defendant, but who perished when he vanished from the defendant’s cattle station in the Kimberley region of Western Australia. The parents, who lived in New South Wales, suffered mental harm as a consequence of hearing of that death only after a wait of almost five months for reliable information about the fate of their son. The High Court held that they had a good cause of action. In arriving at the respective conclusions in the Tame case and the Annetts case, the High Court made it clear that it was seeking to resolve some of the uncertainties that had surrounded this area of the law. The legislation no

doubt has [page 246] a similar aim, although it is part of the package of legislation designed to ameliorate the so-called ‘insurance crisis’ and may also seek to restrict liability to some extent to a degree greater than that which follows from the Tame case. It is the purpose of the following pages to provide an indication of the state of the law as a result of these twin developments.

The basis of liability 7.45 Legislation in all jurisdictions other than Queensland and the Northern Territory states as a primary requirement that a duty of care will arise only if ‘the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken’.502 The legislation goes on to make it clear that a defendant may nevertheless be liable if he or she knew, or ought to have known, that a particular plaintiff was especially vulnerable to injury of this sort.503 In expressing the law in this way the legislation has at least (it may be hoped) clarified the issue, and placed the normal fortitude of the plaintiff as a preliminary barrier to relief. If, as the facts of the Tame case illustrate, the defendant’s conduct would not have caused such a recognisable psychiatric injury in an objectively ascertained reasonable person, who is able to withstand the ordinary pressures of everyday life on the psyche, then there is no liability to one whose extreme sensitivity results in the onset of a recognisable psychiatric illness. The position at common law, which applies to any psychiatric illness suffered before the commencement of the above legislation,504 and which continues to apply in Queensland and the Northern Territory, is not so straightforward. Prior to the Tame case, it had been assumed, but never directly decided, that the existence of a duty of care owed to the plaintiff fell to be determined upon the assumption that the plaintiff was of a normal degree of susceptibility. This was said to be due to the fact that ‘reasonable foreseeability is an objective criterion of duty, and a general standard of

susceptibility must be postulated’.505 Where it is reasonably foreseeable that the accident or its aftermath might be perceived by a person or class of persons for whom it is likely to have a special significance (like the parent of a child injured in an accident) the question of reasonable foreseeability of shock falls to be decided in the light of the heightened susceptibility which the special significance would be expected to produce.506 Persons of extraordinary sensitivity, who suffer shock in circumstances where so-called ‘normal’ persons or persons for whom the events have a special significance would not suffer, will not be able to recover damages, unless the defendant had knowledge of the extraordinary risk.507 [page 247] The view that liability depended on the response of a person of normal sensitivity also found support in the intermediate appellate courts in both the Tame case508 and the Annetts case,509 and by a minority of the High Court on the further appeal in both.510 However, the majority in the High Court considered that foreseeability of psychiatric injury to a person of normal fortitude was not a requirement or necessary precondition of liability. Rather, it was said, the issue was one of reasonable foreseeability of the risk of such an injury, in the sense of that risk not being far-fetched or fanciful.511 But, at least for Gummow and Kirby JJ, it was regarded as possible that ‘in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of “normal fortitude” is nonetheless not far-fetched or fanciful’.512

Factors to be taken into account 7.46

Apart from the role played by the fortitude of the plaintiff in determining the existence of a duty of care, both common law and statute now set liability, not by reference to any ‘bright-line’ rules or requirements, but by an assessment of a variety of factors which may have greater or less weight depending upon all the circumstances of the particular case.

7.47 Whether the psychiatric illness was the result of a sudden shock The limitation that a plaintiff could not recover unless the psychiatric illness

was the result of a sudden shock was regarded by Brennan J, in Jaensch v Coffey,513 as an obvious and necessary means of keeping liability for this type of harm within reasonable bounds. However, the notion that the illness must be shock-induced was rejected as a precondition of recovery, at least where the plaintiff was a ‘primary victim’ and the illness had been caused by the conduct of the plaintiff’s employer, in New South Wales v Seedsman.514 The plaintiff in that case was a police constable who had been assigned to the Child Mistreatment Unit, with little or no training in stress management or even detective work. In that unit, she was obliged to interview, and on occasion to prepare for trial, victims of child abuse of various kinds, which work exposed her to the sometimes harrowing consequences of crimes committed against children. Her claim for post-traumatic stress disorder caused by her employer’s failure to provide a safe system of work was upheld by the New South Wales Court of Appeal, despite the fact that there was no specific instance which she could identify as having brought on this illness. Mason P considered515 that the principles relating to standard of care and remoteness of damage were adequate ‘control devices’ in that situation. [page 248] The High Court in Tame has now followed that line of thinking and concluded that in all cases of pure mental harm the question of whether the illness was shock-induced is not a prerequisite to liability, but one of a variety of factors to take into account in assessing that issue.516 This approach has also been adopted in the legislation dealing with this type of harm. In all jurisdictions other than Queensland and the Northern Territory, one of the matters to which a court may517 have regard in determining liability is ‘whether or not the mental harm was suffered as a result of a sudden shock’.518 This change of approach may well mean that some claims which heretofore would have been rejected may in future be upheld. It had, for instance, been said that no recovery was possible where the psychiatric illness was caused not by shock but by the experience of coping with the deprivation of a loved one519 or by caring for a tortiously injured close relative,520 but these views will need to be reconsidered in the light of the

current state of both the common law521 and (where applicable) statute law. At the very least, one can say with certainty that the decision in Seedsman has been vindicated by these changes and will be followed in future.

7.48 Direct perception of distressing events Prior to the decision in Tame, a further ‘control factor’ which the courts had imposed was that, if the plaintiff were a ‘secondary victim’, the psychiatric illness must have resulted from a relatively close connection with a distressing event affecting the primary victim. As the matter was put by Brennan J in Jaensch v Coffey,522 liability for what was then described as ‘nervous shock’ required the direct perception by way of either sight, hearing or touch of some or all of the distressing events which combine to create the accident or its aftermath. However, this demand for direct perception is one that has steadily been weakened over the course of the twentieth century. The English Court of Appeal originally limited recovery to instances where the shock resulted from what the plaintiff ‘saw or realised by her own unaided senses, and not from something which someone told her’,523 but this limitation was effectively dispensed with during the latter half of the twentieth century. In Benson v Lee,524 Lush J interpreted the notion of ‘direct perception’ to include the sight of the immediate aftermath of the accident, even though the plaintiff had not seen or heard the actual impact [page 249] (or explosion or other precipitating event).525 This interpretation was in line with earlier decisions which had rejected as arbitrary the insistence on limiting recovery to actual witnesses of the accident itself.526 It had also been said that witnessing a television broadcast of a disaster might provide the equivalent of actual sight or hearing of the event or its immediate aftermath,527 or hearing about a disaster in the course of a telephone call possibly from the other side of the world.528 It was also established that a plaintiff injured in an accident could recover damages for nervous shock caused by the death in the same accident of a relative or friend, even if that death was not directly witnessed or remembered by the plaintiff (who might, for example, have been rendered unconscious), but only subsequently reported.529 And Jaensch v Coffey put beyond doubt the conclusion that a

plaintiff might recover damages, even though he or she was not a party to an accident at all but had suffered shock after later visiting the primary victim in hospital. Although the Full Court of Western Australia, in Annetts,530 relied, as one basis for rejecting the parents’ claim, on the fact that they had not directly perceived any distressing events connected with the death of their son, this was an extremely conservative view.531 The High Court, in Tame,532 has now endorsed a more progressive view, and has established that, like the supposed requirement of sudden shock, direct perception of distressing events or their aftermath is no longer a prerequisite to liability, but a further factor to be taken into account in the overall assessment of a particular claim. The legislation in all jurisdictions other than Queensland, Tasmania and the Northern Territory now takes a similar approach, in listing, as one of the matters to which a court must have regard in determining liability for pure mental harm, ‘whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger’.533 However, legislation in New South Wales, South Australia, Tasmania534 and Victoria imposes a limitation on the recovery of damages for pure mental harm suffered by a secondary victim. Such a person is disentitled from claiming damages for such an injury unless he or she ‘witnessed, at the scene, the [primary] victim being killed, injured or put in peril, or [was] a close member of the family of the [primary] victim’.535 The High Court, in a conjoined action in Wicks v State Rail [page 250] Authority of NSW; Sheehan v State Rail Authority of NSW536 rejected the argument that rescuers, who had arrived at the scene of a passenger train derailment some time after it occurred should be denied recovery for pure mental harm under this provision on the basis that they had not actually witnessed the derailment. The court based its decision on the assumption that the ‘consequences of the derailment took time to play out … even if all of the deaths were instantaneous … not all the injuries sustained by those on the train were suffered during the course of the derailment. And the perils to which living passengers were subjected … did not end when the carriages

came to rest’. While this reasoning would presumably allow for recovery in cases such as Mount Isa Mines v Pusey537 and Chadwick v British Transport Commission,538 nevertheless recovery would be precluded in situations where all the primary victims have been killed outright prior to the would-be rescuers’ arrival — a car crash being an obvious example, and to this extent, at least, the provisions of the legislation remain restrictive.

7.49 Relationship between primary and secondary victim Although originally liability for mental harm was limited to those who suffered the harm out of concern for their own safety,539 this limitation was eased considerably in Hambrook v Stokes Brothers,540 in which the English Court of Appeal held that mental harm may be a recoverable head of damage even though the injury did not stem from fear of personal injury but from fear of physical injury to a close relative (in that case a mother fearing for the safety of her young children). Since then, the courts have generally regarded the relationship between the primary and the secondary victim as a further factor to take into account, but not as imposing an absolute limit on liability.541 Thus, as already mentioned, workmates542 and rescuers543 have been recognised, at common law, as having a sufficient ‘relationship’ with the primary victim to permit them to recover. But it is also clear that a person who has no close family or work ties to the accident victim may have difficulty establishing that the mental harm is a reasonably foreseeable result of the defendant’s negligent conduct. Bystanders indulging their morbid curiosity at the scene of an accident would be hard pressed to prove to the court the degree of connection necessary to warrant the conclusion that a duty of care was in fact owed to them.544 And no doubt the courts will continue to deny recovery to persons of fine sensibilities who, perhaps years after the event, suffer shock at the sight of a severely disfigured accident victim.545 The High Court did not address this issue in Tame, because Mrs Tame was denied recovery on other grounds, and there was no doubting the closeness of the bond between Mr and Mrs Annetts and their son. The relationship (if any) between primary and secondary victim is a factor which, like that of the directness (or otherwise) of the perception of injury or death of [page 251]

the primary victim, has been given varying effect by legislatures around Australia. On the one hand, legislation in all jurisdictions other than Queensland, Tasmania and the Northern Territory list as a further matter to which the courts must have regard in assessing the overall circumstances of a particular case ‘the nature of the relationship between the plaintiff and anyone killed, injured or put in danger’.546 But on the other hand, in New South Wales,547 South Australia, Tasmania and Victoria, even one who can establish liability, based in part at least on this factor, would be denied the right to damages unless he or she were a close member of the family of the primary victim.548 And, in complete contradistinction to the legislation just mentioned, the legislatures in the two mainland territories have extended the ambit of liability for the parents or domestic partners of a primary victim. Such persons are permitted to recover for any mental harm they suffer as a result of physical injury to the primary victim, by virtue solely of the fact of that relationship, and subject to no other limiting or ‘control’ factors.549

7.50 Relationship between plaintiff and defendant A further factor which legislation in all jurisdictions other than Queensland and the Northern Territory requires courts to take into account when considering liability for mental harm is ‘whether or not there was a pre-existing relationship between the plaintiff and the defendant’.550 The existence or otherwise of any such relationship may have relevance in two quite distinct circumstances: first, where there is an employment relationship (or something akin thereto) between the plaintiff and defendant, and secondly, where the plaintiff’s mental harm is caused by the defendant’s injury not of a third person but of the defendant personally. In Tame v New South Wales, McHugh J, alone of the members of the court, rested his imposition of a duty of care on Australian Stations Pty Ltd on the pre-existing relationship between that company and Mr and Mrs Annetts.551 He stressed552 that the parents only agreed to their son’s employment by the defendant after being assured by it as to various aspects of the nature of that employment. He went on to observe553 that such an assurance gave rise to a duty on the part of the defendant to supervise and take care of James Annetts so as to avoid inflicting harm on his parents, and that such a duty was owed both in contract and in negligence. His Honour further expressed the view that any question of the reasonable fortitude of the plaintiffs, the directness or otherwise of their perception of distressing events and any issue relating to

whether their illness had been shock-induced were quite irrelevant. As he put the matter, viewed as a claim in contract, there could only be one duty: The law of contract does not imply two terms of reasonable care; it does not imply a duty to protect against physical harm and a separate duty to protect against psychiatric

[page 252] injury. It simply implies a general duty to take reasonable care for the safety of the employee.554

In relation to a claim by an employee against an employer for mental harm arising from the workplace, the views of McHugh J provide support for the opinion expressed by the New South Wales Court of Appeal in New South Wales v Seedsman.555 In that case it was held that an employer was liable for mental harm suffered by an employee, so long only as that type of harm was reasonably foreseeable.556 In coming to that conclusion, the court declined to follow the decision of the House of Lords in White v Chief Constable of South Yorkshire Police,557 that an employer’s duty to guard against an employee’s mental harm arises only when there is also a risk of physical injury. Not only has the New South Wales Court of Appeal subsequently repeated its earlier view, in Patrick Stevedores (No 1) Pty Ltd v Vaughan,558 but McHugh J, in Tame, remarked that the view expressed in White ‘does not represent the law of Australia’.559

7.51 The other circumstance in which a pre-existing relationship (or the absence of such a relationship) may be relevant is that in which a claim for mental harm is based upon the plaintiff’s witnessing the fact, or the apprehension, of physical injury which the defendant has inflicted upon himself or herself, rather than on a third person. The view had been expressed by Deane J in Jaensch v Coffey,560 relying upon a dictum of Lord Robertson at first instance in Bourhill v Young,561 that the plaintiff in such a case could not recover. The reason proffered was that a relevant duty of care ‘will not exist unless the psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury’. This view of recoverability, premised upon (unexplored) policy considerations,562 is an unwarranted restriction, out of line with other areas of the law of negligence. For example, there is no

similar principle excluding recovery by rescuers from persons who negligently place themselves in perilous situations (see 7.25), and there is no logical reason to limit recovery in that situation to physical injury. Although this restriction has been accepted as correct, and applied to deny liability, in England,563 it was regarded as of doubtful validity by [page 253] the Full Court in South Australia,564 and has been rejected by the New South Wales Court of Appeal, in FAI General Insurance Co Ltd v Lucre.565 In that case, the driver of a motor car suddenly swerved onto the wrong side of the road and car and driver were crushed by a large truck driven by the respondent. Despite the lack of any suggestion of carelessness on the part of the respondent, he was beset by feelings of guilt and remorse, and was diagnosed as suffering from post-traumatic stress disorder. The court could see no principled reason to deny recovery simply because the primary victim was the defendant, or one standing in the defendant’s shoes. However, without more, the plaintiff might have been considered a ‘mere bystander’, a factor which would have weighed heavily against his right to recover. This argument was countered by emphasis on the fact that the plaintiff had (albeit innocently) caused the death of the deceased and was thus an unwilling participant in the circumstances that led to the onset of the mental trauma.

7.52 Extent of mental harm It is well established in relation to a claim for compensation for physical injury that once the plaintiff has proved that the defendant’s breach of duty caused some damage of a type that was reasonably foreseeable, the defendant is also liable for any further injury flowing therefrom, even though the eventual injury was not reasonably foreseeable. This is known as the ‘egg-shell skull rule’, and is discussed in 9.11. The High Court in Tame v New South Wales confirmed that this rule applies to cases of mental harm in the same way as it applies to other types of injury. It has been pointed out in 7.46, that liability for mental harm depends upon establishing a variety of factors, one of which is the reasonable foreseeability of the risk of such harm in all the circumstances of the case, including the susceptibility of the plaintiff to that harm. But the ‘egg-shell

skull’ rule — or in this case the ‘egg-shell psyche’ rule — is not a principle of liability but one of compensation.566 In other words, it is concerned not with establishing a duty of care, but, on the assumption that such a duty has been found, with determining the amount required to remedy the harm. Thus, once liability has been established, by showing that some type of psychiatric illness was a reasonably foreseeable consequence of the defendant’s conduct, the plaintiff is entitled to recover for all the harm in fact suffered, however idiosyncratic that may be in the particular case.567

7.53 Contributory negligence of a primary victim New South Wales is the only legislature to impose a further restriction on the damages recoverable by one who, as a secondary victim, has suffered mental harm in connection with a primary victim suffering death or physical injury, or being put in peril thereof, by the conduct of the defendant. The Civil Liability Act 2002 (NSW) s 30(3) provides that any damages to be awarded to that secondary victim are to be reduced in the same proportion as any damages recoverable by or through the primary victim on the basis of the latter’s contributory negligence. This provision was recommended for adoption generally in the legislation of the other jurisdictions by the Review of [page 254] the Law of Negligence. The Expert Panel who prepared that Review noted that, while the subsection might appear unfair to plaintiffs, the opposite was the case from the defendant’s point of view. Why, the Panel asked rhetorically, ‘should the defendant be required to pay full compensation for the mental harm suffered by the plaintiff when it can be said to be partly the fault of the person imperilled, injured or killed?’568

7.54

Primary victim voluntarily accepted risk of harm A further limitation on recovery, in New South Wales and Victoria only, is that no damages are to be awarded ‘if the recovery of damages from the defendant by or through the [primary] victim … would be prevented by any … written or unwritten law’.569 Although this provision was not one which was recommended for adoption by the Review of the Law of Negligence, it appears to be based on the same philosophy as the provision referred to in

7.53. If the circumstances in which a person is injured or killed would not have given rise to an enforceable claim for compensation by the victim of the injury or the estate of the one killed, it is difficult to see why the perpetrator should be liable to a third person who has suffered mental trauma by reason of that injury or death. An instance in which this provision may be applicable is one where the primary victim voluntarily accepted the risk of injury or death. Any family member of, or one in a close personal relationship with, that primary victim would be disentitled from recovering for the psychiatric harm suffered as a result of seeing or hearing of the injury or death.

Damage to property 7.55 In most situations to have come before the courts, nervous shock has stemmed from the plaintiff’s apprehension as to human safety; alternatively, from the correct or erroneous (but reasonable) perception that someone has been killed. Despite the dearth of decided cases there is no legal principle570 which restricts recovery to these situations. In Owens v Liverpool Corporation571 several mourners in a funeral procession were granted damages for nervous shock after a tramcar negligently collided with a hearse, so displacing the coffin bearing the body of their close relative that it was in danger of being thrown into the road. MacKinnon LJ held that it was not necessary to prove that the shock arose out of fear for the safety of another person, and instanced the case of a favourite dog killed by negligent driving. More recently, in Attia v British Gas plc,572 the English Court of Appeal indicated its willingness to entertain a claim by a woman who suffered shock upon witnessing her home and its contents ablaze in a fire caused by the negligent installation of a central heating unit. The thrust of the court’s decision was that, provided causation and reasonable foreseeability are established, there is no legal rule to preclude recovery. The claim cannot be rejected merely on the basis that it breaks new ground nor, as a matter of policy, is the ‘floodgates’ argument particularly strong in what may well be [page 255] a fairly unusual situation.573 The court had no problem in regarding it as

reasonably foreseeable that intense distress might be caused to an ordinary householder who sees her home being destroyed by fire. It held574 further that such distress might foreseeably be of the order of the ‘acute emotional trauma’ which ‘like a physical trauma can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals’, as indicated by Lord Bridge in McLoughlin v O’Brian.575

No Duty Situations 7.56 In some limited situations, despite the apparent presence of those factors which would normally lead to the conclusion that a duty of care exists, this duty has been denied either wholly or as to the heads of damage recoverable. Four situations will be considered here, namely: the immunity bestowed upon barristers from liability for negligence committed in the course of conducting court proceedings; the immunity enjoyed in some countries by members of the medical profession from full liability for the consequences of carelessness which leads to a patient giving birth to an unplanned child; the statutory protection provided for volunteers working for community organisations; and the immunity of some landowners for damage caused by their animals straying onto the highway.

Barristers 7.57 The High Court of Australia in D’Orta-Ekenaike v Victoria Legal Aid,576 applying its earlier decision in Giannarelli v Wraith,577 reaffirmed the rule of common law that barristers are not subject to a duty of care in respect of any act done578 or omission579 made in the conduct of court proceedings.580 This immunity essentially protects barristers from suits for in-court negligence581 but also extends to work done out of court where ‘the particular work is so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing’.582 [page 256]

Work done out of court which does not meet this test, such as the giving of advice in chambers on out-of-court matters or advice as to who should be made defendant to a proposed action and how the claim against him or her should be pleaded, does not carry with it any similar immunity.583 Moreover, because it is the function performed, not the label attached,584 which gives rise to the limited immunity, it follows that immunity attaches also to a solicitor acting as an advocate either in court or in the pre-trial stage. The reason for this immunity was said to be rooted in public policy considerations, of which Mason CJ, in Giannarelli,585 isolated two as warranting serious consideration. The first relates to the peculiar nature of the barrister’s responsibility when appearing for a client in litigation and the fact that the duty to the court ‘depends on the exercise by counsel of an independent discretion or judgment in the conduct or management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice’. The second public policy consideration arises from the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings.586 While not disputing the first of these policy considerations,587 the High Court in D’Orta-Ekenaike emphasised that the ‘central justification’ for the barrister’s immunity ‘is the principle that controversies, once resolved, are not to be reopened’ and that the need for finality remains as much a ‘fundamental and pervading tenet of the judicial system’ today as it did when Giannarelli was decided.588 Although these policy considerations had long been regarded as being of transcendent importance to the public interest in the House of Lords,589 that body has subsequently changed its view, and, in Arthur J S Hall & Co v Simons,590 a specially convened committee of seven Law Lords decided that those policy reasons were no longer sufficient to justify the immunity. In particular, in relation to the second of the reasons relied on by Mason CJ in Giannarelli, the Law Lords considered that the courts have sufficient powers under the doctrine of res judicata to protect finality in civil proceedings and that a collateral challenge, in civil proceedings, to a criminal conviction was prima facie an abuse of process, and would be struck out on that ground, rendering it unnecessary to preserve the barrister’s immunity.

[page 257] The New Zealand Supreme Court in Lai v Chamberlains,591 in keeping with the views expressed earlier by the High Court592 and the Court of Appeal,593 has now decided that the ‘anomalous’594 immunity hitherto enjoyed by barristers is ‘an anachronism that has survived well beyond its natural term and should be abolished’.595 In so doing, it agreed with the House of Lords that the immunity was not necessary to meet the public interest in finality of legal proceedings or to protect the integrity of the judicial process, and predicted that the D’Orta-Ekenaike decision would be overruled in time.596

‘Wrongful conception’: ‘Wrongful life’ 7.58 Both the High Court of Australia and the House of Lords have confronted the issue of whether a mother (or both parents) of an unplanned child ought to be able to recover the costs associated with bringing up the child until (at least) the age of 18. Typically the issue arises where one or other parent has sought medical assistance to have some relatively permanent form of contraception, but, through the negligence of the doctor, either in carrying out the operation or in failing to provide appropriate advice, the mother has subsequently conceived and, in due course, borne a child. The issue has not yet come before New Zealand courts, but is likely to do so in due course. Despite that country’s no fault accident compensation scheme and its concomitant denial of recourse to the courts for compensation for ‘personal injury by accident’, discussed in 12.43ff, the costs of raising a healthy, but unplanned, child are not covered by that scheme. It follows that the parents are free to sue at common law for that loss, so long only as they can prove negligence on the part of the doctor or other health professional concerned.597 Whether New Zealand follows the lead taken by the High Court, rather than the somewhat confused approach of the House of Lords, remains to be seen. In Cattanach v Melchior,598 the respondents, having already had two children, decided not to have any more. Mrs M therefore underwent a tubal ligation, performed by Dr C at a public hospital in Queensland. Assuming,

erroneously, that her right fallopian tube had been removed, he attached a clip only on her left fallopian tube. Four years later, Mrs M fell pregnant, and gave birth to a healthy son. The parents sued both the doctor and the hospital for the negligence of the former in failing to warn her of the possibility of the continued existence of the right tube and the consequent possibility of her becoming pregnant. A majority of the High Court (McHugh, Gummow, Kirby and Callinan JJ) upheld the decision both at first instance599 and on intermediate appeal,600 that the [page 258] plaintiffs were entitled to recover the $105,000 they had claimed as the cost of raising their son until the age of 18. The reason for that conclusion, in the words of McHugh and Gummow JJ,601 was that no sufficient reason had been advanced to ‘explain why the law should shield or immunise the appellants from what otherwise is a head of damages recoverable in negligence under general and unchallenged principles in respect of the breach of duty by Dr C’.602 One argument603 was that the cost of bringing up the unplanned child was a purely economic loss, and was too indeterminate to be recoverable.604 To this the majority responded by observing that the case was ‘an instance of direct injury to the parents, certainly to the mother who suffered profound and unwanted physical events (pregnancy and childbirth) involving her person, after receiving negligent advice about the risks of conception following sterilisation’.605 To further argument that it is ‘wrong to attempt to place a value on human life or a value on the expense of human life because human life is invaluable — incapable of effective or useful valuation’,606 the majority took the view that they could perceive no general recognition in the community that: … those in the position of Mr and Mrs Melchior should be denied the full remedies the common law of Australia otherwise affords them. It is a beguiling but misleading simplicity to invoke … broad values [respecting the importance of human life] and then glide to the conclusion that they operate to shield the appellants from the full consequences in law of Dr Cattanach’s negligence.607

And, to the proposition that the parents should be required to offset against their financial losses the emotional satisfaction which they no doubt derived

from their child, the members of the majority noted that this was to compare two legally distinct interests, and thus impermissible. The interest of the plaintiffs which had been harmed was ‘the financial damage that the parents will suffer as the result of their legal responsibility to raise the child. The benefits to be enjoyed as a result of having the child are not related to that head of damage’.608 Since then some state parliaments have passed legislation effectively abrogating the High Court decision with regard to damages for the costs associated with bringing up an unplanned child.609

7.59 The situation in the United Kingdom on this issue is in marked contrast to that arrived at by the High Court. Until 1999, the Court of Appeal had allowed parents to recover the cost of bringing up an unplanned child, the birth of which was the consequence of the attending doctor’s negligence.610 However, the House of Lords, [page 259] in McFarlane v Tayside Health Board,611 unanimously concluded that, although the mother could recover for the financial and emotional costs of her pregnancy and childbirth, no damages were to be awarded for the costs of raising an unplanned child who is born healthy and without disability or impairment. The reasons given for that conclusion varied to some degree, but were summed up by Lord Bingham in a subsequent case612 as based on various aspects of legal policy. These included: [An] unwillingness to regard a child (even if unwanted) as a financial liability and nothing else, a recognition that the rewards which parenthood (even if involuntary) may or may not bring cannot be quantified and a sense that to award potentially very large sums of damages to the parents of a normal and healthy child against a National Health Service always in need of funds to meet pressing demands would rightly offend the community’s sense of how public resources should be allocated.

The McFarlane decision was limited to a claim in relation to a healthy child without disabilities or impairment. Since that case, two issues have arisen: whether all the costs of bringing up a child are still to be denied where either (1) the child or (2) the mother is disabled in some way. A specially convened panel of seven Law Lords, in Rees v Darlington Memorial Hospital NHS

Trust,613 arrived at a compromise solution applicable to all cases in which the negligence of a medical professional leads to the conception and birth of an unplanned child. The Court of Appeal in that case614 would have allowed the mother to recover the extra costs to which she would be exposed by reason of her disability, a view endorsed by a minority of the House of Lords. However, the majority of their Lordships’ House, while upholding the decision in McFarlane, added a ‘gloss’615 thereto, that there be a conventional award of £5,000,616 in addition to the award for the physical and emotional consequences of the pregnancy and birth, to mark the fact that a wrong had been done to the mother by the doctor’s negligent performance of a sterilisation procedure. In the words of Lord Bingham:617 The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone derisory, award. It would afford some measure of recognition of the wrong done. And it would afford a more ample measure of justice than the pure McFarlane rule.

In the course of their opinions, several members of the House of Lords considered the decision of the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust.618 In that case, the mother had undergone a negligently performed sterilisation procedure, but subsequently conceived and bore a child who was born with severe disabilities. The Court of Appeal, while being bound by McFarlane to [page 260] reject a claim for the whole cost of bringing up the child, awarded the mother the additional costs that she would incur so far as they were attributable to the child’s disabilities. Those of their Lordships who were in dissent in Rees, and who would have upheld the mother’s claim in that case for the extra costs attributable to her disabilities, not surprisingly expressed agreement with the Court of Appeal decision in Parkinson.619 Of the Law Lords who formed the majority in Rees, however, only Lords Millett and Scott referred to the decision in Parkinson, and both expressed some misgivings as to its correctness.620 It appears that any final conclusion on that issue must await yet another appeal to the House of Lords.

7.60 By comparison, neither United Kingdom courts nor those in Australia

have recognised so-called wrongful life claims621 brought by profoundly disabled children against medical practitioners for negligently failing to diagnose or warn their mothers of the risk of their being born with such disabilities, in circumstances where, had they been aware of the risk, they would have chosen to terminate their pregnancies. The central difficulty inherent in wrongful life actions has been the perception that, in order to establish liability at the suit of a disabled person who would not exist in the absence of the alleged negligence, a comparison would have to be made between that person’s current existence — a life with disabilities — and that of non-existence. In the view of the Court of Appeal in McKay v Essex Area Health Authorities,622 recently affirmed by the Australian High Court in Harriton v Stephens623 and subsequently reaffirmed in Waller v James,624 since such a comparison cannot be undertaken by the courts, no legally cognisable damage, which is the gist of the action in tort, can be established, in the sense of founding a duty of care. In arriving at its decision the High Court in Harriton canvassed a number of issues, including whether the common law should recognise the right of a foetus to be aborted, as distinct from the recognised right of a foetus not to be physically injured while en ventre sa mere;625 the differences between claims for wrongful birth and wrongful life;626 the difficulty of reconciling the imposition of a duty of care upon a doctor with the mother’s right to decline to have an abortion despite being informed of the risk of continuing with the pregnancy;627 and the impossibility, on the facts of the case, of assessing damages without having to resort to a ‘legal fiction’.628 [page 261]

Protection of volunteers 7.61 Legislation passed in each of the Australian jurisdictions during the first few years of the twenty-first century629 provides a particular form of protection from personal liability. A person voluntarily undertaking community work for a charitable, religious, educational or benevolent purpose for a community organisation does not incur any personal civil liability in respect of any act or omission done or made in good faith.

However, the legislation does not protect volunteers from civil liability for damage caused by their criminal conduct, nor if the volunteer’s ability to exercise reasonable care and skill was significantly impaired by alcohol or recreational drugs. Liability is also not excluded if the volunteer knew or ought to have known that the conduct was outside the scope of the activities coordinated by the community organisation, or if the liability were covered by the third party insurance required to be taken out by the owner of a motor vehicle. The liability which, apart from these provisions, would attach to the volunteer instead devolves upon the community organisation which has arranged for the relevant work to be done.

Liability for animals straying onto the highway 7.62 The rule at common law, known as the rule in Searle v Wallbank,630 states that owners631 of land abutting highways are under no prima facie legal duty to users of the highways to keep and maintain hedges, fences and gates along them so as to prevent their animals, not known to be dangerous, from straying onto the highways. The operation of this rule was affirmed by the High Court in State Government Insurance Commission v Trigwell.632 Since then legislation which abolishes the rule has been introduced in New Zealand633 and in all Australian jurisdictions apart from Queensland and the Northern Territory.634 It is not clear, however, at least in New South Wales, how the provisions of the legislation operate to achieve this effect. Describing the legislation as ‘cast in a very convoluted form’,635 Meagher JA in Brown v Toohey was nevertheless prepared to concede that the legislation had abolished the rule. Mahoney JA (with whom Priestley JA concurred) preferred the view636 that the Act operates to abrogate the Searle v Wallbank rule to the extent that failure to fence land adjoining a highway may, where there is a duty of care on [page 262]

the landowner, constitute a breach of that duty. The legislation does not establish, however, that there is invariably a duty to fence the land. This would depend upon what the reasonable person would have done by way of response to any risk.637 In Queensland the Searle v Wallbank rule has been held inapplicable to the situation in which the plaintiff’s palomino quarterhorse colt died as a result of injuries received after escaping onto a highway from the defendant’s enclosed yard. The Supreme Court of Queensland held638 that the defendant, an association which ran an agricultural show, was ‘not in the simple position of an occupier of land whose stock stray onto the highway’ and could not benefit by the immunity. In the circumstances, a duty of care was held to exist. _______________ 1.

For the history of the tort of negligence, see Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 LQR 184–201; (1934) 34 Columbia LR 41–66, reprinted Winfield, Select Legal Essays, 1952, pp 70–97.

2.

The main milestones were Vaughan v Menlove (1837) 3 Bing NC 468; 132 ER 490; Winterbottom v Wright (1842) 10 M & W 109; 152 ER 402; Heaven v Pender (1883) 11 QBD 503 (CA).

3.

A fortiori, the common law of tort has consistently rejected the idea of strict liability for unintentional injury: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 30; 63 ALR 513 at 521 per Mason J, at 42; 531 per Wilson and Dawson JJ.

4.

Or, as Gleeson CJ put it in Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [8], carelessness in this context involves a failure to conform to a legal obligation.

5.

Lochgelly Iron & Coal Co v M’Mullan [1934] AC 1 at 25 (HL).

6.

Thus, in Roe v Minister of Health [1954] 2 QB 66 at 85; 2 All ER 131 at 138 (CA) Denning LJ thought that the three questions were in many cases simply three different ways of looking at one and the same question, which is this: ‘Is the consequence fairly to be regarded as within the risk created by the negligence?’ An admission of negligence does not entitle the plaintiff to a verdict; he or she must still prove that the negligence was the cause of the damage: Rankine v Garton Sons & Co Ltd [1979] 2 All ER 1185 (CA).

7.

But this is not the way in which English or Australian judges approach these problems, and for that reason is not followed in this text.

8.

Wright, ‘The Law of Torts’ (1957) 4 Journal of the Society of Public Teachers of Law (NS) 32.

9.

Duties similar to these discussed here under common law negligence may also arise under statutes or contracts.

10.

See, eg, Roman Catholic Church, Diocese of Bathurst, Trustees of v Koffman (1996) Aust Torts Reports 81-399 at 63,589 (NSWCA).

11.

Heaven v Pender (1883) 11 QBD 503 at 507 per Brett MR (CA); Thomas v Quartermaine (1887) 18 QBD 685 at 694 per Bowen LJ (CA); Le Lievre v Gould [1893] 1 QB 491 at 497 per Lord

Esher MR (CA); Grant v Australian Knitting Mills Ltd [1936] AC 85 at 101 (PC); Bourhill v Young [1943] AC 92; [1942] 2 All ER 396 (HL); Vairy v Wyong SC (2005) 223 CLR 422; 221 ALR 711 at [22] per McHugh J. 12.

Buckland, ‘The Duty to Take Care’ (1935) 51 LQR 637 at 639.

13.

Per Windeyer J in Hargrave v Goldman (1963) 110 CLR 40 at 63. And at 64 see Windeyer J’s comments on the origins of the duty of care.

14.

Hargrave v Goldman (1963) 110 CLR 40 at 63 per Windeyer J.

15.

Per Hayne J in Brodie v Singleton Shire Council (2001) 206 CLR 512; 180 ALR 145 at [314]; Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [249]. Also Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301 at 303.

16.

See, eg, Thomas v Elder Smith Goldsbrough Mort Ltd (1982) 30 SASR 592 at 599.

17.

Roe v Minister of Health [1954] 2 QB 66; 2 All ER 131 (CA).

18.

Chester v Waverley Corporation (1939) 62 CLR 1 at 11 per Rich J. This assessment would doubtless hold true even today though the actual decision in this case on liability for nervous shock has since been overruled.

19.

Hahn v Conley (1971) 126 CLR 276 at 284 per Barwick CJ.

20.

(1883) 11 QBD 503 at 509.

21.

[1932] AC 562 at 580 (HL).

22.

Cf Haseldine v CA Daw & Son Ltd [1941] 2 KB 343 at 362; 3 All ER 156 at 174 per Scott LJ (CA).

23.

As to whether the mere relationship between retailer and consumer is sufficient to give rise to a duty of care, or whether some additional element is called for, see McPherson’s Ltd v Eaton [2005] NSWCA 435; Laws v GWS Machinery Pty Ltd [2007] NSWSC 316 at [101]ff.

24.

Per Meares J in Baar v Snowy Mountains Hydro-Electric Authority (1970) 92 WN (NSW) 472 at 476.

25.

[1964] AC 465 at 524–5; [1963] 2 All ER 575 at 607 (HL).

26.

Jaensch v Coffey (1984) 155 CLR 549 at 582; 54 ALR 417 at 442 per Deane J; Chester v Waverley Corporation (1939) 62 CLR 1 at 12 per Starke J.

27.

Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1424; Thomas v Gulf Oil Refining Ltd (1979) 123 Sol Jo 787 (oil company had no duty to avoid fissuring its rock strata and thereby depriving neighbouring plaintiff farmer of water in his ponds).

28.

[1932] AC 562 at 619.

29.

[1951] 2 KB 164 at 192; 1 All ER 426 at 441 (CA).

30.

(1968) 122 CLR 556 at 563.

31.

Ibid at 566.

32.

Ibid at 569.

33.

Carmarthenshire County Council v Lewis [1955] AC 549; 1 All ER 565 (HL) (a lorry struck a telegraph pole and the driver was killed); Barnes v Hampshire County Council [1969] 3 All ER 746 (HL) (local education authority liable for letting children out of school early before parents or others came to fetch them, when traffic accident ensued).

34.

Buckland v Guildford Gas Light and Coke Co [1949] 1 KB 410; [1948] 2 All ER 1086.

35.

Levine v Morris [1970] 1 All ER 144 (CA).

36.

Skyways Pty Ltd v Commonwealth (1984) 57 ALR 657.

37.

[1987] VR 281 at 287.

38.

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] 207 ALR; Gleeson CJ citing interference with the plaintiff’s privacy and freedom of action as militating against the creation of such a duty, at [14]–[15] but see strong dissent by McHugh J at [27ff] and Kirby J at [89ff].

39.

Voli v Inglewood Shire Council (1963) 110 CLR 74 at 86 per Windeyer J.

40.

Hargrave v Goldman (1963) 110 CLR 40 at 64 per Windeyer J.

41.

[1978] AC 728 at 751–2; [1977] 2 All ER 492 at 498 (HL).

42.

For example, Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 per Mason J; Junior Books Ltd v Veitchi Ltd [1983] 1 AC 520 at 545–7 per Lord Roskill; Scott Group Ltd v McFarlane [1978] 1 NZLR 553; Takaro Properties Ltd v Rowling [1978] 2 NZLR 314.

43.

[1985] AC 210 at 240–1; [1984] 3 All ER 529 at 534 (HL).

44.

(1985) 157 CLR 424 at 441 per Gibbs CJ.

45.

Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 at 815; 2 All ER 145 at 153 per Lord Brandon (HL). This limitation on the scope for further growth of duty situations must itself be regarded rather cautiously, as the case dealt with the vexed question of liability for economic loss, rather than with liability for physical damage. See further 13.44ff.

46.

(1984) 155 CLR 549 at 581; 54 ALR 417 at 441.

47.

But see Gibbs CJ in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 441 who held that Lord Wilberforce, as demonstrated by his later explanations in McLoughlin v O’Brian [1983] 1 AC 410 at 420, never intended to say that foreseeability alone is sufficient, even on a prima facie basis, to establish the existence of a duty of care.

48.

(1985) 157 CLR 424 at 497–8.

49.

Hawkins v Clayton (1988) 164 CLR 539 at 578; 78 ALR 69 at 97 per Deane J. See generally Mills, ‘Professional Negligence: the Expanding Liability of Lawyers’ (1992) Aus Bar Rev 1 at 16ff. And see Foti v Banque Nationale de Paris (1989) 54 SASR 354 on the banker–client relationship; see also Warwicker v Zadow (1989) Aust Torts Reports 80-276 (on the duty owed by a loss adjuster to the insured).

50.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 498; Jaensch v Coffey (1984) 155 CLR 549 at 579; 54 ALR 417 at 439 (HC).

51.

(1986) 162 CLR 376 at 381–2; 68 ALR 353 at 356.

52.

(1986) 162 CLR 340; 68 ALR 161. For a contrary view see Brennan J at 367–9; 178–80. McHugh, ‘Neighbourhood, Proximity and Reliance’ in Finn (ed), Essays on Torts, 1989, pp 39– 42 endorsed the Brennan approach.

53.

(1988) 164 CLR 539; 78 ALR 69. Brennan J on this occasion and ‘[i]n deference to majority judgments in this Court … [was] constrained to inquire whether “the requisite relationship of proximity” existed if that phrase defined a legal criterion of such precision that it answered the question whether … a duty of care exists’ (at 555; 80).

54.

(1991) 172 CLR 243; 100 ALR 29.

55.

(1994) 179 CLR 520 at 543; 120 ALR 42 at 56.

56.

(1995) 182 CLR 609 at 617–18; 128 ALR 163 at 165.

57.

(1997) 188 CLR 159; 142 ALR 687.

58.

Ibid at [16] per Dawson J.

59.

Ibid at [90] per Gummow J.

60.

Ibid at [57] per McHugh J. Similarly, Hawkins v Clayton (1988) 198 CLR 539 at 555–6; 78 ALR 69 at 79–80 per Brennan J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 at [96]–[97] per Hayne J.

61.

Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687 at [17] per Dawson J.

62.

(1998) 192 CLR 431; 151 ALR 263 at [63] per Gaudron J.

63.

(1999) 198 CLR 180; 164 ALR 606.

64.

Ibid at [75] per McHugh J.

65.

Ibid at [281] per Kirby J.

66.

Ibid at [75] per McHugh J.

67.

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [60] per Kirby J.

68.

Ibid.

69.

(2001) 207 CLR 562; 183 ALR 404 at [48].

70.

Particularly as part of the trio of factors formed by an inquiry into foreseeability, proximity and considerations of fairness, justice and reasonableness. See 7.13.

71.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481; 60 ALR 1 at 43.

72.

[1932] AC 562.

73.

This process was explained by Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 524–5. Even this test may be difficult to apply: see conflicting views of Maxwell P at [44] and Ormiston and Ashley JJ at [153] in Moorabool Shire Council v Taitapanui (2006) 14 VR 55 (CA).

74.

Jaensch v Coffey (1984) 155 CLR 549 at 575; 54 ALR 417 at 437.

75.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481; 60 ALR 1 at 43.

76.

Per Brennan J in Hawkins v Clayton (1988) 164 CLR 539 at 556; 78 ALR 69 at 80.

77.

In this regard Brennan J, in Hawkins v Clayton, above, noted that the court may have regard to a variety of considerations, including ‘the nature of the activity which causes the loss, the nature of the loss, the relationship between the parties and contemporary community standards (especially where liability for breach of the proposed duty would be disproportionate to the role which a person might reasonably be expected to bear as an incident of engaging in the particular activity if no limiting factor were identified)’.

78.

[1990] 2 AC 605; 1 All ER 568.

79.

[1991] 1 AC 398; [1990] 2 All ER 908.

80.

[1995] 2 AC 207; 1 All ER 691.

81.

[2007] 1 AC 181; [2006] 4 All ER 256 at [4]–[8] per Lord Bingham.

82.

Thomson v Scottish Ministers [2011] ScotCS CSOH 90 at [26].

83.

Manning, ‘Torts’ [1993] NZ Recent LR 84 at 85; a warning now duly heeded by the Privy Council: Downsview Nominees Ltd v First City Corp Ltd [1993] 1 NZLR 513 at 523. Previously, in Yuen Kun Yeu v A-G for Hong Kong [1988] AC 175 at 194; [1987] 2 All ER 705 at 712, Lord Keith had cautioned that the Anns test could not be regarded as a suitable guide in all circumstances. He did, however, apply the test in Spring v Guardian Assurance plc [1995] 2 AC 296 at 308; 3 All ER 129 at 136–7.

84.

See, eg, Caparo Industries plc v Dickman [1990] 2 AC 605; 1 All ER 568; Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211; [1995] 3 All ER 307 (HL).

85.

Per Lord Bridge in Caparo Industries plc v Dickman [1990] 2 AC 605 at 616–18; 1 All ER 568 at 572–4.

86.

The strongest proponent of this view being McHugh J in Perre v Apand (1999) 198 CLR 180; 164 ALR 606 at [93]ff but see also at [232] per Kirby J, at [333] per Hayne J and at [405] per Callinan J; in Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [7] Kirby J confirmed this approach to be ‘the usual way’ but noted, additionally, the need to ascertain the full facts of the case, at [35].

87.

(1999) 200 CLR 1; 167 ALR 1 at [73].

88.

This last point was also noted by Callinan J in Brodie v Singleton Shire Council (2001) 206 CLR 512; 180 ALR 145 at [317].

89.

Ibid at [316].

90.

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 at [96] per Kirby J. In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 at [211] he went so far as to describe the situation as a ‘fog’; while McHugh J in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [45] described the situation as ‘[C]onfusion approaching chaos has reigned’; and in Vairy v Wyong SC (2005) 223 CLR 422; 221 ALR 711 at [28], he classified judicial attempts to specify the content of a duty of care as ‘fruitless’.

91.

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 at [72] per McHugh J. See also Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687 at [14]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [99], [136]; Brodie v Singleton Shire Council (2001) 206 CLR 512; 180 ALR 145 at [318]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 at [99]; Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [249].

92.

Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 at [244]; Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR 263 at [117]; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 at [223]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [61]. It is clear, however, that Kirby J still hopes that the High Court will, in time, endorse the Caparo approach: Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 at [159]; Travel Compensation Fund v Tambree (2005) 224 CLR 627; 222 ALR 263 at [64].

93.

[1990] 2 AC 605; 1 All ER 568.

94.

X (Minors) v Bedfordshire County Council [1995] 2 AC 633; 3 All ER 353; Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211; [1995] 3 All ER 307; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 4 All ER 504; Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091; 4 All ER 987; Mitchell v Glasgow CC [2009] 1 AC 874; 3 All ER 205 at [21]ff per Lord Hope; Van Colle v Chief Constable of the Hertfordshire Police [2008]

2 All ER 489 at [42], where Lord Bingham described it as currently the most favoured test of liability; X(1) and (X)2 v London Borough of Hounslow [2009] EWCA Civ 286 at [54]. 95.

Bow Valley Husky (Bermuda) Ltd v St John Shipbuilding Ltd (1997) 153 DLR (4th) 385 (SCC).

96.

See, eg, criticism in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [77]ff per McHugh J; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [100] per Hayne J.

97.

(2002) 211 CLR 540; 196 ALR 337 at [232]ff.

98.

(2001) 207 CLR 562; 183 ALR 404 at [49].

99.

The House of Lords does not apparently share the concerns over policy: Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091; 4 All ER 987 at [105] per Lord Millett.

100. (1999) 198 CLR 180; 164 ALR 606 at [284]. 101. For example, Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [80]–[82] per McHugh J, who saw them as ‘criteria of last resort when more concrete reasons, rules or principles fail to provide a persuasive answer’. 102. (1976) 136 CLR 529 at 567. 103. See, eg, Wilson v New South Wales (2001) 53 NSWLR 407 at [36]; Godfrey v New South Wales (No 2) [2003] NSWSC 275 at [23]. 104. For example, per McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 at [73]. 105. Lord Oliver in Caparo Industries plc v Dickman [1990] 2 AC 605 at 632–3; 1 All ER 568 at 585, as cited by Gleeson CJ in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [9]. 106. See McHugh J in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [88]ff. 107. See fn 93 above. 108. For example, Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 All ER 506; White v Jones [1995] 2 AC 207; 1 All ER 691; Outram v Academy Plastics Ltd [2001] ICR 367 (Eng CA). 109. Outram v Academy Plastics Ltd [2001] ICR 367 (Eng CA). 110. Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No 2) [1998] PNLR 564 at 583ff per Sir Brian Neill. 111. Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266; [2001] 3 All ER 97 at [17] per Brooke LJ. 112. (2002) 211 CLR 540; 194 ALR 337 at [99]. 113. Ibid at [242]–[243]. 114. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [8], [9]. 115. Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 at [51], [86]; this is also implicit in the comments of Hayne J at [101]. Most recently, Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 at [53] per French CJ, Gummow, Hayne, Crennan and Bell JJ. 116. See, eg, Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 at [88]. 117. (2009) 75 NSWLR 649 (CA) at [104]. Applied in Reeves v New South Wales [2010] NSWSC

611 at [344]. See too, per Basten JA in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 259 ALR 616 at [160] who noted that the multi-factorial approach requires a consideration of a ‘congeries of disparate elements, some of which are entirely factual in nature, others of which require value judgment and others an infusion of legal policy’. See, too, Lowes v Amaca Pty Ltd [2011] WASC 287 at [327], [342]. 118. [1992] 2 NZLR 282 at 306, 316. 119. Ibid at 306 per Richardson J. And see Williams v Attorney-General [1990] 1 NZLR 646 at 656; Mainguard Packaging Ltd v Hilton Haulage Ltd [1990] 1 NZLR 360 at 371 per Tipping J; AG v Body Corporate 200200 [2007] 1 NZLR 95 at [36]. 120. Brown v Heathcote County Council [1986] 1 NZLR 76 at 79. As stated by Wolff J in Waipa DC v Widdowson [2007] DCR 33 at [32], New Zealand courts have been ‘less doctrinaire about a “two step approach” but have reached the same philosophical conclusion in a more flexible way’. 121. Attorney-General v Prince [1998] 1 NZLR 262 at 268, 291 (CA); Price Waterhouse v Kwan [2000] 3 NZLR 39 at [6] (CA); RM Turton & Co Ltd v Kerslake & Partners [2000] 3 NZLR 406 at [8] (CA); Johnson & Johnson v Watson [2002] NZCA 313 at [12]; New Zealand Meat Board v Meat Industry Association of NZ [2002] NZCA 266 at [81] (CA); Attorney-General v Wright [2003] NZCA 48 at [30]; Bank of NZ v Deloitte Touche Tohmatsu [2007] 1 NZLR 663 at [116ff]; Three Meade Street Ltd v Rotorua DC [2005] 1 NZLR 504; Rolls-Royce NZ Ltd v Carter Holt Ltd [2005] 1 NZLR 324 at [21]; Hobson v AG [2007] 1 NZLR 374 at [30]; Altimarloch Joint Venture Ltd v Moorhouse BLE Civ-2005-406-000091, 3 July 2008 at [122]ff. But the argument for abandoning proximity, at least in nervous shock cases, was made in Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [108] (CA). 122. See, eg, Kavanagh v Continental Shelf Co (No 46) Ltd [1993] 2 NZLR 648 at 652 per Hardie Boys J (no new duty where adequate remedies exist in contract or equity); G v Attorney-General [1994] 1 NZLR 714 at 720 per Heron J (no new duty if adequate remedy already available or if new duty would cut across established patterns of law in special fields). In Balfour v AttorneyGeneral [1991] 1 NZLR 519 at 529 the court held that, irrespective of whether the Brennan test or the Wilberforce test was accepted and assuming that the necessary proximity existed, the question was whether a particular duty ought to be recognised. 123. South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd [1992] 2 NZLR 282 at 295 per Cooke P; Connell v Odlum [1993] 2 NZLR 257 at 259 per Cooke P; First City Corporation Ltd v Downsview Nominees Ltd [1990] 3 NZLR 265 at 275. 124. [2008] 3 NZLR 725 at [48], [52], [78]ff. 125. Ibid at [53]. 126. Bottomley v Bannister [1932] 1 KB 458 at 476 per Greer LJ. 127. [1893] 1 QB 491 at 497. 128. In Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 at [67], the High Court described this as a basic rule of the law of negligence. 129. Smith v London & South Western Ry Co (1870) LR 6 CP 14. 130. (1928) 248 NY 339. 131. [1943] AC 92; [1942] 2 All ER 396. 132. For example, King v Phillips [1953] 1 QB 429; 1 All ER 617 (CA); Roe v Minister of Health [1954] 2 QB 66; 2 All ER 131 (CA).

133. [1961] AC 388 at 425; 1 All ER 404 at 415. 134. (1974) 132 CLR 97. 135. Ibid at 100. See also Levi v Colgate Palmolive Pty Ltd (1941) 41 SR (NSW) 48. The plaintiff, who suffered an abnormal reaction to ordinary bath salts, was held to have no cause of action against the manufacturer. 136. It was on this basis that Dell’Oro was distinguished in Bus v Sydney County Council (1989) 167 CLR 78; 85 ALR 577; in Bus the presence of the electrician close to the exposed terminals was to be expected, hence a duty of care was owed to him (at 584). 137. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [66] per Kirby J. 138. [1972] VR 353. 139. Ibid at 359. 140. [1932] AC 562; see also Australian Knitting Mills Ltd v Grant [1936] AC 85. 141. B v Islington Health Authority [1991] 1 QB 638 at 647–8; 1 All ER 825 at 831 per Potts J. Also, X v Pal (1991) 23 NSWLR 26 at 37ff per Clarke JA (CA). 142. Lynch v Lynch (1991) 25 NSWLR 411; Bowditch v McEwan (2002) 36 MVR 235 (Qld CA). 143. Bowditch v McEwan (2002) 36 MVR 235; cf the rejection of this approach by the Supreme Court of Canada in Dobson v Dobson (1999) 174 DLR (4th) 1. 144. Another factor influencing the decision was the availability of insurance. 145. Watt v Rama [1972] VR 353 at 360 (FC). 146. B v Islington Health Authority [1991] 1 QB 638 at 644; 1 All ER 825 at 829. Also, de Martell v Merton and Sutton Health Authority [1992] 3 All ER 820 at 830–2 per Phillips J, who described the events prior to birth as ‘mere links in the chain of causation’ between the Health Authority’s lack of care and the consequential damage to the plaintiff. Both judgments were upheld by the Court of Appeal in Burton v Islington Health Authority [1993] QB 204; [1992] 3 All ER 833. See also Rance v Mid-Downs Health Authority [1991] 1 QB 587 at 619; 1 All ER 801 at 816. 147. In England the Congenital Disabilities (Civil Liability) Act 1976 applies but cases involving children born before the Act are left to the common law. 148. See, eg, Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443, 479 and 502; Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 at [101], [102] per McHugh J, referring to the ‘strong political, moral and economic arguments’ put forward by Lord Hoffmann in Stovin v Wise [1996] AC 923 at 943–4; 3 All ER 801 at 819 to justify this position; as stated by Callinan J in Commissioner of Main Roads v Jones (2005) 215 ALR 418 at [76], absent a special relationship a court will be less likely to find a defendant who has not created the danger liable for it. 149. Bohlen, Studies in the Law of Torts, 1926, pp 291–3. 150. This was made plain by the High Court in Sutherland Shire Council v Heyman (1985) 157 CLR 424. See, eg, Gibbs CJ at 443. 151. Smith and Burns, ‘Donoghue v Stevenson — the Not So Golden Anniversary’ (1983) 46 MLR 147 at 156. 152. For an example of such an exercise see McKinnon v Burtatowski [1969] VR 899. 153. The decision to impose liability on a doctor who failed to attend a stranger in an emergency situation in Woods v Lowns (1995) 36 NSWLR 344 (upheld by a majority in Lowns v Woods

(1996) Aust Torts Reports 81-376 (NSWCA)) relied heavily upon the now discredited notion of proximity. The traditional common law position as stated ((1995) 36 NSWLR 344 at 354) is preferable, ie, that a doctor is not obliged to attend upon a person who is not a patient, even in an emergency. As stressed by Mahoney JA (on appeal, dissenting) moral or professional obligations should not be confused with legal obligations. 154. (1985) 157 CLR 424 at 502. 155. Ibid at 478. And see Windeyer J in Hargrave v Goldman (1963) 110 CLR 40 at 66, who noted that ‘the dictates of charity and of compassion do not constitute a duty of care’. 156. Johns Period Furniture Pty Ltd v Commonwealth Savings Bank of Australia (1980) 24 SASR 224 at 227; Zoernsch v Waldock [1964] 1 WLR 675 at 678. 157. Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [30] per French CJ and Gummow J. 158. Parker v SA Housing Trust (1986) 41 SASR 493 at 513 per King CJ (FC). 159. Ashrafi Persian Trading Co Pty Ltd v Ashrafina (2001) Aust Torts Reports 81-636 at [63] (NSWCA). 160. McKinnon v Burtatowski [1969] VR 899 at 906, citing Ormerod LJ in Johnson v Rea Ltd [1961] 1 WLR 1400 at 1409; 3 All ER 816 at 819. In this latter case the defendant stevedores (without lack of due care) dropped soda ash on to a surface over which they subsequently invited the plaintiff to pass. Held: they had a duty to take care that the surface was safe, and their failure to remove the ash was actionable — this may also be regarded as an omission in the course of the performance of their operation of unloading the bags of soda ash. 161. Per Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479; 60 ALR 1 at 42. Cf Gaudron J in Hawkins v Clayton (1988) 164 CLR 539 at 596; 78 ALR 69 at 110, who would prefer to identify the relevant feature in terms of reasonable expectation rather than reliance. 162. (1988) 164 CLR 539 at 553; 78 ALR 69 at 78. 163. See Parker v SA Housing Trust (1986) 41 SASR 493 at 514. Cf the approach when the plaintiff’s loss is purely economic, discussed in 13.12–13.13. As to whether bookmakers or banks may owe a duty of care to customers known or suspected of being compulsive gamblers, see Calvert v William Hill Credit Ltd [2008] EWCA Civ 1427; Politarhis v Westpac Banking Corp [2009] SASC 96. 164. Thomas v Elder Smith Goldsbrough Mort Ltd (1982) 30 SASR 593 at 596 per Jacobs J. 165. Nocton v Lord Ashburton [1914] AC 932; Hawkins v Clayton (1988) 164 CLR 539 at 579; 78 ALR 69 at 98 per Deane J on solicitor–client relationship. The solicitor’s duty may extend to the client’s trustee in bankruptcy: Blackwell v Barroile Pty Ltd (1994) 123 ALR 81 (FC). But in Fletcher v National Mutual Life Nominees Ltd [1990] 1 NZLR 97 at 105, a trustee’s liability to depositors rested solely on the express provisions of the trust deed and not on any duty of care in tort. Cf Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412; 107 ALR 617 at 618 where the High Court held that a common law duty of care might arise independently of a fiduciary duty. 166. New South Wales v Fahy (2007) 236 ALR 406 (HCA) at [4]. In Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12]–[13], the High Court reiterated an employer’s obligation to devise and implement a safe system of work in cases where there is a real risk of injury. 167. Hargrave v Goldman (1963) 110 CLR 40, doubting Havelburg v Brown [1905] SALR 1.

168. For example, Geyer v Downs (1977) 138 CLR 91. 169. For example, Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; Parkin v ACT Schools Authority [2005] ACTSC 3. In Watson v Haines (1987) Aust Tort Reports 80-094, the state government and the individual teacher were held liable for failing to ensure that reasonable care was taken for the safety of boys with long thin necks playing in school football, resulting in a pupil sustaining severe injury while playing hooker in a scrum; Green v Country Rugby Football League of NSW Inc [2008] NSWCA 26 at [93]; cf Agar v Hyde (2000) 201 CLR 552; 173 ALR 665, in which the International Rugby Football Board was held not to owe a duty of care to individual players to prevent this type of injury. 170. Since this duty stems from a well-recognised existing relationship it cannot simply be extended to other situations in which persons exercise control over potentially dangerous activities involving children, as was sought to be done in Hornberg v Horrobin [1997] QSC 207. 171. As to whether this duty extends to providing appropriate educational services especially to students with specific educational needs, see Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 4 All ER 504. The Court in Woodland v Essex County Council [2012] EWCA Civ 239 at [56], [81]–[82] held that it would not be fair, just or reasonable to elevate this duty into a non-delegable duty of care. 172. Richards v State of Victoria [1969] VR 136 at 138, 141; Harvey v Pennell (1986) 43 SASR 221 at 229; reiterated by the Full Court in (1987) 46 SASR 158 at 181 sub nom H v Pennell. In Kretschmar v State of Queensland (1989) Aust Torts Reports 80-272 the point was made that, where the physical or intellectual capacity of the child is such as to enlarge the risk, the school or supervising teacher must take appropriate precautions: at 68,894 per Derrington J (Qld SC). 173. Cf Warren v Haines (1986) Aust Torts Reports 80-014 at 67,633 per Carruthers J. 174. Geyer v Downs (1977) 138 CLR 91; Roman Catholic Church, Diocese of Bathurst, Trustees of v Koffman (1996) Aust Torts Reports 81-399 (NSWCA); Kearn-Price v Kent County Council [2002] EWCA Civ 1539. 175. Richards v State of Victoria [1969] VR 136 at 140; Warren v Haines (1986) Aust Torts Reports 80-014 at 67,633. 176. In Geyer v Downs (1977) 138 CLR 91, the allegation was one of failure to exercise proper supervision of the playground before commencement of classes. In Commonwealth v Introvigne (1982) 150 CLR 258 at 275; 41 ALR 577 at 603, Murphy J held that the plaintiff’s injuries were due to the inadequate system of supervision, which failed to provide for sufficient staff to exercise proper supervision over the children in the playground as well as a failure to ensure that the system was carried out. In Shaw v Commonwealth of Australia (1992) 110 FLR 379 injury occurred through failure of teachers to supervise the use of a trampoline. 177. [1969] VR 136 at 138–9. 178. (2003) 212 CLR 511; 195 ALR 412. 179. As to what extent schools are likely to be held liable for ‘cyber bullying’, see Campbell, Butler and Kift, ‘A School’s Duty to Provide a Safe Learning Environment: Does this Include Cyberbullying?’ (2008) 13 Australia & New Zealand J of Law and Education 21. 180. Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] 2 All ER 769. See also O’Keeffe v Hickey [2008] IESC 72. 181. Bazley v Curry (1999) 174 DLR (4th) 45; Jacobi v Griffiths (1999) 174 DLR (4th) 71. 182. Commonwealth v Introvigne (1982) 150 CLR 258 at 269–73; Leichhardt Municipal Council v

Montgomery (2007) 230 CLR 22; 233 ALR 200 at [110]. 183. Richards v State of Victoria [1969] VR 136 at 138, 141; State of Victoria v Subramanian [2008] VSC 9 at [10]. 184. Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 893; 1 All ER 643 at 657 per Lord Diplock. 185. For example, F v R (1983) 33 SASR 189; Gold v Haringey Health Authority [1988] QB 481; [1987] 2 All ER 888. 186. Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625. This has been described as a ‘wellestablished principle’: Elbourne v Gibbs [2006] NSWCA 127 at [54] per Basten JA. 187. In Ross v Caunters [1980] Ch 297, eg, a solicitor was held liable for failing to warn a client that a will ought not to be witnessed by the spouse of the beneficiary: see further 13.22ff. 188. See, eg, L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385, and the discussion in 13.33ff. 189. (1996) 186 CLR 71 at 83; 138 ALR 259 at 266 per Brennan CJ. 190. Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 890; 1 All ER 643 at 655 per Lord Diplock. 191. Powell v Boldaz [1997] EWCA Civ 2002. 192. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 752; 3 All ER 353 at 383 but cf Thomsen v Davison [1975] Qd R 93 (regimental medical officer examining soldiers for army purposes held to owe a duty of care to soldiers). 193. (1971) 126 CLR 276 at 283: see further 24.15. A grandfather’s liability was in issue here. 194. [1966] NZLR 710 at 721 per North P. The court cited Smith v Leurs (1945) 70 CLR 256 at 259, where Latham CJ gives as an example a baby of two years playing with another baby and being allowed to have a knife or a box of matches. 195. For example, Muller v Lalic [2000] NSWCA 50 (father’s liability was based not on lack of supervision but on his failure to safely store loaded rifle); see also discussion in 7.28. 196. As happened in Cameron v Commr for Railways [1964] Qd R 480 and Collett v Hutchins [1964] Qd R 495. 197. See, eg, Robertson v Swincer (1989) 52 SASR 356 at 361 per King CJ (FC). 198. See Lynch v Lynch (1991) 25 NSWLR 411 at 415; Bowditch v McEwan (2002) 36 MVR 235 (Qld CA) (both obiter). 199. And see Rogers v Rawlings [1969] Qd R 262 at 273 per Hart J. 200. But see Barrett v Enfield London BC [2001] 2 AC 550; [1999] 3 All ER 193; Phelps v London Borough of Hillingdon [2001] 2 AC 619; [2000] 4 All ER 504 for a different view of the liability of those in loco parentis. 201. In Williams v The Minister, Aboriginal Lands Rights Act 1983 [1999] NSWSC 843 at [103] it was held that, a fortiori, it would be illogical to impose a legal duty of care on a non-biological carer in circumstances where a natural parent cannot be sued. 202. [2008] 3 NZLR 289 at [114] to [119], upholding the decision of the High Court in [2007] 1 NZLR 536 at [451] to [452]. Cf differing views in Fitzgerald v Hill [2008] QCA 283 at [76], [83].

203. Howard v Jarvis (1958) 98 CLR 177 at 183. 204. Quinn v Hill [1957] VR 439 at 444 (FC). 205. Ibid. 206. Hall v Whatmore [1961] VR 225 at 232 (FC). 207. Oliviera v New South Wales (SC(NSW), Spender AJ, 3 July 1995, BC9505034, unreported); State of NSW v Napier [2002] NSWCA 402; New South Wales v Zerafa [2005] NSWCA 187. 208. New South Wales v Bujdoso (2005) 227 CLR 1; 222 ALR 663 at [47]. 209. L v Commonwealth (1976) 10 ALR 269. 210. Howard v Jarvis (1958) 98 CLR 177. 211. Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283; 3 All ER 246 (CA); Metropolitan Police Commr v Reeves [2000] 1 AC 360; [1999] 3 All ER 897. 212. Metropolitan Police Commr v Reeves [2000] 1 AC 360 at 368–9; [1999] 3 All ER 897 at 902–3 per Lord Hoffmann. 213. Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 at [87] per Gummow, Hayne and Heydon JJ. 214. [2002] QB 347; the point was made, at [42], that this level of control would entail too stringent an obligation on the police and also an imposition on the prisoner. As to whether a duty of care is owed to parolees, see Hobson v AG [2007] 1 NZLR 374. 215. The recent Irish Law Reform Commission report on Civil Liability of Good Samaritans and Volunteers (LRC 93-2009) recommended no reform of this general rule, not even in circumstances of ‘easy rescue’: 2.82, 2.89. 216. (1971) 22 DLR (3d) 545 (SCC). 217. Per Windeyer J in Hargrave v Goldman (1963) 110 CLR 40 at 66; in lacking a general duty to rescue, the common law differs sharply from civil law: Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 at [88]. Foreseeability of injury or even death of the person imperilled is not sufficient to create the duty: Lowns v Woods (1996) Aust Torts Reports 81-376 (NSWCA). 218. As, eg, where a negligent motorist fails to pull the victim to the relative safety of the kerb, leaving the victim lying in the road to be subsequently run over and killed by another car. 219. (1971) 22 DLR (3d) 545 (SCC). 220. Alexandrou v Oxford [1993] 4 All ER 328 (CA); Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550. 221. Hill v Chief Constable of West Yorkshire [1989] 1 AC 53; [1988] 2 All ER 238; Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550; Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700 at [39]; K v Home Secretary [2002] EWCA Civ 775 at [22]. 222. Capital & Counties plc v Hampshire County Council [1997] QB 1004; 2 All ER 865 (CA); Kent v Griffiths [2001] QB 36; [2000] 2 All ER 474 (CA) at [18], [19]. 223. Especially if that person’s help is sought: Cook v R&M Reurich Holding Pty Ltd [2004] NSWCA 268. 224. As happened in Cutler v United Dairies (London) Ltd [1933] 2 KB 297. 225. The leading English case is Haynes v Harwood [1935] 1 KB 146 (CA).

226. The history of the action is admirably traced in Russell v McCabe [1962] NZLR 392. For an early view on rescue see Evatt J in his dissenting opinion in Chester v Waverley Corporation (1939) 62 CLR 1 at 41 and Baker v TE Hopkins & Son Ltd [1958] 3 All ER 147 (CA) (damages awarded on behalf of a doctor-rescuer). 227. (1921) 232 NY Rep 176 at 180. 228. Chadwick v British Transport Commn [1967] 2 All ER 945; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; White v Chief Constable of South Yorkshire [1999] 2 AC 455; 1 All ER 1. 229. Malcolm v Dickson 1951 SC 542 at 548, 552. 230. Steel v Glasgow Iron and Steel Co Ltd 1944 SC 237. 231. [1963] 2 QB 650; 2 All ER 860 (CA). 232. See further 7.37. 233. [1935] 1 KB 146. But see the qualification by Maugham LJ at 164. 234. (1961) 106 CLR 112. Similarly, McCabe v Russell [1961] NZLR 385. 235. But cf Eaton v Pitman (1991) 55 SASR 386 (FC) where Legoe J at 393–4 attributed the rescuer’s action and hence her injury to the fact that she was a nurse. 236. For example, Krauth v Geller (1960) 157 A 2d 129; Walters v Sloan (1977) 571 P 2d 609 (but see dissenting judgment of Tobriner ACJ). 237. [1988] AC 431 at 449; [1987] 3 All ER 961 at 966 per Lord Bridge; the decision in Ogwo is equally applicable in the case of a claim for psychiatric injury: White v Chief Constable of South Yorkshire [1999] 2 AC 455; 1 All ER 1 per Lord Griffiths. 238. For a discussion of the ‘firefighter’s rule’ and its policy implications, see Jones, ‘Compensating Professional Rescuers’ (1988) 104 LQR 195. 239. For such an act would have the effect of breaking the chain of causation between the original negligence and the injury. 240. [1988] AC 431 at 447; [1987] 3 All ER 961 at 965. 241. Similarly, Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264 at 1272 per Woolf J. Equally, in Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 (CA) at [50] the court did not accept that considerations of policy should preclude recovery by police officers who can establish negligence simply because they are injured in the line of duty. 242. [1988] 1 AC 431 at 447; [1987] 3 All ER 961 at 965. 243. (1935) 79 SJ 777. 244. McFarlane v EE Caledonia Ltd [1994] 2 All ER 1(CA). 245. Per North J in Russell v McCabe [1962] NZLR 392 at 400. In assessing this the court will take into account the exigencies of the situation: Ward v Hopkins [1959] 3 All ER 225 at 244. 246. Harrison v British Railways Board [1981] 3 All ER 679. The rescuer’s award of damages was reduced because of his contributory negligence. 247. The various bases of liability of those persons supervising sporting activities are discussed by Kelly, ‘Prospective Liabilities of Sports Supervisors’ (1989) 63 ALJ 669. 248. Smith v Leurs (1945) 70 CLR 256 at 262 per Dixon J. 249. For example, Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479; 60 ALR 1 at 42

per Brennan J, at 502; 58–9 per Deane J. As to the possibility that criminal conduct might be attended by such a high degree of foreseeability and predictability as to attract a duty even in the absence of a special relationship, see per Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [34] that this is difficult to reconcile with the general rule; cf per Hayne J at [116], Callinan J at [142]; WD & HO Wills v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 359 per Mason P. 250. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 478; 60 ALR 1 at 42 per Brennan J. 251. So in Bohdal v Streets [1984] Tas R 82 a person who left an unlocked motor car parked on a private driveway in circumstances where it was foreseeable, though not probable, that a third party might interfere with it, was held not liable for damage caused to a neighbour as a result of wrongful interference with the car by a third party. Similarly, shareholders who appoint directors owe no duty to creditors to take care that the directors discharge their duties with due diligence: Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 513 at 532 (PC). 252. Smith v Leurs (1945) 70 CLR 256 at 259 per Latham CJ, followed in McCallion v Dodd [1966] NZLR 710 at 721. 253. Smith v Leurs (1945) 70 CLR 256 at 262 per Dixon J. 254. Ibid. Cf Curmi v McLennan [1994] 1 VR 513. 255. (1945) 70 CLR 256 at 261. 256. [1955] AC 549; 1 All ER 565. And see Collett v Hutchins [1964] Qd R 495 at 501. 257. See Glass JA in Geyer v Downs [1975] 2 NSWLR 835 at 845. For a review of the authorities on the extent of a school’s duty to supervise, see Heffey, ‘The Duty of Schools and Teachers to Protect Pupils from Injury’ (1985) 11 Monash ULR 1. 258. In Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; 216 ALR 415, it was considered relevant that the children in question had not created any disciplinary problems in the past, nor had they shown any tendency to behave badly: at [6]; cf in Cox v New South Wales (2007) 71 NSWLR 225 the school had actual and repeated notice of the bullying behaviour of certain pupils: at [85]. 259. Per Murphy and Aickin JJ in Geyer v Downs (1977) 138 CLR 91 at 102; 17 ALR 408 at 417–18; see also Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba [2005] 216 ALR 415. 260. H v Pennell (1987) 46 SASR 158 at 166 per White J, who lists these as including age group, time of day, place, nature of the activity. 261. In Commonwealth v Introvigne (1982) 150 CLR 258 at 265; 41 ALR 577 at 583, Mason J held that a 15-year-old boy need not be kept under constant supervision. Similarly, in Barker v South Australia (1978) 19 SASR 83 at 87, a teacher’s short absence from a classroom of 12-year-old girls did not constitute a breach of duty. But cf Warren v Haines (1986) Aust Torts Reports 80014 where a school was held liable for failing to control a 15-year-old school bully. 262. [1989] 1 AC 53 at 63–4; [1988] 2 All ER 238 at 243–4 per Lord Keith. Applied in Ancell v McDermott [1993] 4 All ER 355 at 366; Alexandrou v Oxford [1993] 4 All ER 328; Cowan v Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699; Brooks v Metropolitan Police Commissioner [2005] 2 All ER 489. In Hughes v National Union of Mineworkers [1991] 4 All ER 278 public policy precluded a duty being owed by senior police to junior officers injured by rioters. Similar public policy considerations were alluded to in Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC 225; [2008] 3 All ER 977; Desmond v Chief Constable of Nottinghamshire Police [2009] EWHC 2362 (QB).

263. Similarly, policy considerations militate against holding the police responsible towards a person under investigation: Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [231] per Gummow and Kirby JJ; [125]–[126] per McHugh J and [298] per Hayne J. As to the considerations to be taken into account in deciding whether the police owe a duty of care to informers, see Informer v Chief Constable [2012] EWCA Civ 197. 264. See also D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at [101] per McHugh J. This is not to deny the common law duty that police officers owe to the general public to enforce the criminal law, which may be enforced by mandamus at the instance of one having title to sue: R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118; 1 All ER 763 (CA). 265. [1970] AC 1004; 2 All ER 294. 266. Ibid at 1070–1; 334. 267. Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550 at 558 per May LJ; see discussion in Peat v Lin [2005] 1 Qd R 40. See also ACT v Crowley [2012] ACTCA 52 at [285]ff. 268. Dorset Yacht at 1071; 334–5. Cf Alexandrou v Oxford [1993] 4 All ER 328 at 338 (CA) (owners of a shop fitted with an alarm that rang at police station when activated were owed no different duty of care from that owed to any member of the public informing police of a suspected crime). 269. This fact may also help to explain why in Osman v Ferguson [1993] 4 All ER 344 at 350ff, although the CA conceded that a special relationship arguably existed, it nevertheless held that, for reasons of policy, the police should not be held liable for failure to apprehend and thereby prevent a criminal from later injuring his or her victim. 270. This need to establish that the victim belonged to a class of persons ‘at special risk’ was emphasised in Couch v Attorney-General [2008] 3 NZLR 725 at [114]ff. 271. (1994) 62 SASR 532; see also Swinney v Chief Constable of Northumbria Police Force [1997] QB 465 [1996] 3 All ER 449 (CA) (duty owed by police to protect informant from reprisal); State of NSW v Godfrey & Godfrey [2004] NSWCA 113. And see Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 at [162–4]. 272. [2005] SASC 150 at [183ff]. Taking its lead from recent High Court decisions, the role of proximity was clearly downgraded as just one factor of many in the assessment. 273. As to what these reasonable steps might be, see New South Wales v Bujdoso (2005) 227 CLR 1; 222 ALR 663 at [51]. 274. L v Commonwealth (1976) 10 ALR 269 (NTSC); AshrafiPersian Trading Co Pty Ltd v Ashrafina (2001) Aust Torts Reports 81-636 (NSWCA) at [64] per Heydon JA. 275. Costello v Chief Constable of Northumbria Police [1999] 1 All ER 550 at 553 per May LJ (CA). 276. This duty is not limited to prison officers but extends to all in charge of dangerous persons: in Holgate v Lancashire Hospital [1937] 4 All ER 19, it extended to a mental hospital holding a lunatic with a history of sexual crime. 277. In Thorne v Western Australia [1964] WAR 147, plaintiff (prisoner’s estranged wife) failed to prove that jailer and warden had the necessary knowledge, but Negus J was prepared to assume that, had they been aware not just of threats to get out and ‘fix’ her but also of sufficient of the prisoner’s background as would indicate a need to take the threats seriously, they would have owed the wife a duty to take reasonable care to prevent his escape. 278. But see Godfrey v New South Wales (2003) Aust Torts Reports 81-700 (NSW SC).

279. (2000) 205 CLR 254; 176 ALR 411 at [26] per Gleeson CJ. 280. For example, Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355. See 26.53–26.55. 281. For example, Collingwood Hotel Pty Ltd v O’Reilly [2007] NSWCA 155 and cases cited at [21]. The duty appears limited to attacks occurring on the premises: Modbury, above, at [36]; Portelli v Tabriska Pty Ltd [2007] NSWSC 1256 at [54]. Absent exceptional circumstances, the hotelier’s duty does not extend to taking reasonable care to protect patrons against the risk of physical injury resulting from the over-consumption of alcohol, see Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606; followed in Flanagan v Houlihan [2011] IEHC 105 at 9.1. 282. See also AshrafiPersian Trading Co Pty Ltd v Ashrafina (2001) Aust Torts Reports 81-636 (NSWCA); Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 (CA); Gordon v Tamworth Jockey Club [2003] NSWCA 82. 283. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [145] per Callinan J. 284. Mitchell v Glasgow City Council [2009] 1 AC 874; 3 All ER 205 at [41]. 285. Ibid at [17]ff per Gleeson CJ and at [107]ff per Hayne J; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 (CA) distinguished Anzil on this basis. 286. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [25]–[26] per French CJ, Gummow, Hayne, Heydon and Crennan JJ. 287. And on this basis distinguishable from Modbury v Anzil (2000) 205 CLR 254 at [23]. 288. See discussion in 7.37ff; Faucett v St George Bank Ltd (2003) Aust Torts Reports 81-699 (NSWSC). 289. For an early exposition of this principle see Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455–6 per Blackburn J. 290. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220. See also Great Central Railway v Hewlett [1916] 2 AC 511; Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 at [177]; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 at [62] per McHugh J. At [61] he noted that often a duty of care will be held to exist where the facts fall within certain established categories of relationship, such as employer–employee. 291. Benning v Wong (1969) 122 CLR 249 at 256 per Barwick CJ; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 484; 60 ALR 1 at 46 per Brennan J; Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 at 537ff; 1 All ER 1159 at 1171ff. 292. (1985) 157 CLR 424 at 457–8; 60 ALR 1 at 27. 293. Ibid at 456. 294. City of Kamloops v Neilsen (1984) 10 DLR (4th) 641 at 655 per McIntyre J (Sup Ct Can). 295. Weeks, ‘Private Law Litigation Against the Government: Are Public Authorities and Private Actors Really “the Same”?’ (2010) UNSWLRS 68 argues that government and private actors can never truly be the same. 296. A useful discussion of the differing approaches of the English and Australian courts in this regard is found in Gleeson, ‘Liability of Public Authorities’ (1987) 6 Australian Construction Law Reporter 5.

297. (1985) 157 CLR 424; 60 ALR 1. 298. Gibbs CJ and Wilson J were the minority judges who agreed, in the main, with the analysis of the House of Lords in Anns v Merton London Borough Council [1978] AC 728; [1979] 2 All ER 492. 299. [1978] AC 728; 2 All ER 492 (HL). 300. See generally Review of the Law of Negligence, Final Report (September 2002), and, in relation to the liability of statutory authorities, Chapter 10, pp 151–64. 301. Civil Law (Wrongs) Act 2002 (ACT) s 110; Civil Liability Act 2002 (NSW) s 42; Civil Liability Act 2003 (Qld) s 35; Civil Liability Act 2002 (Tas) s 38; Wrongs Act 1958 (Vic) s 83; Civil Liability Act 2002 (WA) s 5W. 302. (1953) 346 US 15 at 42; 97 L Ed 1427 at 1444. A helpful comparative analysis is to be found in Aronson and Whitmore, Public Torts and Contracts, 1982, Ch 2. 303. Should the court have included in the immunity the failure to carry warning labels on the fertiliser bags? Was that not rather an operational decision? Likewise, was it correct to regard all decisions stemming from the Cabinet decision as planning decisions? 304. Also referred to as ‘policy’ or ‘discretionary’ decisions. In Walker v Northumberland County Council [1995] 1 All ER 737 at 759 Colman J held that the policy/operational decision dichotomy has no part to play in the context of the duty of care to an employee with whom the statutory body has a contract of employment. 305. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469; 60 ALR 1 at 34–5 per Mason J. 306. [1941] AC 74 at 106–7. 307. [1940] 1 KB 319 at 338; similarly, Lord Diplock in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1067–8. 308. Per Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469; 60 ALR 1 at 35. 309. Cf McGechan J in Gregory v Rangitikei District Council [1995] 2 NZLR 208 at 229, who noted ‘a greater potential readiness to find duty of care in operational situations, but duty by no means automatically follows’. 310. Acknowledging this, Lord Browne-Wilkinson in Barrett v London Borough of Enfield [2001] 2 AC 550; [1999] 3 All ER 193 (HL) noted that where there is substantial doubt as to whether a matter is operational there must equally be doubt as to the nature or extent of the damage capable of being caused by negligence in making such a decision. 311. (1976) 10 ALR 269. In Sasin v Commonwealth (1984) 52 ALR 299 it was held that decisions by the Director-General of Civil Aviation as to what types of equipment to approve and as to what steps to take when doubts arose as to the suitability of that equipment, are discretionary rather than operational decisions. 312. (1976) 10 ALR 269 at 276. 313. Ibid. 314. For example, Aronson and Whitmore, Public Torts and Contracts, 1982, pp 61ff. 315. [1970] AC 1004. 316. In Elguzouli-Daf v Commr of Police [1995] QB 335 at 348–9; 1 All ER 833 at 841–2, although the planning/ operational dichotomy was alluded to, the CA preferred to base its decision not to hold the Crown Prosecution Service liable on policy grounds (the inhibiting effect of the

imposition of a duty of care on the discharge by the service of its central function of prosecuting crime). Similarly, Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3 at [31]. And see Bennett v Metropolitan Police Commr [1995] 1 WLR 488 at 502 (Secretary of State under no duty to private litigants when exercising public duty of deciding whether to withhold from publication documents harmful to the public service). 317. [1970] AC 1004 at 1031. 318. Ibid at 1067–8. 319. Ibid at 1031. 320. Ibid at 1067–8. Both judges found the Home Office to be liable on this basis. 321. [1978] AC 728; [1977] 2 All ER 492. 322. An example of this readiness is to be found in Lonrho plc v Tebbit [1992] 4 All ER 280 at 287 (CA). 323. In Just v British Columbia [1987] 2 WWR 231, the British Columbia Court of Appeal held that a road maintenance crew exercised policy functions in deciding when and where to carry out inspections, but the Supreme Court of Canada held the decisions to be operational: (1989) 64 DLR (4th) 689. 324. Consider also the useful example given in Anns itself from the American case Indian Towing Co Inc v United States (1955) 350 US 61; 100 L Ed 48 — the power to decide whether to have a lighthouse on a promontory is a policy–planning decision; it would be an operational failure once a lighthouse had been installed, to allow it to go unlighted in the hours of darkness. But how would you classify a decision to discontinue maintaining the lighthouse altogether? 325. For example, Acrecrest Ltd v WS Hattrell (1979) 252 Estates Gazette 1107, aff’d on appeal [1983] QB 260; 1 All ER 17 (CA). Applications of the Anns principle include Fellowes v Rother DC [1983] 1 All ER 513; Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; X v Bedfordshire County Council [1995] 2 AC 633; 3 All ER 353 (HL). The New Zealand Court of Appeal uncritically endorsed Lord Wilberforce’s views in Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 at 318. Reversed on appeal: Rowling v Takaro Properties Ltd [1988] AC 473; 1 All ER 163 (PC); see discussion by Todd, ‘Takaro Properties Decision of the Privy Council’ (1988) NZLJ 34. 326. [1996] AC 923 at 951–2; 3 All ER 801 at 826 cf per Lord Nicholls at 938; 814 and per Lord Hutton in Barrett v Enfield London Borough Council [2001] 2 AC 550 at 583; [1999] 3 All ER 193 at 222. 327. Phelps v Hillingdon London Borough Council [2001] 2 AC 619 at 673–4; [2000] 4 All ER 540 at 563 per Lord Clyde. See also DS and RL v Gloucestershire County Council [2000] EWCA Civ 72. In Connor v Surrey County Council [2011] QB 429; [2010] 3 All ER 905 (CA), Laws LJ commented at [92]ff, on the shift of emphasis in cases such as Barrett and Phelps away from reasoning ‘grounded in the formulation of a sharp-edged principle’ (ie, the immunity owed to the authority of parliament) towards a ‘more flexible, pragmatic approach’. 328. ‘If the policy as a statute is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care: Desmond v Chief Constable of Nottinghamshire Police [2011] ECWA Civ 3 at [39]; also Gorringe v Calderdale Metropolitan BC [2004] 1 WLR 1057 at [71]. 329. B v Attorney-General [2004] NZLR 145 at [13] per Lord Nicholls — duty owed under the Children and Young Persons Act 1974 (NZ) to child but not to the parent. Common law negligence may well be inconsistent with or contra-indicated by the statutory scheme: Home

Office v Mohammed [2011] EWCA Civ 351 at [12], [13]. 330. [1985] AC 210; [1984] 3 All ER 529. And see Yuen Kun Yeu v A-G for Hong Kong [1988] AC 175; [1987] 2 All ER 705 (PC) (no duty owed to depositors by Commission for Deposit Taking Companies); Deloitte Haskins and Sells v National Mutual Life Nominees Ltd [1993] 3 NZLR 1 (auditors’ duties to trustees regulated by legislation, not common law). 331. (2002) 211 CLR 540; 194 ALR 337 at [39] per Gleeson CJ, at [79] per McHugh J. 332. For example, Sasin v Commonwealth (1984) 52 ALR 299; Clarke v Gisborne Shire Council [1984] VR 971; Sutherland Shire Council v Heyman [1982] 2 NSWLR 618; FS Evans & Sons Pty Ltd v Delany (1985) 58 LGRA 405. 333. (1985) 157 CLR 424; 60 ALR 1. 334. Ibid at 442; 14. Some writers would not agree: see Bailey and Bowman, ‘The Policy/Operational Dichotomy: A Cuckoo in the Nest’ (1986) CLJ 430. 335. (1985) 157 CLR 424 at 500; 60 ALR 1 at 57. 336. Ibid at 468–9; 34–5. The NSW Supreme Court in Commonwealth v Eland (1992) Aust Torts Reports 81-157, describing this principle as ‘well-settled’, held that it is inappropriate for the courts to question governmental policies and to reflect disapproval by extending liability in torts in such an area (at 62,211). 337. [1978] AC 728 at 755. 338. (1985) 157 CLR 424 at 442; 60 ALR 1 at 14–15. 339. Ibid at 445; 17. 340. Ibid at 458; 27. 341. Essendon Corporation v McSweeney (1914) 17 CLR 524 at 530; Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 at 197. 342. For example, Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455–6; Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd (1916) 21 CLR 181 at 199; East Suffolk Rivers Catchment Board v Kent [1941] AC 74 at 88–9; South Australian Railways Commr v Riggs (1951) 84 CLR 586 at 589–90. 343. (1985) 157 CLR 424 at 465; 60 ALR 1 at 31–2; these views received the firm support of McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 at [82]. See also Kirby J at [217]ff; but cf Brennan J in Pyrenees Shire Council v Day (1998) 192 CLR 540; 151 ALR 147. 344. Grudgingly acknowledged by Gummow J in Vairy v Wyong SC [2005] 221 ALR 711 at [86]; Helm v Thames-Coromandel DC [2006] DCR 524. Elias CJ in Couch v Attorney-General [2008] 3 NZLR 725 at [59], fn 96 described it as a ‘useful consideration’. For a different view, see Vines, ‘Straddling the Public/Private Divide: Tortious Liability of Public Authorities’ (2010) 9 Judicial Review 445. 345. (1998) 192 CLR 431; 151 ALR 263 at [166] per Hayne J. In Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 Toohey J at [68] and Gummow J at [182] found the distinction unhelpful at least in the particular case while Kirby J at [253] opined that while it was ‘far from perfect, it has some validity’. 346. Ibid at [139] per Kirby J; and see Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 at [14].

347. (1999) 200 CLR 1; 167 ALR 1. 348. Ibid at [84]ff; [132]. 349. Ibid at [171] per Gummow J; at [281] per Hayne J. 350. As Davies, ‘Common Law Liability of Statutory Authorities: Crimmins v Stevedoring Industry Finance Committee’ (2000) 8(2) TLJ 133 notes, however, these judgments are best understood in the context of the policy/operational distinction. 351. (2001) 206 CLR 512; 180 ALR 145 at [311]ff. 352. [1921] 3 KB 132. 353. At 145 per Scrutton LJ. Similarly Revesz v Commonwealth (1951) 51 SR (NSW) 63. 354. [1941] AC 74 at 87–8. Followed in Administration of Papua and New Guinea v Leahy (1961) 105 CLR 6. The rationale was that the damage here was not caused by any action of the statutory authority, but brought about by independent means (in Kent flood damage and in Leahy tick infestation). 355. (1985) 157 CLR 424; 60 ALR 1. 356. See, eg, Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at [26]–[27]. 357. (1985) 157 CLR 424 at 479; 60 ALR 1 at 42. 358. For example, Fisher v Ruislip-Northwood Urban District Council [1945] KB 584 (erection of unlighted air raid shelter on highway created the risk of drivers colliding with it at night if allowed to remain unlit). 359. For example, East Suffolk Rivers Catchment Board v Kent [1941] AC 74 (damage caused by springtide flooding, not by board’s failure to repair). 360. Per Brennan J in Heyman (1985) 157 CLR 424 at 485; 60 ALR 1 at 46; and see Gaudron J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 at [80]. 361. Heyman (1985) 157 CLR 424 at 460; 60 ALR 1 at 28 per Mason J. 362. (1969) 119 CLR 652. 363. (1981) 150 CLR 225; 36 ALR 385. 364. (1985) 157 CLR 424 at 486; 60 ALR 1 at 47 per Brennan J; further, Mason J at 461; 29. 365. Ibid at 463–4; 60 ALR 1 at 30–1. 366. As explained by Lord Hoffmann in Stovin v Wise [1996] AC 923 at 954; 3 All ER 801 at 829, the plaintiff under this theory does not need to have relied on the expectation that the power would be used or even be aware that it existed. 367. For example, Casley-Smith v FS Evans & Son Pty Ltd (No 5) (1988) 67 LGRA 108 (arguably incorrectly as here there was a contributing act by the fire authority); Northern Territory v Deutscher Klub (Darwin) Inc (1994) 4 NTLR 25; Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 328–31. 368. (1998) 192 CLR 330; 151 ALR 147. Callinan J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 at [310] merely noted its demise. 369. (1998) 192 CLR 330; 151 ALR 147 at [228] per Kirby J. 370. Ibid at [163] per Gummow J. 371. Ibid at [19] per Brennan CJ.

372. Capital & Counties plc v Hampshire County Council [1997] QB 1004 at 1027; 2 All ER 865 at 876–7; OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 at 906–7. 373. Pyrenees Shire Council v Day (1998) 198 CLR 330; 151 ALR 147 at [76]. 374. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495ff; 60 ALR 1 at 54. 375. (1999) 200 CLR 1; 167 ALR 1 at [43] per Gaudron J, [91]–[94] McHugh J, [234] per Kirby J. 376. But see the list of propositions drawn by Ipp JA from these decisions in Amaca Pty Ltd v NSW NSWCA [2004] 124 at [65]. 377. (2002) 211 CLR 540; 194 ALR 337. 378. Not surprisingly by Gaudron and McHugh JJ. 379. (2002) 211 CLR 540; 194 ALR 337 at [146]. 380. Ibid at [320]. 381. (2001) 206 CLR 512; 180 ALR 145. 382. Although Hayne J did not base his decision on the control factor and was furthermore of the view that vulnerability or special dependence did not provide a useful test in deciding whether a statutory authority owes a duty of care: at [308]. 383. Largely restored by subsequent state legislation: Civil Liability Act 2002 (NSW), s 45; Road Management Act 2004 (Vic), s 102; Civil Liability Act 1936 (SA), s 42; Civil Liability Act 2003 (Qld), s 37; Civil Liability Act 2002 (WA), s 5Z; Civil Liability Act 2002 (Tas), s 42; Civil Law (Wrongs) Act 2002 (ACT), s 113, prompting Callinan J’s remark in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [174] that this was not surprising given the pragmatic and intellectual underpinnings of the distinction. The court held that the council’s duty of care was not non-delegable (see Chapter 26). 384. See especially the joint judgment of Gaudron, McHugh and Gummow JJ at [102]. 385. (2009) 237 CLR 215; 254 ALR 432. 386. Ibid at [52], quoting in this regard Gummow J in Pyrenees (1998) 192 CLR 330; 151 ALR 147 at [56]. 387. Stuart v Kirkland-Veenstra, at [112] per Gummow, Hayne and Heydon JJ, at [130] per Crennan and Kiefel JJ. 388. Ibid at [113], [114] per Gummow, Hayne and Heydon JJ; [137] per Crennan and Kiefel JJ. In this case Mr Veenstra, rather than the police, controlled the source of the risk. 389. Ibid at [113] per Gummow, Hayne and Heydon JJ. 390. Ibid at [133] per Crennan and Kiefel JJ. 391. Ibid at [112], [113] per Gummow, Hayne and Heydon JJ. 392. Ibid at [130] per Crennan and Kiefel JJ. See, too, Southern Properties (WA) Pty Ltd v Executive Director of the Dept of Conservation and Land Management [2012] WASCA 79 at [91]. 393. See Australian Law Reform Commission, Report on Occupiers’ Liability, ALRC 42, 1988, p 4. 394. See, eg, Fullagar J in Commr for Railways (NSW) v Anderson (1961) 105 CLR 42 at 56. Also Windeyer J in Commr for Railways (NSW) v Cardy (1960) 104 CLR 274 at 316, who observed that ‘the duty of the occupier is … rooted at bottom in his duty to his neighbour in Lord Atkin’s sense’.

See Australian Law Reform Commission, Report on Occupiers’ Liability, ALRC 42, 1988, pp 6– 395. 7. 396. Donoghue v Stevenson [1932] AC 562. 397. Per Windeyer J in Commr for Railways (NSW) v Cardy (1960) 104 CLR 274 at 316. 398. (1987) 162 CLR 479; 69 ALR 615. 399. (1984) 155 CLR 614 at 622–3; 56 ALR 417. Luntz, Editorial Comment (2010) 18 TLJ 107 describes the law as having fallen into a morass which cried out for reform. 400. (1987) 162 CLR 479 at 488; 69 ALR 615 at 620–1. 401. Occupiers’ Liability Act 1957 (UK), which covered lawful visitors. Only occupancy duties (those affecting the state of the premises) were replaced: Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052 at [113]ff (Eng CA); Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575 at [31]. The Occupiers’ Liability Act 1984 (UK) was later passed to cover trespassers. The duty owed to trespassers under the legislation is a lesser duty than that owed to lawful entrants: Tomlinson v Congleton Borough Council [2004] 1 AC 46; [2003] 3 All ER 1122 at [38], [68]. 402. Occupiers’ Liability Act 1962 (NZ). This followed the approach of the 1957 UK Act in that it covered only lawful visitors, leaving it to the courts to develop the law with regard to trespassers. The issue has become irrelevant in NZ since the introduction of the comprehensive accident compensation scheme described in 12.43ff. 403. Wrongs Act 1958 (Vic) ss 14A–14E; Occupiers’ Liability Act 1985 (WA); Civil Liability Act 1936 (SA) s 20. The Zaluzna decision does not appear to have made any impact in cases involving interpretation of these Acts: see, eg, Schmitz v Pilpel (1988) Aust Torts Reports 80178. Buss JA in Dept of Housing and Works v Smith (No 2) [2010] WASCA 25 at [62]–[63] noted that, despite being considered by the courts on numerous occasions, the relationship between the WA Act and the common law, in particular the juridical basis of an occupier’s duty of care, had not yet been satisfactorily resolved. 404. (1987) 162 CLR 479 at 488; 69 ALR 615 at 620. 405. (1986) 162 CLR 340; 68 ALR 161; see further 13.18ff. 406. Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 at 365 (HL). 407. See Windeyer J in Munnings v Hydro-Electric Commn (1971) 125 CLR 1 at 24. 408. Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 at 365 (HL). 409. As was the situation in Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417. 410. For example, Glasgow Corporation v Taylor [1922] 1 AC 44 (HL) (brightly coloured poisoned berries in a park within easy reach of the child). 411. Lipman v Clendinnen (1932) 46 CLR 550 at 555. 412. Rich v Commr for Railways (NSW) (1959) 101 CLR 135 at 144. 413. Per Wilson J in Hackshaw v Shaw (1984) 155 CLR 614 at 635; 56 ALR 417 at 432. 414. See Kitto J in Thompson v Bankstown Corporation (1953) 87 CLR 619 at 642–3. Also per Dixon CJ and Williams J at 628. Similar decisions were reached in Rich v Commr for Railways (NSW) (1959) 101 CLR 135; Commr for Railways (NSW) v Cardy (1960) 104 CLR 274; Munnings v Hydro-Electric Commn (1971) 125 CLR 1. 415. Common law duties could also co-exist with special duties owed to lawful entrants: Commr for

Railways (NSW) v Anderson (1961) 105 CLR 42; Voli v Inglewood Shire Council (1963) 110 CLR 74. 416. [1951] AC 737. Criticism of this case led directly to the legislative changes subsequently adopted in the Occupiers’ Liability Act 1957 (UK). 417. [1964] AC 1054. 418. Commr for Railways (NSW) v Cardy (1960) 104 CLR 274 at 291. 419. [1964] AC 1054 at 1084. 420. Thompson v Bankstown Corporation (1953) 87 CLR 619 at 642–3. 421. [1964] AC 1054 at 1080–1. 422. Per Lord Reid in Southern Portland Cement Ltd v Cooper [1974] AC 623 at 645 (PC); Herrington v British Railways Board [1972] AC 877 (HL). 423. For example, Commr for Railways (NSW) v Hooper (1954) 89 CLR 486; Commr for Railways (NSW) v Cardy (1960) 104 CLR 274; Commr for Railways (NSW) v Anderson (1961) 105 CLR 42. 424. This trend was acknowledged by Mason J in Papatonakis v Australian Telecommunications Commn (1985) 156 CLR 7 at 17; 57 ALR 1 at 8. 425. (1977) 137 CLR 107 at 132. 426. (1984) 155 CLR 614; 56 ALR 417. Gibbs CJ at 627; 426 noted that this must be regarded as ‘settled law’. 427. (1984) 155 CLR 614 at 656; 56 ALR 417 at 448. 428. For example, Videan v British Transport Commn [1963] 2 QB 650 at 678; 2 All ER 860 at 873 per Pearson LJ. 429. See Hughes, ‘Duties to Trespassers: A Comparative Survey and Revaluation’ (1959) 68 Yale LJ 633 at 697–8. 430. (1985) 156 CLR 7; 57 ALR 1. Cf views of Wilson J at 24; 12–13 to those of Brennan and Dawson JJ at 28; 16. 431. See, eg, the differing views of Wilson and Deane JJ in Hackshaw v Shaw (1984) 155 CLR 614 at 636, 657; 56 ALR 417 at 433, 448–9 and those of Brennan and Dawson JJ in Papatonakis v Australian Telecommunications Commn (1985) 156 CLR 7 at 28; 57 ALR 1 at 16. 432. (1987) 162 CLR 479 at 487; 69 ALR 615 at 619–20. 433. The High Court specifically extended this to include all categories of entrant, even trespassers. And, as made clear by McHugh J in Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469; 207 ALR 52 at [31], the occupier’s duty is no longer confined to protecting entrants against injury from static defects in the premises. 434. (1988) 15 NSWLR 65. 435. Ibid at 68 per Samuels JA. 436. For example, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; 120 ALR 42 at 62; New South Wales v Watton (CA(NSW), 7 December 1998, BC9806562, unreported) at 7; Newcastle Entertainment Security Pty Ltd v Simpson (1999) Aust Torts Reports 81-528 at [28] (NSWCA). 437. Wilbe v City of Munno Para [2002] SASC 425 at [42].

438. McHugh JA in Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 522, noting this point, made the comment that ‘it may be that the distinction between invitees, licensees and trespassers will disappear, leaving the nature of the entrance subsumed under the issues of foreseeability and reasonable practicality’. And in Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 it was held that the duty of an hotelier to protect one patron from a foreseeable risk of injury from the acts of another patron necessarily involves considerations of a duty different from the duty arising out of risks of injury from an inanimate object: at 97. 439. Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452 at [24]. So in Davis v Nolras Pty Ltd [2005] NSWCA 379 at [65], the fact that the entrant was a specialist independent contractor was relevant in assessing the measure of the duty owed. 440. Demczuk v Polish Society Dom Mikolaja Inc (1987) 46 SASR 223 at 231 per von Doussa J; Partridge v Hobart City Council [2010] TASSC 62 and cases cited therein. 441. As stated by Miller AJA in Di Vincenzo v Krill [2005] WASCA 222 at [69], the fact that an entrant is a trespasser may be relevant to the question of liability but is not, of itself, determinative. 442. For example, in Doubleday v Kelly [2005] NSWCA 151, it was considered relevant that the visitor, a seven-year-old child, was injured on a trampoline while left unsupervised; also Freudenstein v Marhop Pty Ltd [2010] NSWSC 724 at [89], [95]. 443. See, eg, Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 665; 56 ALR 417 at 454. In Glasheen v Waverley Municipality (1990) Aust Torts Reports 81-016, the Zaluzna principle was applied to a local council having control and management of a swimming beach. The duty is delegable, ie, it may be discharged in whole or in part by the occupier’s exercise of reasonable care in engaging a third party to do a particular task in which event the third party may come under a duty of care to persons coming onto the property: Jennings v Westfield Shopping Centre Management Co (ACT) Pty Ltd [2010] ACTSC 11 at [53], [54]. 444. (1993) 177 CLR 423 at 430; 112 ALR 393 at 397. 445. Ibid. A similar approach was independently adopted by the NSW Court of Appeal in Public Trustee v Sutherland Shire Council (1992) Aust Torts Reports 81-149 at 61,138 per Gleeson CJ. 446. Being situations involving public bodies as occupiers of land open to the public. Different considerations apply with respect to public rights of way over otherwise private land: Gautret v Egerton (1867) LR 2 CP 371; McGeown v Northern Ireland Housing Executive [1995] 1 AC 233; [1994] 3 All ER 53 (HL). 447. (1993) 177 CLR 423 at 436–7; 112 ALR 393 at 402, citing in this regard Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 120, 124, 134. A similar approach was adopted in Aiken v Kingborough Corporation (1939) 62 CLR 179 at 203–6; also Mulligan v Coffs Harbour CC [2005] 221 ALR 764 at [50] per Hayne J. Cf South Australia v Wilmot (1993) 62 SASR 562 at 569 where a duty was held not to exist in the absence of any statutory duty to manage and control the area for the benefit of the public coupled with an absence of assumption of control. 448. See, eg, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 and other cases discussed in 7.28ff; also Burton v Brooks [2011] NSWCA 175 at [22]. 449. Indeed, the very relationship between occupier and entrant is itself one of the relevant circumstances: see, eg, Hetherington v Mirvac Pty Ltd (1999) Aust Torts Reports 81-514 at [188] per Wood CJ (NSWSC). 450. Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–8; 29 ALR 217 at 221 per Mason J. 451. See discussion at 8.10.

452. Mulligan v Coffs Harbour CC (2005) 223 CLR 486; 221 ALR 764 at [15]–[21] per McHugh J. 453. Views clearly differ on the need for a warning, particularly where the danger is obvious or involves risky recreational activities. See, eg, per Kirby J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [126]ff; Romeo v Conservation Commn (NT) (1998) 192 CLR 431; 151 ALR 263; Hoyts Pty Ltd v Burns (2003) 210 ALR 470 (HCA); University of Wollongong v Mitchell [2003] NSWCA 94; Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249; Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [7]–[8], [40]–[42], [148]ff. 454. (1993) 177 CLR 423 at 432; 112 ALR 393 at 398–9. The High Court’s findings on foreseeability were of great concern to Clarke JA in Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 275 (NSWCA), who noted that the decision ‘effectively places the council in the position of an insurer’ because, from a practical perspective most happenings can be described as ‘foreseeable’. See also criticism of this case by Trindade, ‘The Liability of Public Authorities to the Public in Negligence’ (1994) 2 Tort L Rev 69; Berns, ‘Judicial Paternalism and the High Court’ (1993) 18 Alt LJ 202; The General Editor, ‘A Tale of Two Divers’ (1993) 1 TLJ 199. 455. (1993) 177 CLR 423 at 443–4; 112 ALR 393 at 407–8. Gleeson CJ and Kirby J adopted a similar approach in Mulligan v Coffs Harbour CC [2005] 221 ALR 764 at [6] in relation to ‘common dangers’. 456. Ibid at 442; 406 respectively. An alternative approach, adopted in Public Trustee v Sutherland Shire Council (1992) Aust Torts Reports 81-149 at 61,142, is to find that the failure to erect a warning sign did not cause the injury. 457. (2005) 221 CLR 234; 214 ALR 452 at [36]. 458. See Mason J in Papatonakis v Australian Telecommunications Commn (1985) 156 CLR 7 at 20; 57 ALR 1 at 10. In Giner v Public Trustee (1991) 105 FLR 410 at 414–15 the court took into account as a relevant consideration the fact that the person at risk was likely to be a child. As to a ship operator’s duty of care to stevedores, see CSL Australia Pty Ltd v Formosa [2009] NSWCA 363. 459. For example, Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141; Bates v Parker [1953] 2 QB 231; Pinborough v Minister of Agriculture (1974) 7 SASR 493; however, the question whether the particular risk in any given case is ‘ordinarily incidental’ is a factual one: see, eg, Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12 at [21], [22]. 460. Per Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 665; 56 ALR 417 at 454. 461. The Australian Law Reform Commission in its Report on Occupiers’ Liability, ALRC 42, 1988, p 30, noted that only in the most unusual and rare circumstances would a court hold an occupier liable to a thief, and then only if the former has done something very dangerous, as in Hackshaw’s case. 462. Bryant v Fawdon Pty Ltd (1993) Aust Tort Reports 81-204 provides a good example. And see Windeyer J in Commr for Railways (NSW) v Cardy (1960) 104 CLR 274 at 319. 463. See, eg, Ryan v State Rail Authority (NSW) [1999] NSWSC 1236 at [17] and authorities cited therein; Jolley v Sutton London Borough Council [2000] 3 All ER 409; Edson v RTA [2006] NSWCA 68 at [96]. As to the difficulties of applying this term, see Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 at [63]–[64] per Gummow J; [277] per Callinan J. 464. Per McCardie J in Maclenan v Segar [1917] 2 KB 325 at 332–3; accepted as a correct expression of the law by the High Court in Watson v George (1953) 89 CLR 409 at 424 per Fullagar J; also, Calvert v Stollznow [1982] 1 NSWLR 175 at 177 per Samuels JA. Liability may, however, be

excluded by the terms of the contract: Macleay Pty Ltd v Moore (1992) Aust Torts Reports 81151. 465. (1988) 14 NSWLR 374 at 378–9. 466. The High Court in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 38; 100 ALR 746 at 749 did not attempt this, reiterating merely that in Zaluzna it had had no occasion to examine the issue. 467. (2005) 222 ALR 631 at [64]–[65]. 468. In Calin (1991) 173 CLR 33 at 40–1; 100 ALR 746 at 751 the High Court refused to overturn a decision in favour of the respondent (entrant) merely because the court below had applied the standard of care expected of a reasonable person in the occupant’s position rather than the higher standard set out in Watson v George on the basis that, in the circumstances, the result was no different. 469. (1997) 188 CLR 313; 146 ALR 572. 470. (2000) 205 CLR 166; 176 ALR 137. 471. The landlord of commercial premises, such as an hotel, may, in some circumstances, owe a duty of care to persons invited onto the premises, including guests: Walsh v Little [2009] NSWSC 267 at [120] per Hall J. 472. (1997) 188 CLR 313 at 340; 146 ALR 572 at 587; followed in New South Wales v Watton (CA(NSW), 7 December 1998, BC9806562, unreported); this duty was conceded in Assaf v Kostrevski (CA(NSW), 30 September 1998, BC9805010, unreported). 473. In Harris (1997) 188 CLR 313 at 347; 146 ALR 572 at 593 per Dawson J, at 358; 601–2 per Gaudron J, at 403–4; 637–8 per Kirby J; and in Jones (2000) 205 CLR 166; 176 ALR 137 at [55] per Gleeson CJ; at [91] per Gaudron J; at [100] per McHugh J; at [168]ff per Gummow and Hayne JJ; at [237] per Kirby J. 474. Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137 at [100]. 475. See per Brennan CJ in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 340; 146 ALR 572 at 587. 476. Ibid at 359–60; 603 per Gaudron J. Bathroom facilities which became ‘unsuitable’ for plaintiff following her knee replacement not ‘defective’: Vasilikopoulos v NSW Dept of Housing [2009] NSWDC 114 at [34]. 477. Established in Cavalier v Pope [1906] AC 428. 478. See generally Mullany and Handford, Tort Liability for Psychiatric Damage, 2nd ed, 2006. 479. See, most recently in Australia, Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [7] per Gleeson CJ; at [44] per Gaudron J; at [193] per Gummow and Kirby JJ; at [296] per Hayne J; see also the lengthy consideration given to the issue in Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [65]ff (CA). 480. The phrase was coined by Lord Denning MR in Hinz v Berry [1970] 2 QB 40 at 42; 1 All ER 1074 at 1075 and adopted by Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394. 481. (1984) 155 CLR 549 at 567; 54 ALR 417 at 430. 482. Hewitt v Bernhardt (1979) 21 SASR 510 at 511; Tsanaktsidis v Oulianoff (1980) 24 SASR 500. One difficulty in distinguishing between the two is that grief, like shock, can result in physical

illness: Coates v Government Insurance Office (NSW) (1995) 36 NSWLR 1 at 3 per Gleeson CJ (CA). 483. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394 per Windeyer J; Stergiou v Stergiou (1987) 4 MVR 435 at 437 (ACTSC) per Gallop J. 484. Giller v Procopets (2004) VSC 113 at [162], [169]. 485. See Rowe v McCartney [1976] 2 NSWLR 72 (CA) in which depression was distinguished from nervous shock. 486. For example, McPherson v Commr for Government Transport (1959) 76 WN (NSW) 352; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 193–4 per Priestley JA (CA). 487. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [193] per Gummow and Kirby JJ. 488. Ibid at [194] per Gummow and Kirby JJ; Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [67] (CA). 489. Civil Law (Wrongs) Act 2002 (ACT) s 35(1); Civil Liability Act 2002 (NSW) s 31; Civil Liability Act 1936 (SA), s 53(2); Civil Liability Act 2002 (Tas) s 33; Wrongs Act 1958 (Vic) s 75; Civil Liability Act 2002 (WA) s 5T. 490. Jaensch v Coffey (1984) 155 CLR 549 at 564–5; 54 ALR 417 at 428 per Brennan J. 491. ‘Law, marching with medicine but in the rear and limping a little’ as the matter was put by Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 395. 492. For example, Victorian Railways Commrs v Coultas (1888) 13 App Cas 222 (PC). 493. Dulieu v White [1901] 2 KB 669. 494. (1984) 155 CLR 549; 54 ALR 417. 495. The phrase is that of Lord Steyn in White v Chief Constable of South Yorkshire [1999] 2 AC 455 at 500; 1 All ER 1 at 38. 496. This distinction was created by Page v Smith [1996] AC 155; [1995] 2 All ER 736. 497. These control devices were established in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; [1991] 4 All ER 907. 498. [1999] 2 AC 455; 1 All ER 1. 499. New South Wales v Seedsman (2000) 217 ALR 583 (NSWCA) at [156] per Mason P. 500. (2002) 211 CLR 317; 191 ALR 449. 501. New South Wales had already published a consultative draft of a bill which formed the basis of what is now the Civil Liability Act 2002 (NSW) Pt 3 prior to the Report of the Review of the Law of Negligence: see 9.22 of that Report. 502. Civil Law (Wrongs) Act 2002 (ACT) s 34(1); Civil Liability Act 2002 (NSW) s 32(1); Civil Liability Act 1936 (SA), s 33(1); Civil Liability Act 2002 (Tas) s 34(1); Wrongs Act 1958 (Vic) s 72(1); Civil Liability Act 2002 (WA) s 5S(1). Subsequent references to this legislation are to the jurisdiction alone. 503. ACT s 34(4); NSW s 32(4); SA s 33(3);Tas s 34(4);Vic s 72(3);WA s 5S(4). 504. The issue of which of the Acts referred to above is applicable to any particular case is determined by reference to the state or territory in which the tort was committed: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625.

505. Jaensch v Coffey (1984) 155 CLR 549 at 568; 54 ALR 417 at 431 per Brennan J. 506. Ibid. 507. Bourhill v Young [1943] AC 92 at 109 per Lord Wright; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 406 per Windeyer J. 508. Morgan v Tame (2000) 49 NSWLR 21 at [14]–[31] per Spigelman CJ. 509. Annetts v Australian Stations Pty Ltd (2000) 23 WAR 25 at [69] per Ipp J. 510. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [90], [109] per McHugh J; at [273] per Hayne J; at [331] per Callinan J. 511. Restated in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355 at [33] per McHugh, Gummow, Hayne and Heydon JJ; at [55] per Callinan J who held that the fact that a psychiatrist placed in the same position as an employer may have foreseen a risk of psychiatric injury does not necessarily mean that a reasonable employer should have done so. 512. Ibid at [201]; to much the same effect see Gleeson CJ at [16], [29], Gaudron J at [60]–[62]. 513. (1984) 155 CLR 549 at 567; 54 ALR 417 at 430. 514. [2000] NSWCA 119. 515. Ibid at [168]. 516. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [35] per Gleeson CJ, at [66] per Gaudron J, at [210] per Gummow and Kirby JJ, at [275] per Hayne J. 517. As the High Court noted in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23 at [27], the occurrence of sudden shock ‘is neither a necessary nor a sufficient condition for a finding that a defendant owed a duty to take reasonable care not to cause a plaintiff pure mental harm’. 518. ACT s 34(2)(a); NSW s 32(2)(a); SA s 33(2)(a)(i);Tas s 34(2)(a);Vic s 72(2)(a);WA s 5S(2)(a). 519. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400; [1991] 4 All ER 904 at 914 per Lord Ackner. 520. Jaensch v Coffey (1984) 155 CLR 549 at 569; 54 ALR 417 at 432 per Brennan J; Spence v Percy [1992] 2 Qd R 299. 521. See, eg, Whayman v Motor Accidents Insurance Board [2003] TASSC 149, in which the ‘extreme form of bereavement’ suffered by parents for the loss of their son was held compensable, and Skea v NRMA Insurance Ltd (2005) 43 MVR 495 (ACTCA), in which the plaintiff’s psychiatric injury, although caused partly by her caring for her tortiously injured family, was nevertheless compensable. 522. (1984) 155 CLR 549 at 567; 54 ALR 417 at 434. 523. Hambrook v Stokes Bros [1925] 1 KB 141 at 152, 159 per Bankes and Atkin LJJ respectively. See also Hinz v Berry [1970] 2 QB 40; 1 All ER 1074. 524. [1972] VR 879 at 880. 525. In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 the successful plaintiff was not directly involved in the accident, but merely its aftermath. 526. For example, per Ormerod LJ in Boardman v Sanderson [1964] 1 WLR 1317; cited with approval in Storm v Geeves [1965] Tas SR 252 at 262 per Burbury CJ. 527. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 405; [1991] 4 All ER

904 at 921 per Lord Ackner. 528. Coates v Government Insurance (NSW) (1995) 36 NSWLR 1 at 11 per Kirby P (CA). 529. Schneider v Eisovitch [1960] 2 QB 430; 1 All ER 169; Andrews v Williams [1967] VR 831; Gannon v Gray [1973] Qd R 411; Kohn v State Government Insurance Commn (1976) 15 SASR 255; cf Spencer v Associated Milk Services Pty Ltd [1968] Qd R 393. 530. Annetts v Australian Stations Pty Ltd (2000) 23 WAR 25 at [19] per Malcolm CJ, at [110], [111] per Ipp J. 531. In addition to the cases cited above expanding the notion of direct perception, see Pham v Lawson (1997) 68 SASR 124; APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633; and Hancock v Wallace (2000) 34 MVR 289 (Qld CA). 532. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [18] per Gleeson CJ, at [51] per Gaudron J, at [225] per Gummow and Kirby JJ, at [275] per Hayne J. 533. ACT s 34(2) (b); NSW s 32(2)(b); SA s 33(2)(a)(ii);Vic s 72(2)(b);WA s 5S(2)(b). 534. Although Tasmania has not enacted a provision equivalent to those cited in the preceding footnote, it is assumed that those provisions are declaratory of the common law in any event. 535. NSW s 30(2); SA s 53(1);Tas s 32(2);Vic s 73(2). 536. (2010) 241 CLR 60; 267 ALR 23 at [45]. The court held further that in such cases, where there were many victims, s 30 of the New South Wales legislation does not require that the plaintiff demonstrate that the psychiatric injury was occasioned by what was happening to a particular victim [53], [54]. 537. (1970) 125 CLR 383. 538. [1967] 1 WLR 912; 2 All ER 945. 539. Dulieu v White & Sons [1901] 2 KB 669. 540. [1925] 1 KB 141. 541. See, eg, Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 416–17 per Walsh J. 542. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. 543. Chadwick v British Transport Commn [1967] 1 WLR 912; 2 All ER 945. 544. See Brennan J in Jaensch v Coffey (1984) 155 CLR 549 at 570; 54 ALR 417 at 432–3. 545. See, in this regard, Pratt v Pratt [1975] VR 378 at 386. 546. ACT s 34(2) (c); NSW s 32(2)(c); SA s 33(2)(a)(iii);Vic s 72(2)(c);WA s 5P(2)(c). 547. Subject to an exemption relating to injured employees; see fn 549 below. 548. NSW s 30(2); SA s 54(1);Tas s 32(2);Vic s 73(2). 549. Civil Law (Wrongs) Act 2002 (ACT) s 36; Law Reform (Miscellaneous Provisions) Act 1956 (NT) ss 23–25. Similar legislation in New South Wales was repealed by the Civil Liability Act 2002 (NSW), with respect to anyone other than an injured employee (see s 3B(1)(f); on the relationship between the legislation and common law principles, see Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100. 550. ACT s 34(2)(d); NSW s 32(2)(d); SA s 33(2)(a)(iv);Tas s 34(2)(b);Vic s 72(2)(d);WA s 5S(2)(d). 551. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [139].

552. Ibid at [130]. 553. Ibid at [144]. 554. Ibid at [140]. 555. [2000] NSWCA 119; see 7.47. 556. For an example of mental harm suffered by an employee being held not to be foreseeable, see Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; 214 ALR 355 and for a case in which the defendant accepted the existence of a duty of care, but successfully argued that there had been no breach, see New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406. 557. [1999] 2 AC 455; 1 All ER 1. 558. [2002] NSWCA 275 at [18]. 559. 211 CLR 317; 191 ALR 449 at [140]. 560. (1984) 155 CLR 549 at 604; 54 ALR 417 at 459, accepted, obiter, as correct in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 401; [1991] 4 All ER 904 at 917–18 per Lord Ackner, at 418; 932 per Lord Oliver, and reluctantly followed by Zeeman J in Klug v Motor Accidents Insurance Board (1991) Aust Torts Reports 81-134 (Tas SC). 561. 1941 SC 395 at 399. 562. The argument put forward by Bray CJ in Kohn v State Government Insurance Commn (1976) 15 SASR 255 at 256 that a person ‘can hardly be legally responsible for the injurious effect of his (or her) own death’ is misleading as it leaves out of the equation the duty owed to another not to cause foreseeable harm. Liability arises not because of the injury a person inflicts on himself or herself but because of that inflicted on another. 563. Greatorex v Greatorex [2000] 4 All ER 769. 564. Shipard v Motor Accident Commn (1997) 70 SASR 240. 565. (2000) 50 NSWLR 261. 566. See, eg, White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 470; 1 All ER 1 at 11 per Lord Goff. 567. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [117] per McHugh J, at [203] per Gummow and Kirby JJ, at [279] per Hayne J. 568. Review of the Law of Negligence, September 2002, 9.33. 569. NSW s 30(4);Vic s 73((3). 570. Davies v Bennison (1927) 22 Tas LR 52 at 54, which denied the plaintiff recovery for nervous shock caused by seeing her pet cat killed in her own yard, based this denial upon the supposed rule that recovery did not even lie for shock caused by fear for the safety of another person, and must be regarded as incorrect. See comment in Storm v Geeves [1965] Tas SR 252 at 256 per Burbury CJ. 571. [1939] 1 KB 394. 572. [1988] QB 304; [1987] 3 All ER 455. 573. Ibid at 320; 464 per Bingham LJ. 574. Ibid at 316; 461 per Woolf LJ. 575. [1983] 1 AC 410 at 433.

576. (2005) 223 CLR 1; 214 ALR 92. 577. (1988) 165 CLR 543; 81 ALR 417. 578. For example, obtaining instructions from a client or of evidence related thereto: Blobel v Ryan [2010] SADC 107 at [94]. 579. For example, failure to take an available defence: Attard v James Legal Pty Ltd [2010] NSWCA 311; or to prepare asset valuation, taxation and other evidence needed for the conduct of the case: Goddard Elliott v Fritsch [2012] VSC 87; or failure to advise on the necessary content of affidavit evidence: Day v Rogers [2011] NSWCA 124. 580. The notion of court proceedings was restrictively interpreted in Donellan v Watson (1990) 21 NSWLR 335 to exclude from immunity a situation in which the solicitor’s agent negligently disregarded a client’s instructions as to orders and consented to different orders being made to detriment of the client. As to whether the immunity extends to intentional torts by virtue of the Administrative Appeals Tribunal Act 1975 (Cth) s 60(c)(2) to proceedings before that tribunal see Leerdam v Noori (2009) 255 ALR 553 (NSW CA) at [140]ff per Macfarlan JA. 581. But not necessarily limited to negligence: D’Orta-Ekenaike (2005) 223 CLR1; 214 ALR 92 at [85]. 582. Per McCarthy P in Rees v Sinclair [1974] 1 NZLR 180 at 187; see also Atwell v Michael Perry & Co [1998] 4 All ER 65; D’Orta-Ekenaike op cit [86], [95], [151], [381] and cases cited in [154]– [156]. The application of the immunity is likely to be fact-specific: per Beazley JA in Symonds v Vass [2009] NSWCA 139 at [28]; also per Ross J in Naylor v Oakley Thompson & Co Pty Ltd [2008] VCAT 1724 at [27]. 583. See, eg, MacRae v Stevens (1996) Aust Torts Reports 81-405 (NSWCA) (failure to advise on limitation periods in another state); Saif Ali v Sydney Mitchell & Co [1980] AC 198. As to whether the immunity applies to advice on the compromise of an action by way of an out-ofcourt settlement, see Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85. 584. See Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 at 559; 81 ALR 417 at 423; D’OrtaEkenaike (2005) 223 CLR 1; 214 ALR 92 at [91], [383]–[384] but cf dissenting opinion of Kirby J at [271], [290], in relation to out-of-court acts. 585. (1988) 165 CLR 543 at 555; 81 ALR 417 at 421. 586. As such the immunity applies equally whether in respect of claims by clients against their lawyers (as a ‘shield’ against suit) or where the lawyer’s conduct is raised as a defence to a claim for fees: Foster James Pty Ltd v Dalton [2010] VSC 327 at [8]. 587. D’Orta-Ekenaike (2005) 223 CLR 1; 214 ALR 92 at [104]ff, per McHugh J. 588. Ibid at [45]–[46] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [116]ff per McHugh J. 589. In Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993. 590. [2002] 1 AC 615; [2000] 3 All ER 673. Expert witness immunity has also subsequently been abolished, at least in UK courts: Jones v Kaney [2011] 2 AC 398; 2 All ER 671, but see the strong dissenting views of Lord Hope and Lady Hale at [173] and [190] who would have preferred to leave the issue for consideration by the Law Commission. 591. [2007] 2 NZLR 7. 592. [2003] 2 NZLR 374. 593. [2005] 3 NZLR 29.

594. [2007] 2 NZLR 7 at [3]. 595. Ibid at [203], thus overruling Rees v Sinclair [1974] 1 NZLR 180. 596. [2007] 2 NZLR 7 at [160]. As noted by Basten JA in Bott v Carter [2012] NSWCA 89 at [31], [32] it remains to be seen how far the difference in approach will lead to different results. 597. For a discussion of the relevant legislation see Thomas,‘Claims for Wrongful Pregnancy and Damages for the Upbringing of the Child’ (2003) 26 UNSWLJ 125 at 127–32. 598. (2003) 215 CLR 1; 199 ALR 131; noted by Seymour (2003) 11 TLJ 208. 599. Melchior v Cattanach (2001) Aust Torts Reports 81-597 (Qld SC). 600. [2001] QCA 246. 601. Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 at [57]. 602. See also, to the same effect, Kirby J at [179], Callinan J at [295]. 603. Accepted by Gleeson CJ: see at [19]. 604. On the need to impose a limit on claims for purely economic loss because of their possible indeterminacy, see 13.9–13.10. 605. At [148] per Kirby J; see also at [67]–[68] per McHugh and Gummow JJ; cf Callinan J at [299], who considered that the case was one of purely economic loss, but that such loss was not indeterminate. Similarly, G and M v Armellin [2008] ACTSC 68 at [138]–[139] (unwanted multiple pregnancy held to be physical injury for which damages were recoverable). 606. At [353] per Heydon J. 607. At [77] per McHugh and Gummow JJ; see also at [142]–[145] per Kirby J, at [301] per Callinan J. 608. At [90] per McHugh and Gummow JJ; see also at [167]–[175] per Kirby J, at [297] per Callinan J. 609. See Civil Liability Act 2002 (NSW) Pt 11; Civil Liability Act 2003 (Qld) Ch 2 Pt 5; Civil Liability Act 1936 (SA) s 67. 610. Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] QB 1012; [1984] 3 All ER 1044; Thake v Maurice [1986] QB 644; 1 All ER 497. 611. [2000] 2 AC 59; [1999] 4 All ER 961; noted by Weir (2000) CLJ 238; Hoyano, ‘Misconceptions about Wrongful Conception’ (2000) 65 MLR 883. 612. Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309; [2003] 4 All ER 987 at [6]; see further below. 613. [2004] 1 AC 309; [2003] 4 All ER 987. 614. [2003] QB 20; [2002] 2 All ER 177. 615. The expression used by Lord Bingham [2004] 1 AC 309; [2003] 4 All ER 987 at [7]; cf the comment by Lord Steyn, at [43], that the rule adopted by the majority is ‘a radical and most important development which should only be embarked on after rigorous examination of competing arguments’. 616. Presumably the amount would rise in order to retain its real value, as the conventional award for loss of expectation of life rises in monetary terms: see 11.30. 617. [2004] 1 AC 309; [2003] 4 All ER 987 at [8].

618. [2002] QB 266; [2001] 3 All ER 97. 619. [2004] 1 AC 309; [2003] 4 All ER 987 at [35] per Lord Steyn, at [55] per Lord Hope and at [91] per Lord Hutton. 620. See at [112] per Lord Millett, at [144]–[147] per Lord Scott. 621. As to the usage ‘wrongful life’, see Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [8]–[14], [223]. And see A (a minor) and B (a minor) by C (their mother) v A Health and Social Services Trust [2010] NIQB 108, where the court refused to entertain an action by children of a different colour than their mother, born as a result of IVF treatment, leaving it to parliament ‘to define the limits of protection which should be accorded in such circumstances’, at [15]. 622. [1982] QB 1166; 2 All ER 771. Wrongful life actions for children born after 22 July 1976 have been prohibited by the Congenital Disabilities (Civil Liability) Act 1976 (UK). 623. (2006) 226 CLR 52; 226 ALR 391 at [243]ff, per Crennan J, with whom the majority of the court agreed. Cf per Hayne J, who preferred to base his decision solely on the failure to establish damage: [160]. 624. (2006) 226 CLR 136; 226 ALR 457 at [86]. 625. Ibid at [245] per Crennan J; cf per Kirby J at [66ff]. 626. Ibid at [257] per Crennan J. 627. Ibid at [250] per Crennan J; cf at [73]–[76] per Kirby J. 628. Ibid at [265]–[266] per Crennan J; cf at [78]ff per Kirby J. 629. Civil Law (Wrongs) Act 2002 (ACT) Pt 2.2; Civil Liability Act 2002 (NSW) Pt 9; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Civil Liability Act 2003 (Qld) Pt 3 Div 2; Volunteers Protection Act 2001 (SA); Civil Liability Act 2002 (Tas) Pt 10; Wrongs Act 1958 (Vic) Pt IX;Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA). 630. [1947] AC 341. 631. As to a highway authority’s responsibility for straying animals, see Commissioner of Main Roads v Jones (2005) 215 ALR 418 (HCA). 632. (1979) 142 CLR 617; Kelly v Sweeney [1975] 2 NSWLR 720. 633. Animals Law Reform Act 1989 (NZ) s 5. 634. Civil Law (Wrongs) Act 2002 (ACT) s 214; Animals Act 1977 (NSW) s 7(2)(b); Civil Liability 1936 (SA) s 18; Law of Animals Act 1962 (Tas) s 19; Wrongs Act 1958 (Vic) s 33; Highways (Liability for Straying Animals) Act 1983 (WA) s 3. 635. (1994) 35 NSWLR 417 at 427. Cf Gregory’s (Properties) Pty Ltd v Muir (1993) 17 MVR 86 in which the NSWCA (at 88) described these provisions as ‘ungainly’. In that case both parties accepted that the legislation abrogated the rule in Searle v Wallbank. The issue therefore was simply whether the owner was negligent in permitting the animal to stray onto the highway. 636. (1994) 35 NSWLR 417 at 424. 637. See generally 8.4ff. 638. Graham v Royal National Agricultural and Industrial Assoc of Queensland [1989] 1 Qd R 624.

[page 263]

CHAPTER 8 Breach of Duty

The Standard of Care Law, not fact 8.1 So far, only the range of persons to whom the defendant owes a duty of care and the types of harm to which the duty of care extends have been considered. Although it is not uncommon for the standard of care to be treated as part of the ‘duty’, it seems preferable to confine ‘duty’ to the question of whether the defendant is under an obligation to the plaintiff and to treat separately the question of the extent of the duty owed. The conduct of the defendant, and especially the nature of the duty of care imposed on the defendant, must next be looked at. It certainly is a matter of law and not fact to ascertain the rules to be applied in deciding whether the defendant has broken a duty of care owed to the plaintiff. It will be seen that the standard required of the defendant is that of the reasonable person, which is a legal standard. Some House of Lords cases will make the point clear. In Glasgow Corporation v Muir, Lord Thankerton explained1 that, after deciding that the appellants owed a duty to take reasonable care for the safety of children on the premises, the further question had to be settled, namely, ‘the test by which … the standard of care is to be judged’. In Paris v Stepney BC, where the House of Lords considered a claim in negligence brought by a one-eyed employee whose good eye was injured in the course of work which involved risk to the eyes while not wearing goggles, Lord Oaksey first held2 that ‘the

duty of an employer towards his servant is to take reasonable care for the servant’s safety in all the circumstances of the case’ and then defined the standard of care required. Similarly, in Bolton v Stone, Lord Normand commenced his judgment as follows:3 My Lords, it is not questioned that the occupier of a cricket ground owes a duty of care to persons on an adjacent highway or on neighbouring property who may be in the way of balls driven out of the ground by the batsman. But it is necessary to consider the measure of the duty owed.

It is a matter of law that if A owes B a duty of care A must attain the standard of a reasonable person; the measure of careful behaviour being reasonableness rather [page 264] than elimination of, or insurance against,4 risk — a further examination of the legal meaning of this phrase will be made in 8.13ff. There are other principles of law going to the standard of care which will now be discussed.

Striking the balance 8.2 The fundamental problem of principle is how to strike a balance between the utility of the activities of the defendant and the threat of harm to the plaintiff which these activities engender. These are two basic factors which must be taken into account in deciding whether one who owes a duty to another has shown reasonable care in its discharge.5 The function of the courts in ascertaining the balance between the individual’s right to freedom from harm and the social utility of the defendant’s activity can be seen to involve determinations on the general public interest although these determinations are themselves susceptible to differences. Cases concerning the standard of care demanded of doctors counselling patients on the risks of proposed medical treatment help to illustrate this. In the United Kingdom a majority of the House of Lords in Sidaway v Bethlem Royal Hospital Governors,6 referring to the undesirable social consequences of adopting a patient-centred standard,7 rejected the contention that the standard of care ought to be what the reasonable patient

would want to know rather than what the reasonable doctor was prepared to tell. This approach has been rejected by the Australian High Court in Rogers v Whitaker 8 on the basis that, although: … the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure … the choice is … meaningless unless it is made on the basis of relevant information and advice.

The question, moreover, is what significance the particular patient9 would attach to the risk if warned of it, and not merely what the reasonable patient10 would make of it. The court’s approach may stem, in part, from a perception of rising standards of public education leading to the desire on the part of patients to take greater personal control over decisions involving them.11 [page 265] Alternatively, the balance struck by the courts reflects their perception of what constitutes the public interest in the changing circumstances of our society. The view has been expressed,12 for example, that the availability of private insurance (coupled with the reasonable expectation that it would be taken out) might have encouraged the trend towards recognition of the obligation on the part of those who occupy premises to give positive thought to the prevention of accidents, particularly where members of the public or employees have regular access to the premises.

8.3 It is often difficult to assess the courts’ view of the public interest. Compare the cases of Budden v BP Oil Ltd13 and Froom v Butcher.14 In the former case an action was brought on behalf of a child alleging that the child had suffered brain damage caused by excessive lead in its blood. The high level of lead was assumed to result from lead particles emitted by vehicles using petrol supplied by the defendant, to which they had deliberately added lead. The British Parliament was progressively phasing down the permitted lead content of petrol and, at the time of the damage to the child, the level of lead in petrol complied with statutory limits but would not have done so later. The relevant legislation did not provide that it was a defence to any action that the limit was not exceeded — it merely made it a crime to exceed the

limit. The court held that parliament in setting the limit must be regarded as having conclusively determined in the public interest, taking into account all factors of which health risk was only one, that at the time it was reasonable to add that amount of lead to petrol. The defendant was, accordingly, not liable. This decision is to be contrasted with that in Froom’s case, where the English Court of Appeal in a similar situation did not regard itself as precluded by parliament from making an independent decision on the standard of care in a negligence action. It held that failure to wear a seatbelt clearly constituted contributory negligence despite the fact that at the time of the accident parliament had made it compulsory to fit seatbelts to the front seats of all motor vehicles but it had not yet passed legislation to make the wearing of seatbelts compulsory and the not wearing of them a crime.

The guiding principles of law 8.4 In Wyong Shire Council v Shirt Mason J held15 that, in order to determine what a reasonable person would do by way of response to a given risk, the trier of fact would need to consider ‘the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have’. Despite some criticism of the Shirt formula as being too undemanding,16 [page 266] alternatively, unrealistic and difficult to apply,17 the High Court in NSW v Fahy has reaffirmed its continued relevance.18 However, its proper application requires a ‘contextual and balanced assessment of the reasonable response to a foreseeable risk’.19 As the standard of care required of the reasonable man or woman placed at the time of the accident in the shoes of the defendant is an objective one,20 only by balancing these factors can it confidently be asserted that this standard has been met. The need for establishing this balance ostensibly remains even in situations which would formerly have attracted the rule in Rylands v Fletcher. In such circumstances, however, the High Court has ruled21 that a reasonable prudent person would

exercise ‘a high degree of care’ which, depending on the magnitude of the danger, might well involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’.22 Principles along the same lines as those stated by Mason J have now been included in legislation in some of the Australian jurisdictions, applicable generally to causes of action arising other than from the use of a motor vehicle or in the workplace.23 It is assumed that, when interpreting this legislation, the courts will be guided by the principles already developed by the common law over the previous century or more.

The likelihood of harm 8.5 The High Court in Swinton v The China Mutual Steam Navigation Co Ltd made the point that24 ‘[t]he measure of care increases in proportion with the danger involved’. As this statement indicates, the amount of caution required is not based on an absolute standard but tends to increase25 with the likelihood that the defendant’s conduct will cause harm.26 A very high degree of care is called for where the harm is [page 267] inherently likely27 to occur, so that, for example, the occupier of a large and bustling shopping mall in which was located a confectionery shop was required to take steps to guard against the ‘enhanced risk’ of customers falling on floors made dangerously slippery by melted confectionery.28 On the other hand, the chance of harm may be so small that one may be seen to take reasonable care although taking no steps at all to eliminate the risk.29 The High Court in Waugh v Kippen30 upheld a finding of the lower court that the evidence in that case failed to establish any breach of duty where the risk, although in the circumstances not far-fetched or fanciful,31 was nevertheless very slight.32 The chance of harm manifesting itself in an actual occurrence cannot, in all cases, be measured merely on the basis of mathematical assessment;33 all the circumstances of the case are to be taken into account. The degree of risk of harm is only one factor in this equation, along with the other factors enumerated below, in deciding whether reasonable care has

been taken.

The seriousness of the risk and the risk of serious injury 8.6 Not only is it a principle of law that a greater risk of injury is a material factor in framing the standard of care, but it is also a legal rule that the risk of greater injury is material. Together these factors are said to constitute the measure of the risk.34 Dixon J in Mercer v Commissioner for Road Transport and Tramways (NSW) put the situation thus:35 In considering the extent and nature of the measures that due care demands, the first question must be the gravity, frequency and imminence of the danger to be provided against.

A practical application of this rule is to be found in Bryden v Chief General Manager of the Health Department where the Victorian Supreme Court held36 that failure to adopt any adequate screening process for the purpose of excluding from a BCG vaccination program persons with a suppressed immune response system who might be at serious risk from an adverse reaction constituted a breach of the duty of care owed to such persons, even though the likelihood of their participation in the program was low. In Paris v Stepney BC37 the English Court of Appeal had held [page 268] that, where the disability of an employee did not increase the risk of an accident, but only increased the risk of serious injury if such an accident were to happen, the disability was irrelevant in determining the standard of care. The House of Lords reversed this, holding that the gravity of the consequences if an accident did occur had to be taken into account in fixing the measure of care.38 The potentially grave nature of the consequences of an accident were undoubtedly taken into account in Swinton v The China Mutual Steam Navigation Co Ltd.39 Wharf labourers were here involved in loading and unloading cargoes of mustard gas. It was held that the unusually serious nature of the risks to which they were subject cast on the defendant shipowners a very high duty of care for their safety. The above principle is not limited to cases of personal injury. Several decisions may be cited where the risk involved was one of damage to property by fire, and where the dry,

hot Australian climate, leading to the increased risk of harm as well as the risk of more serious harm, has been a major factor in the courts’ assessment as to what the defendant should have done to avert or minimise the risk.40

The utility of the act of the defendant 8.7 In Paris v Stepney BC the House of Lords was also careful to point out that ‘the seriousness of the injury or damage risked and the likelihood of its being in fact caused may not be the only relevant factors’.41 The reference was plainly to that other basic consideration, the utility of the act of the defendant. Daborn v Bath Tramways Motor Co Ltd is illustrative.42 The relevant issue in this case was whether the driver, in wartime, of a left-hand drive ambulance had been negligent in turning into a lane on the right-hand side of the road without giving a signal. Holding that she had not broken her duty of care, Asquith LJ said:43 In determining whether a party is negligent, the standard of reasonable care is that which is reasonably to be demanded in the circumstances. A relevant circumstance to take into account may be the importance of the end to be served by behaving in this way or that … The purpose to be served, if sufficiently important, justified the assumption of abnormal risk. The relevance of this applied to the present case is this: during the war which was, at the material time, in progress, it was necessary for many highly important operations to be carried out by means of motor vehicles with left-hand drives, no others being available. So far as this was the case, it was impossible for the drivers of such cars to give the warning signals which could otherwise be properly demanded of them. Meanwhile, it was essential that the ambulance service should be maintained. It seems to me, in those circumstances, it would be demanding too high and an unreasonable standard of care from the drivers of such cars to say to them: ‘Either you must give signals which the structure of your vehicle renders impossible or you must not drive at all’.

[page 269] Daborn’s case should not be taken as authority for the proposition that drivers of emergency vehicles are necessarily exempt from the operation of the ordinary rules of the road, but merely that in certain circumstances they might be subject to a lesser standard of care. The courts have accordingly interpreted legislation relieving such drivers from the need to obey speed limits and the like as conferring an immunity from criminal prosecution, but not as negating the duty of care.44 In Watt v Hertfordshire County Council Lord Denning, in making the point

that the risk has always to be balanced against the end to be achieved, held45 that what might be want of care towards an employee in a commercial enterprise will not necessarily be want of care towards a fire fighter, for ‘the commercial end to make profit is very different from the human end to save life or limb’. So, too, the extent of the duty owed by a police officer in pursuit of a suspect must be judged in the light of the end to be attained, that is, the lawful arrest of the suspect.46 And, when assessing the actions of a medical practitioner, the patient’s need for an operation must be taken into account, as must the existence of reasonably available and satisfactory alternative treatments.47

The cost of avoiding the harm 8.8 The cost of eliminating the risk is to be measured not only in terms of monetary expense but also in the light of the difficulty and practicability of taking precautions in any given situation. Every reasonably foreseeable risk must be balanced against the measures necessary to avert it.48 Any defendant who neglects to take precautions will have to justify this neglect to the courts. This will be a difficult task where the risks are serious and the costs low.49 Even when the risk is adjudged unlikely to occur, it remains essential to consider whether a reasonable person would nevertheless have taken steps to eliminate it altogether, having regard to the enormity of the consequences if that risk should eventuate.50 In Caledonian Collieries Ltd v Speirs51 the High Court found the defendant liable in negligence for failing to install catchpoints on a railway line to prevent an escape of railway trucks on to the road, even given that the likelihood of such an event occurring was low. In reaching this conclusion the court took into account the fact that the installation of the safety system would not have involved the defendant in any great expense or difficulty. And in The Wagon Mound (No 2) the Judicial Committee held52 that a reasonable person would not neglect a risk that was plainly foreseeable as a possibility — even if only a remote [page 270] one — ‘if action to eliminate it presented no difficulty, involved no

disadvantage, and required no expense’. A considerable expenditure might, however, justify the neglect of a very small risk.53 In Romeo v Conservation Commission of the Northern Territory,54 the High Court took into the equation the limited resources available to public authorities and the fact that demanding their expenditure in one area ‘necessarily diverts resources from other areas of equal or possibly greater priority’. On the other hand, the High Court has also suggested that where the obligation is to provide a safe work environment and where the precautions would be simple and inexpensive, the balancing exercise would require the reasonable employer to take all such measures even in cases where the risk is low.55

8.9 In extreme cases, where the risk of serious injury is high but where practicable precautions prove impossible, the only course available to the reasonable person may be to cease the activity entirely. This was envisaged in Latimer v AEC Ltd 56 where an exceptional storm had caused a factory floor to become flooded. When the water receded, the floor was found to be covered with a slimy mixture of oil and water so that its surface was slippery. In issue was the liability of the factory owners to an employee who, some hours later, slipped on the floor and was injured. The House of Lords affirmed the decision of the Court of Appeal that there was no negligence at common law, Lord Tucker saying:57 The only question was: Has it been proved the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work?

In assessing the cost of taking precautions, and the related issue of resources, there is some authority that the inquiry should not be directed to the actual resources of the defendant but that the issue should be decided on a purely objective basis. In PQ v Australian Red Cross Society58 the Victorian Supreme Court, examining the measure of care required to be taken by the Red Cross in screening blood products for use in the treatment of haemophilia, held that whether the care fell short of the required standard of care was to be tested by reference to ‘a reasonable person with adequate resources available to conduct the enterprise in which the Red Cross was engaged’ and not by reference to the resources of the Red Cross itself. The courts have nevertheless been prepared to adopt a more subjective approach when called on to assess the defendant occupier’s duty towards a trespasser, on the basis that the relationship of proximity in such situations is ‘forced’ on

the occupier.59 [page 271]

The obviousness of the risk 8.10 In recent years another factor — the obviousness of the risk — has emerged for consideration. Although not included in the Shirt v Wyong formulation, it does feature in the tort law reform legislation in some Australian jurisdictions60 and the High Court has given some guidance as to its relevance in relation to the question of breach of duty,61 albeit that it has not spoken with only one voice. The issue was first considered in Romeo v Conservation Commission of the Northern Territory62 where a majority of the court regarded the obviousness of the risk — in this case the danger of an unguarded cliff edge — as one factor relevant to the question of breach of duty. Accordingly the notion that the commission should either have warned entrants of the risk was ‘neither reasonable or just’63 Subsequently, in Thompson v Woolworths (Qld) Pty Ltd,64 the court held that this factor is often ‘relevant to a judgment about what reasonableness requires as a response’ but, along with other considerations, the weight to be given to it will ‘vary according to circumstances’. This approach was affirmed in Swain v Waverley Municipal Council,65 with Gummow J noting that, as the obviousness of the risk is a question of fact, each situation has to be considered on its own merits, with previous cases carrying no precedential value. This theme was further developed in Mulligan v Coffs Harbour City Council66 and Vairy v Wyong Shire Council 67 (both cases being heard together) with Hayne J stressing that the obviousness of the risk cannot be used as a concept determinative of questions of breach of duty68 and that the focus of any inquiry is never on this factor alone, but must rather remain centred on the putative tortfeasor and what, in all the circumstances of the case, would be a reasonable response to the foreseeable risk.69 Moreover, Callinan and Heydon JJ regarded the obviousness of the risk in some cases to be of such significance as to be ‘overwhelmingly so, and effectively conclusive’.70 Most recently, in Kuhl v Zurich Financial Services Australia Ltd,71 French CJ and Gummow J made the point that ‘the more obvious the risk, the

[page 272] less required of the reasonable defendant to avoid or reduce that risk’. Some judges, notably McHugh and Hayne JJ, while not dismissing its relevance, have expressed their respective views that this factor ‘goes to the issue of the plaintiff’s contributory negligence, rarely to the discharge of the defendant’s duty’.72 Similarly, Kirby J in Neindorf v Junkovic73 warned against the danger of ‘placing so much emphasis on suggested obviousness’ such that it would ‘distort proper consideration of a defence of contributory negligence’, in effect rendering contributory negligence ‘a complete defence’. In view of these pronouncements, the obviousness of the risk clearly falls to be considered as among the factors relevant to the consideration of breach of duty although care must be taken in assessing its appropriate significance in the light of all other pertinent facts.74

The relation between standard of care and duty 8.11 Accepting, then, that it is a matter of law that the considerations just discussed are to be taken into account in determining whether the defendant has been negligent, one must ask the further question whether the standard of care has to be particularised in detail in terms of ‘duty’. A motorist fails to hoot at a crossing and is held liable in negligence for colliding with another motorist, the court holding that the motorist should have hooted. Would such a decision thenceforth be authority for the proposition that a motorist has a duty at law to hoot whenever approaching an intersection? The case of those who contend that negligence is made up of a series of such detailed rules of law governing conduct in particular circumstances is clearly put when it is said:75 Circumstances do tend to repeat themselves, so that guidance as to what is or is not a reasonable standard of care can, in a novel case, nearly always be derived from cases that have gone before.

The crucial point of this argument is whether the assumption on which it is based is well founded, that is, that the situations of fact in negligence are usually the same as some case previously decided, and not infinitely various. So, in running-down cases, it will usually be relevant to consider the speed of the vehicles, visibility, the state of the road, the distance within which the vehicles pulled up — but how often in any given case will these factors

exactly correspond with those of a previously decided case? Are not the special circumstances of each case almost always unique, so different in at least one material point, that a catalogue of duties based on conduct can hardly be compiled?

8.12 What, then, is the judicial practice in the matter? It is doubtful whether any consistent attitude can be found. There is no lack of cases where the courts have [page 273] forcefully rejected attempts to particularise duties. For instance, in Baker v E Longhurst & Sons Ltd,76 Scrutton LJ appeared to lay down a principle that persons driving in the dark must be able to pull up within the limits of their vision. Shortly afterwards, in another road traffic case, Lord Wright said of cases such as Baker v Longhurst:77 … that no one case is exactly like another, and no principle of law can in my opinion be extracted from those cases. It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts.

When counsel again relied on the dictum of Scrutton LJ, in Morris v Luton Corporation, Lord Green adopted the dictum of Lord Wright ‘in the hope that this suggested principle [of Scrutton LJ] may rest peacefully in the grave in future’.78 Lord Wright’s dictum was also espoused by the High Court in South Australian Ambulance Transport Inc v Wahlheim, Rich J adding the comment79 that, in motor accident cases, it is not only impossible but also improper to lay down hard and fast rules as to what conduct constitutes negligence. Customary rules of the road and even traffic regulations might well be material considerations but they cannot be regarded in all cases as determining factors. The House of Lords in Qualcast (Wolverhampton) Ltd v Haynes80 stressed that a judge’s reasons for finding want of reasonable care are matters of fact, not law, for otherwise ‘the precedent system will die from a surfeit of authorities’.81 That judges now give reasons for conclusions formerly arrived at by juries without reasons must not be allowed to elevate these decisions of fact into propositions of law. These sentiments were adopted by the High

Court in Teubner v Humble,82 and, on the strength of them, Windeyer J83 expressly refrained from discussing in any detail the similar fact cases put to the court by counsel for the appellant: Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application … That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence.

Subsequently, in Sydney City Council v Dell’Oro84 the High Court made the following point: The particular expression of the duty by relating it to the person and the circumstances in no way involves the translation into the enunciation of the duty of care of the acts and omissions which may in the particular case be found to be breaches of the duty. It is always a question of fact and never a question of law whether a particular act or omission is a breach of the duty of care.

[page 274]

8.13 The approach of the courts nonetheless varies. Some judges regularly preface their judgments by a general statement of the standard of care and then expressly treat the details as matters of fact going to breach, while others (in their language at least) particularise their statement of the duty. In Caminer v Northern and London Investment Trust Ltd,85 a rotten elm tree on the defendant’s estate had fallen, causing damage to a user of an adjoining highway; he sued in negligence. For Lords Reid and Normand the duty of an estate owner was to take such steps as a reasonable and prudent landowner would take, and the question was one of fact whether the conduct of the defendant infringed this requirement; for Lord Porter, on the other hand, the issue was whether there is a duty to lop middle-aged elm trees. In Workington Harbour and Dock Board v SS Towerfield (Owners)86 the liability of the port authority in respect of a ship which had run aground in the harbour fell to be decided. Lord Normand held that the duty was to exercise reasonable care to prevent the peril of damage to ships resorting to the harbour; Lord Porter expressed it as a duty to warn of the dangerous condition of the port. If those judges who use the term ‘duty’ as Lord Porter has done are to be taken to mean a duty in law, then one can only say that there is a sharp and important cleavage in the courts. But an observation of Lord Greene in Morris v Luton

Corporation raises doubts whether it can be assumed that such a legal duty is always intended by them:87 There is sometimes a temptation for judges in dealing with these traffic cases to decide questions of fact in language which appears to lay down some rule which users of the road must observe. That is a habit into which one perhaps sometimes slips unconsciously — I may have done it myself for all I know — but it is much to be deprecated, because these are questions of fact dependent on the circumstances of each case.

It is, then, impossible to be dogmatic on this point. In a few instances the courts have framed a duty in more specific terms.88 It may be that it is to some extent a matter of convenience to what degree the details of the standard of conduct are to be particularised as legal duties; it may even depend in respect of any specific category of duty on how the courts formulated the rule when the new category of negligence was first developed. It is submitted, however, that because of the tendency of facts to differ in some vital, although perhaps small, detail from case to case, it is undesirable to state conduct in terms of legal duty. Moreover, as intimated by the High Court in Jones v Bartlett,89 the attempt to formulate the legal duty with greater particularity may pre-empt the decision as to reasonableness. The question also arises of the appropriate level of specification to be adopted in analysing issues of existence of a duty and breach of duty. In Shirt v Wyong Shire Council, Glass JA indicated that the former ‘falls to be considered upon a higher level of abstraction than the latter’.90 This formulation, which has led to much comment in subsequent cases, perhaps most pertinently serves as a helpful reminder that the [page 275] enquiries as to existence and breach of duty should be kept separate. The point was emphasised by Gummow J in Vairy v Wyong Shire Council91 where he criticised the trial judge in the following terms for having merged the two issues: Whilst the distinction between duty and breach is most clearly understood in the context of trial by jury, preservation of the separation of the conceptually distinct issues of duty and breach is … of general importance.

A similar point was made by McHugh J in Graham Barclay Oysters Pty Ltd v Ryan,92 namely that, to formulate the duty in more specific terms invites error

because ‘it is likely to mix a question of law (whether a duty existed) with a specific question of fact (whether a breach occurred)’. The constituent elements of the tort of negligence thus become blurred, leading to the danger of the issue of breach being pre-empted93 or even inevitable.94 That is to say, the more precisely the duty is formulated, the more likely it is that it will be framed by reference to the particular breach alleged and the more likely it is that liability will be determined by hindsight.95 The aim, as stated in Kuhl v Zurich Financial Services Australia Ltd 96 is to formulate the duty in terms which are not so broad as to be devoid of all meaningful content nor so narrow as to obscure the issues required for consideration — the appropriate level of specificity thus depends on the circumstances of the case.

The Reasonable Person 8.14 Here, as in so many aspects of negligence, it is difficult to track down authorities precisely stating the law. The starting point is the dictum (of unchallengeable authority) of Alderson B in Blyth v Birmingham Waterworks Co:97 Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.98

The legal standard is not that of the defendant but that of a person ‘of ordinary prudence’,99 a person using ‘ordinary care and skill’,100 a ‘hypothetical’ person.101 Lord MacMillan has said: [page 276] The standard of foresight of the reasonable man … eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.102

Yet it is inadequate, if not question-begging, to say that the standard then is an objective one. The definition of the reasonable person is not complete unless the words ‘in the circumstances’103 are embodied. Plainly, these words may prevent the test from being wholly objective, for the boundary between the external facts and the qualities of the actor is ill defined. The attainment of objectivity is also undermined by the historically gendered nature of the

concept. While the courts and commentators alike are consciously moving to substitute the term ‘reasonable man’ by that of the ‘reasonable person’, a mere change in terminology is not, of itself, sufficient to achieve true objectivity. Indeed, without an accompanying change in the judicial mindset, the very real danger is that the term ‘reasonable person’ will simply operate as a cloak of objectivity and that all persons will continue to be judged by masculine standards rather than, as should happen, by a gender-neutral concept.104

Minors 8.15 Minors must, it seems, be treated as a category apart. In most cases involving children, the question of negligence has arisen in the context of contributory negligence: see 10.11ff. In this regard it has often been held that there is no rule of law that would preclude a child of any particular age from being capable of such negligence105 although it would be proper to presume, as a matter of fact, that a very young child is incapable of taking care of itself unless there is evidence that the particular plaintiff was capable of doing so.106 And as the court noted in Cotton v Commissioner for Road Transport:107 In the case of a young child the quantum of its capacity to take care is so much involved in the question whether such capacity as exists has been exercised that it is natural to expect that a tribunal of fact will take an indulgent view in considering the child’s responsibility in this respect.

Operating on the commonsense basis that children are obviously less capable of taking care of themselves than adults would be, minors have been held not guilty of contributory negligence where adults would, on similar facts, have been deemed to be so. Age is clearly a relevant consideration.108The test in these cases appears to be: [page 277] what degree of care for their own safety can be expected of minors of that particular age and experience?109

8.16 Decisions involving the minor as defendant are rare. This might in the

past have been attributable to the fact that minors, being without means, were not generally worth suing, although nowadays most insurance policies taken out by house-owners have a public liability extension which covers all members of the household. Or it may be easier in a given case to sue the parent rather than the child.110 The High Court in McHale v Watson has provided one of these rare decisions, Windeyer J at first instance111 taking into account the fact that the defendant was only 12 years old and, in dismissing the claim, holding that he could not reasonably be expected to show the same degree of foresight and appreciation of the risk that might have been required of an adult. On appeal a majority of the court agreed with him,112 holding that ‘strong support’ for his view was provided by the cognate decisions on contributory negligence.113 An unresolved question, in relation to the standard of care demanded of children, is whether the test is entirely objective or whether it will take into account the child’s actual mental ability, maturity and experience.114 The High Court pointedly remarked115 that, in taking account of the age of the defendant, it was applying an objective standard because childhood, as such, is not an idiosyncrasy. The defence of childhood is therefore not personal to the defendant; it is rather to be seen as ‘characteristic of humanity at [the defendant’s] stage of development and in that sense normal’. Beyond this, however, the matter is not entirely clear. One view, exemplified by Kitto J, would deny to children as it would to adults the right to plead that the harm caused was due to being abnormally slow-witted, quick-tempered, absentminded or inexperienced.116 An alternative view, considered by Owen J,117 holds that the capacity of the particular child to appreciate the risk must be taken into account so that more will be expected of a child of superior intelligence and experience for its age than of one who is less well developed. It may be more accurate to regard McHale v Watson as having adopted a standard of care which is partly objective and partly subjective in its nature.118 In practical terms this would entail [page 278] asking whether the defendant had exercised the care reasonably to be expected of an ordinary child of the same age, intelligence and experience.119

Old age; physical and mental infirmities 8.17 It is unclear to what extent, if at all, the standard of the reasonable person will be adjusted by the courts to allow for the incapacities and infirmities of individual adults. It may be that persons with mental disabilities should be treated by law in the same manner as minors.120 What little judicial authority121 there is in Australia suggests, however, that insanity is not a defence and that insane persons should bear responsibility for damage caused by their tortious acts on the basis that, where one of two innocent persons must bear a loss, the loss should fall on the actor. Following this line of reasoning, the court in Carrier v Bonham122 applied an objective standard of care to a chronic schizophrenic sufferer who attempted suicide by stepping in front of a bus, holding him liable in negligence. McPherson JA distinguished this case from McHale v Watson, noting that, as unsoundness of mind is not a normal stage of development ‘it attracts … sympathy but not … immunity’.123 Consider whether the standard of care is (or should be) affected if the defendant is elderly, or deaf, or minus a limb. There is little authority to the effect that the standard is so affected where contributory negligence is being considered. The High Court has held that the law permits a subjective test where the issue is one of contributory negligence; accordingly, persons suffering from a disability are required only to take such reasonable care for their own safety as their infirmities permit. A one-legged person crossing a road would not be expected, in the face of danger, to demonstrate the agility of a two-legged person. And, in Daly v Liverpool Corporation124 it was held that in deciding whether a 67-year-old woman was guilty of contributory negligence in crossing a road, one had to consider a woman of her age, not a hypothetical pedestrian. The point will be in issue only rarely in respect of the standard required of defendants for the following reason. Persons with such disabilities will usually be negligent, not because of want of care at the time of the accident, but because, being aware of their disabilities, they allowed themselves to be in the situation; a deaf motorist who collides with another car through not hearing the horn of the other, though not negligent in not hearing it, might be considered negligent in driving at all when deaf. Yet when this issue has to be faced squarely, it may be expected that the courts will follow the example of contributory negligence. If, for example, a blind

person walked on, and damaged, a valuable package on the pavement in circumstances which would have amounted [page 279] to lack of care on the part of a fully sighted person, he or she should not be liable in negligence if, judged by the standards of the blind, reasonable care was taken.125

8.18 It is frequently stated that defendants’ physical characteristics, but not their mental powers, must be considered.126 This physical/mental division is open to the objection that it does not meet the case of children; the statement of Holmes is therefore preferable:127 When a man has a distinct defect of such a nature that all can recognise it as making certain precautions impossible, he will not be held answerable for not taking them.

The idea of making the standard of care dependent on visible attributes has the further merit of providing a clue to the attitude of the courts. One might expect them to take into account people’s observable physical disabilities, and yet to be reluctant to embark on an assessment of their mental powers — to consider the latter would be inconsistent with their customary aversion to assessing problems of psychology and the like.128 Any observable mental or physical disability of the plaintiff may, additionally, be a material factor in determining whether the defendant was negligent. In Cotton v Commissioner for Road Transport and Tramways129 it was held that the driver of a vehicle is entitled to act on the assumption that pedestrians in the vicinity who have the appearance of ‘normal’ adults will take normal precautions for their own safety. If an accident occurs only because the pedestrian, who is in fact suffering from a ‘hidden’ abnormality, suddenly and without warning acts abnormally, the driver will not be at fault. Quite different considerations apply and special precautions are called for where the driver is able to see that he or she is approaching a pedestrian who is in some way abnormal, for example, one who appears to be drunk, blind or otherwise disabled.

8.19 Where the defendant is a driver of a vehicle the courts are reluctant to allow for incapacity, so determined are they, with their policy of facilitating speedy and cheap settlement of road accident claims, to apply objective

standards of care.130 An extreme example of this approach is to be seen in Roberts v Ramsbottom131 where the defendant, aware only that he was feeling somewhat dizzy, got into his car and set off on his journey. In fact he had suffered a slight stroke which had impaired his consciousness and after a few minutes on the road he collided with the plaintiff’s vehicle. It was held that, even though his carelessness had resulted from impaired consciousness of which he was unaware, he was liable in negligence. His standard of care while on the road was to be assessed objectively disregarding any mental incapacity short of automatism, just as any physical infirmity or inexperience would have been disregarded if such a defendant had elected to drive. Courts in Australia and New Zealand, while never losing sight of the objective standard, have, on the whole, been prepared to accord drivers in similar [page 280] circumstances rather more compassion. In two cases132 drivers who have been involved in accidents as the result of unexpected, sudden and incapacitating bee stings have been exonerated from liability on the grounds that neither they nor any other reasonably prudent driver could have anticipated the incident nor be expected to have maintained adequate control of the vehicle. Proceeding on the basis that, when a person is suddenly and without warning thrown into a critical position, due allowance should be made for this, but not too much,133 the court in each case held that on the facts before them the drivers had been thrown off-balance at a critical moment and had had insufficient time to avert the ensuing accident.134 These decisions are consistent with cases135 where the defendant driver has been held liable even though subject to a sudden and unavoidable onset of pain, but where there was ample opportunity to react sensibly to the emergency, for example, by slowing down or safely pulling over to the side of the road. The court in Roberts v Ramsbottom136 held, as an alternative basis of liability, that the defendant in a state of automatism at the time of the accident would still be negligent if before the accident happened he or she had been aware of some disabling symptoms and, presumably, should not have attempted to drive at all. In a similar fact situation, however, the New Zealand Supreme

Court137 exonerated a driver who had fainted behind the wheel of his car and who had set out on his journey aware that he was suffering from a high temperature and other disabling symptoms. The court paid due regard to the fact that, on the day, the defendant had felt much better and that, on previous days when his condition had been worse, he had not fainted.

Intelligence 8.20 The defendant’s actions must conform to certain criteria expected of a person of normal intelligence in a given situation. It is no defence that defendants acted ‘to the best of their own judgment’, if their ‘best’ is below that of the reasonable person.138 It is presumed that a person whose reactions are slower than average is not thereby excused. Probably, a person whose intelligence is superior or whose reactions are quicker than average is not liable for failing to use those above-average qualities.139 In Rust v Needham140 the appellant advanced the argument that, even if the average reasonable person might not have used a seatbelt at the time of the accident, the respondent, who was well aware of the desirability of wearing one, should be held to a higher standard of care. The court rejected this as an attempt to set up a subjective standard of care, based not on what the ordinary and prudent person would have done but on whether the respondent fell short of the standard of care habitually adopted by himself or herself in such situations. [page 281]

Knowledge 8.21 Two branches of knowledge must be considered separately: the first, that of memory and experience. If X had been on a certain highway several times, and a reasonable driver who had been there as often would know that it was busy, then X also is expected to know, even though X’s memory is so poor that X does not remember it. Similarly, one is deemed to know those things which adults from their experience are expected to know: that some things easily explode, that others burn, that there is a law of gravity — this

minimum amount of knowledge of matters of everyday experience one is deemed to possess.141 There is one refinement of this rule: where, in the circumstances, the status of the defendant is relevant then the standard is that of a person in that position;142 so, in Caminer v Northern and London Investment Trust Ltd the knowledge required of a land-owner with regard to elm trees on his estate, their proneness to disease, lack of wind resistance and the like, was of a standard between that of an urban observer and a scientific arboriculturist.143 In The Wagon Mound (No 2)144 the Judicial Committee of the Privy Council held the shipowner liable for a fire caused by discharging oil in Sydney Harbour on the basis that the chief engineer should have known that the discharge created a real risk of the oil on the water catching fire.

8.22 Secondly, what knowledge of the facts and surrounding circumstances must the defendant have? There is no excuse for failing to observe what a reasonable person would have observed — a dock authority which did not know, but ought to have known, that the dock was unsafe, was negligent.145 Further, even if the defendant could not be expected to have personal knowledge, he or she may be required to obtain and follow expert advice: the landlord of a block of flats must therefore consult a specialist engineer about the safety of the lift.146 It is clear that actual knowledge of the circumstances on the part of the defendant increases the standard of care imposed,147 but it does not necessarily follow that the greater one’s memory or experience the greater is the measure of the care imposed.

8.23 Knowledge, in particular expert knowledge, does not remain static over the years. Advances in medicine, science and technology lead to constant revision and improvements in safety standards. The courts expect employers,148 landlords149 and others,150 especially those with specialised skills, to keep abreast of these advances. It [page 282] would, nevertheless, be unreasonable to penalise them for advances made after (and perhaps arising out of) the accident but prior to trial. As Lord Denning remarked in Roe v Minister of Health151 when a patient claimed in respect of an injury resulting from a medical accident which had never before

occurred: We must not look at the 1947 accident with 1954 spectacles … It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure … Every advance in [surgical] technique is also attended by risks. Doctors, like the rest of us, have to learn by experience: and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right.

Accordingly, the test is whether the defendant had taken adequate and reasonable precautions in the light of the state of medical, scientific or technological knowledge prevailing at the time of the accident.152

Skill 8.24 It has been seen that a person’s conduct must conform to the standard of a person of normal skill and intelligence. Moreover, persons who represent themselves as having attained standards of skill either in relation to the public generally, for example, by driving a car,153 sitting on the board of a company in the capacity of either an executive or non-executive director,154 or in relation to some person for whom they are performing a service, are required to show the skill normally possessed by persons exercising and professing to have that skill.155 A doctor failing to diagnose a disease will be negligent even if acting to the best of his or her skill if a reasonable doctor would have diagnosed it.156 One must, in this class of case, be careful to ascertain exactly what skill the defendant held himself or herself out to have. Where, for example, the plaintiff contracts a disease after having her ears pierced by a jeweller rather than a doctor, the jeweller is required only to show the skill of a jeweller doing such work, not that of a doctor.157 [page 283] In Wells v Cooper158 a householder fitted a new door handle so insecurely that the plaintiff, when pulling it, lost his balance and was injured. The English Court of Appeal held that the householder was required to show the standard of care, not of a professional carpenter nor of a person having such skill as the defendant actually possessed, but that of a reasonably competent

carpenter doing such a trifling domestic job.159 The standard of care expected of learner-drivers, however, is to be measured by the same objective standard demanded of all drivers towards other road users. The High Court in Imbree v McNeilly,160 over-ruling Cook v Cook161 in favour of the decision in Nettleship v Weston,162 has now held that this objective standard pertains even in relation to a driving instructor with full awareness of the learnerdriver’s lack of skill and experience,163 such awareness being an insufficient reason for reducing the standard required and given the practical difficulties inherent in ascertaining and applying any lesser standard.164 By holding the householder to the standard of care which it did, Wells’ case also illustrates the point that it may be negligent for an unskilled individual to undertake a task calling for special skills; in such a situation the individual should seek expert help or advice. In Papatonakis v Australian Telecommunications Commission165 a telephone linesman died of injuries received when a cable he had been called on to fix and which had been installed by an unskilled householder unexpectedly gave way. In the course of discussing the question of foreseeability of the risk of injury, Deane J held:166 The evidence indicated that the installation of a Telecom extension line is a skilled function for which special materials are required, together with some understanding of the properties of those materials. Having interfered with such an installation with which an unskilled person was not properly qualified to tamper, Northern is not entitled to claim immunity from liability for the likely consequences of its meddling on the ground that the ordinary person would not foresee them. A reasonably prudent occupier does not rely merely on his own judgment and skill in a situation where technical expertise which he does not possess is required. He should obtain and follow proper technical advice or employ a qualified person to perform repairs requiring expert skill.

8.25

The duty to seek out expert assistance arises only where the circumstances are such that it is foreseeable that, in its absence, third parties or their property are put at risk. This is a question of fact and varies from case to case. The duty has been held to exist where the defendant knew or ought to have known that a wheel-bearing [page 284] on a trailer was faulty and that it had no washer in the assembly, and that if

the bearing collapsed, as was likely, there was nothing to prevent the wheel coming off. Consequently, where this risk materialised, causing a fire in roadside grass, leading in turn to extensive damage to property, the defendant was held liable for failing to have the wheel bearing expertly repaired, and for relying instead on the assistance of an equally incompetent brother-in-law.167

8.26 Skills, like levels of knowledge, are not static attributes — for example, doctors today possess different skills from their counterparts a century ago. Because of this the standard of care expected of skilled persons cannot be more precisely defined than by saying that they must demonstrate that degree of skill and diligence required of a similarly skilled person in the circumstances.168

8.27 Some professionals and other skilled persons will, in practice, be more skilled than others but the law looks only to the median skill. One of the main reasons for this lies in the practical difficulty of assessing a particular individual’s actual skill or experience. To make out a case of negligence against a doctor, legal practitioner169 or other professional, it is necessary to show a departure by the defendant from the standards of the ordinary skilled practitioner,170 one guide propounded by the courts,171 albeit not an infallible one,172 being whether the defendant acted in line with a practice accepted as proper by a responsible body of practitioners skilled in that art; a guide that is now enshrined in legislation in some Australian jurisdictions.173 Thus, doctors will not be negligent by reason only of their inability to measure up to the standard of the most highly qualified practitioners. Accordingly, it is neither necessary nor appropriate to lead evidence in such a case of the standard set by leaders in the field unless the practitioner in question professes to have and to exercise that level of skill.174 Persons who do not represent themselves as having [page 285] special skills are not liable when showing only average skill in the circumstances, although in fact possessing special skills.175

8.28 Judges minded to hold defendants not liable have from time to time achieved this by characterising their conduct as merely an error of

judgment.176 The House of Lords in Whitehouse v Jordan scotched that device by holding that nothing prevents an error of judgment from being a failure to exercise reasonable skill and so constituting negligence.177 There remains nevertheless within this framework ample scope for genuine differences of opinion.178 Whether an error of judgment is negligent will depend very much on the particular circumstances. Where, for example, negligence is alleged in the course of a sporting event, the fact that the object of competitive sport is to win and that spectators attend these occasions to see competitors exhibit their sporting skills often under tense and trying conditions will be relevant.179 This does not mean, though, that deliberate foul play leading to the injury of another player will be condoned. In Condon v Basi180 the plaintiff footballer successfully sued in negligence when he suffered a broken leg as a result of a tackle by the defendant found by the referee to be serious foul play. Here the defendant’s desire to win was held not to excuse his behaviour. The test postulated by the court was — did the defendant show that degree of reasonable regard for the safety of others to be expected of a competent player of his class?

The circumstances of the plaintiff 8.29 The defendant’s actual knowledge of the particular circumstances in which the plaintiff is placed may be taken into account in assessing what the reasonable person would have done, so that the measure of care owed to a woman known to be pregnant181 or to an employee known to have only one eye,182 or to a novice employee183 may be greater than it otherwise would have been. The courts may thus take account, if they deem it appropriate, of the particular susceptibilities of the plaintiff in setting the required standard of care. This is illustrated by Haley v London Electricity Board184 when the House of Lords held that the board, in conducting operations on a city highway, should have foreseen that blind persons might walk along the pavement and that, therefore, it owed a duty to take those precautions reasonably necessary to protect them from harm; on the facts it was held liable although a sighted person would not have been injured in consequence of its operations. [page 286]

Of course, if the defendant neither knows nor ought to know of these circumstances, they do not affect the measure of the duty. As Lord Sumner has said:185 … a measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others, who know or ought to anticipate the presence of such persons within the scope and hazard of their own operations.

The principles of the preceding paragraph illustrate a general principle relating to standard of care: that the particular circumstances may always be material. For instance, a pedestrian is injured by a motorcycle: if the defendant is a competitor in a race and the plaintiff a spectator, the defendant is entitled to take risks which would have amounted to negligence had there been no race, but even then the behaviour may be so foolhardy as to constitute negligence.186

Degrees of care 8.30 It follows from what has been discussed that the common law knows no sharp categories of care — for instance, it has no division corresponding to the two divisions in the civil law of gross carelessness and slight carelessness.187 No more can be said than that the ‘degree of care and diligence which a … [defendant] must exercise corresponds with the degree of negligence for which he is responsible’,188 and that the defendant must do what is reasonable in the circumstances. Any deviation from the norm will render the defendant fully responsible for all resulting injury or damage, subject, of course, to the rules of remoteness discussed in 9.7.

Reasonable anticipation 8.31

In decided cases there is a recurrent emphasis on what could reasonably be anticipated or foreseen as constituting the standard of reasonable care.189 ‘It is elementary law that a person cannot be expected to take precautions against dangers which he or she cannot reasonably be expected to anticipate.’190 As stressed by the High Court,191 the question of a breach of the duty of care is to be determined by [page 287]

looking forward to the prospect of a risk of injury and not by looking backwards to what actually happened. The adoption of any other approach carries with it the danger of categorising every risk that actually comes to fruition as one that ought to have been guarded against. This serves to emphasise both that one must not look at the circumstances in the light of what has in fact happened192 and that precautions taken by the defendant after the accident do not, of themselves, support a conclusion of breach of duty. They may, nonetheless, be evidence of what was reasonably practicable,193 that is, what could (rather than what should) have been done194 which, in the absence of other balancing factors being pleaded, may give rise to an inference that the subsequent measures were not outweighed by any disadvantages.195 It does not automatically follow (nor is it necessary to prove) that every risk which is reasonably foreseeable will also be likely to happen. The difference between these two concepts was discussed in Wyong Shire Council v Shirt.196 Using Bolton v Stone197 as an example of a risk that was reasonably foreseeable though quite unlikely to occur, Mason J held that:198 … when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.199 Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

Foreseeable negligence by third parties and plaintiffs 8.32 It will often be difficult to decide, when there has been an intervening act of a third party, whether the defendant’s act or that of the third party has caused the damage suffered by the plaintiff. It is important to note that the issue of causation becomes material only after the failure of the defendant to take due care has been proved. Whether there has been such a failure will frequently depend on whether the defendant could reasonably have anticipated the acts or omissions of the third party. If the plaintiff is injured because a third party has done something which the defendant could not reasonably foresee would be done, the defendant is not liable.200 To what extent, though, may a defendant be excused from liability for relying on

[page 288] the assumption that a third party will act reasonably? In London Passenger Transport Board v Upson,201 the House of Lords reversed the ruling of Lord Greene MR in the court below that drivers are entitled ‘to drive on the assumption that other users of the road, whether drivers or pedestrians, will behave with reasonable care’.202 Lord Uthwatt added:203 It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take.

Further to this, Napier CJ in Municipal Tramways Trust v Ashby held204 that the requirement of reasonable care (which he described as a balance between the two extremes of excessive caution and temerity) would not be satisfied where drivers tailored their own actions so finely as to allow no margin of safety for the mistakes or thoughtlessness of others.205 Nor can one excuse oneself by relying on another to do an act unless that reliance were reasonable. In Sibley v Kais the point was made206 that this is a question of fact to be decided in the light of the particular circumstances of the case. It is not reasonable for driver X approaching an intersection to assume that driver Y will invariably perform his or her duty under a traffic regulation by, for example, giving way to the right. Reasonable care requires X to be in a position to bring X’s own vehicle to a halt if necessary or take other steps to avoid an impact. Where two ships collided, the High Court, in Baggermaatschappij Boz & Kalis BV (trading as Westham Dredging Co) v Australian Shipping Commission,207 refused to exonerate those in control of a dredge from liability just because they had relied on ‘the almost invariable practice’ of the signal station to notify an incoming ship of the dredge’s intentions. Applying the Sibley v Kais criteria the court held that the operators of the dredge should not have overlooked the possibility that the signalman might be guilty of some neglect, oversight or inadvertence, as indeed he was.208

8.33 These principles are not limited to foreseeable acts of negligence by third parties; they have regularly been applied to situations where it is foreseeable that the plaintiff might act carelessly. This was acknowledged by the High Court in Bus v Sydney County Council 209 when it stated that:

… the law [nowadays places] an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed. That possibility is now recognised as being relevant to the standard of

[page 289] care owed by an employer to an employee and as well generally in situations in which a duty of care exists.

This state of affairs most commonly arises in situations involving children, for example, when guns and other weapons are left lying around,210 where employers are sued by their employees, or in traffic accident situations.211 Dismissing the argument that employers have no control over an employee’s negligence or inadvertence, it has been held212 that the standard of care expected of the reasonable employer obliges the employer to take account of the possibility of inadvertent or negligent behaviour on the part of employees,213 especially where the work involves an element of repetition or strain.214 This line of authority sits somewhat uneasily with the more recent line of High Court authority215 culminating with Gummow J’s decision in Dederer’s case216 that a roads authority is obliged to exercise reasonable care so that the road is safe ‘for users exercising reasonable care for their own safety’, the essential point being that the authority does not owe a more stringent obligation towards careless users as compared with careful ones. This difference in approach cannot entirely be explained away by regarding (as did the judge) the plaintiff’s inadvertence as relevant to the question whether a duty of care is owed in the first place (scope of duty) rather than its breach.217 It does, however, resonate with the line of authority bearing on the ‘obviousness of the risk’.218

General practice of the community 8.34 Commonly, defendants will attempt to support their claims to have demonstrated due care by showing that they conformed to the common practice of [page 290]

those engaged in the activity in question. Alternatively, evidence may be led by the plaintiff to show that a practice adopted by the defendant involved a departure from standard practice and so was negligent.219 The evidence is relevant and is regarded by courts as an important evidentiary fact.220 In one early case a specialist who failed to diagnose the complaint of the plaintiff was held not to have been negligent when using the normal methods of British medical specialists, although the use of an instrument usually employed in the United States might have resulted in a correct diagnosis.221 In Bolam v Friern Hospital Management Committee222 McNair J even went as far as to suggest that doctors who act in accordance with a practice sanctioned by a responsible body of medical opinion could never be regarded as negligent, even if other doctors adopted a different practice. Yet evidence of general practice is not necessarily decisive; the general practice may be shown to be compromised223 or negligent224 as where in a given field it has not kept pace with new developments and safeguards. In Thompson v Smiths Shiprepairers (North Shields) Ltd225 the defendant employers were held liable, despite adhering to general industry standards, for impairment of hearing resulting from failure to provide employees with protective equipment, once this became available and once there was general community awareness of the dangers of excessive noise.226

8.35 Australian and New Zealand courts227 (as distinct from legislatures which, as will be mentioned in a moment, have limited the effect of the judicial approach) have refrained from following the Bolam line. While acknowledging the utility of evidence of compliance with general practice, nevertheless the courts have preferred the view of King CJ in F v R:228 [page 291] The ultimate question … is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.

Accordingly, whatever evidence is led of general practice, the plaintiff must be afforded the opportunity to persuade the court that the practice does not ensure an adequate standard of care.229 However, the evidentiary

presumption that arises from complying with common practice should be displaced only where persuasive reason exists for concluding that the common practice falls short of what reasonable care requires.230 The High Court has now endorsed these views.231 In Rogers v Whitaker it held that the question whether a doctor should have advised a patient of the risks inherent in a medical procedure is for the court to decide and could not be resolved by reference to the acts or views of a responsible body of medical opinion,232 although it acknowledged that in the areas of treatment and diagnosis such views may well be influential or even decisive.233 The relevance of professional practice and opinion was not in issue; what was, however, denied was its conclusiveness,234 in relation not only to the warning of risks but more generally to what constitutes acceptable medical practice.235 Professional or industry practice thus remains relevant in assessing the adequacy of the response to the perceived risk.236 However, most of the legislatures in Australia have modified these principles, in relation to the conduct of all237 professionals, by providing that such a person ‘does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice’.238 This legislatively mandated standard of care, which is intended to preclude the courts from ‘imposing their own views as to what is negligent practice in many professions’,239 is subject to the proviso that it will not apply if the court considers that the peer professional opinion relied on by the defendant is irrational or contrary to any statutory provision. However, if no evidence is led as to peer professional practice, the court will decide the matter in the [page 292] same way as it has always done.240 And the legislation expressly provides that it does not apply in connection with the provision (or failure to provide) information or advice,241 with the consequence that the actual decision in Rogers v Whitaker remains unaffected thereby. Failure to conform to a standard imposed by a statute, although of course it may constitute a breach of statutory duty, is not in itself conclusive evidence of negligence;242 it may,

however, sometimes be prima facie evidence.243

Proving Negligence Province of judge and jury; law and fact 8.36 In some states of Australia actions in negligence are still tried by the combination of judge and jury, rather than by a judge or judges sitting alone. The judgments in such cases tend meticulously to mark off matters of law and fact from one another, allocating matters of law for the judge and those of fact for the jury. This distinction undoubtedly oversimplifies the situation, but it is nonetheless a reasonably accurate description of the respective tasks of judge and jury. And, despite the substantial decline in the use of juries in civil trials, an understanding of this allocation of duties remains essential to a proper appreciation of the law of negligence.244 Given this situation, it is useful to summarise the respective provinces of law and fact in negligence. The following are matters of law. 1. All questions of duty — was the duty owed to the plaintiff, was it within the hazard? and the like. 2. The standard of care — what is the standard, and is there any evidence of failure to conform to it?245 3. The principles to be applied in determining whether the damage was too remote, and whether there was any evidence of such damage; whether any recognised heads of damage have not been taken into account. Matters of fact are: [page 293] 1. Resolving conflicts in the evidence and determining what the circumstances were and what the parties did. 2. Evaluating the conduct of the parties in the light of the facts found and deciding whether it constituted a failure to take care, having regard to the

standard of care required of the defendant.246 3. Deciding, in the light of the facts found, whether the damage was caused by the defendant and the extent of the damage,247 and the assessment of damages. If an appellate court is concerned with an appeal from a judge sitting with a jury, it considers only the several matters defined above as matters of law. The jury’s ‘factual’ verdict is assailable only on the grounds that it failed to comprehend the evidence or flagrantly disregarded it.248 It is not sufficient merely that the court would have come to a different conclusion, as this would fail to recognise the jury’s role as a finder of fact.249 If, on the other hand, the court is hearing an appeal from a judge sitting without a jury, it is not so restricted:250 [It] has … jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution.251

This is particularly so if the trial judge’s finding of fact depends to any substantial degree on the credibility of a witness,252 though not necessarily limited to such a situation.253 The court should be ‘satisfied that any advantage enjoyed by the trial judge, by reason of having seen and heard the witness, could not be sufficient to explain or justify the trial judge’s conclusion’,254 before it disturbs any findings of fact.255 On the other hand, where, as often happens, the facts are not in dispute, but the case rests on the inference to be drawn from them, an appellate court256 is in as good a position as the trial judge to decide the case.257 [page 294]

The ‘no evidence’ rule 8.37

The distinctive functions of judge and jury also facilitate the application of the ‘no evidence’ rule.258 After hearing the evidence for the plaintiff, the judge may be of the opinion that no evidence of negligence has been adduced to support even a prima facie finding of liability; whereupon the judge has the right to withdraw the case from the jury.259 The right of an

appellate court to examine the whole of the evidence is then, in effect, taken away, but it may still order a new trial if it disagrees with the trial judge.260 Even if the trial judge could not have withdrawn a case from the jury because the ‘no evidence’ rule had not been satisfied, an appellate court might still direct a new trial or a verdict for the defendant on the ground that the verdict of the jury for the plaintiff was one which no reasonable person would have found on the facts or, as it is often put, that the verdict was against the weight of the evidence.261 A ‘no evidence’ objection may be raised on appeal notwithstanding that it was not raised at trial, provided that the objection is one which, if taken at trial, would have been fatal to the plaintiff’s case.262 Where the ‘no evidence’ rule is applicable, this enables the court to direct a verdict for the defendant where the onus is on the plaintiff or to direct a verdict for the plaintiff where the onus is on the defendant. But once there is evidence, no matter how weak, that would support a prima facie finding of negligence, the judge must allow the case to go to the jury.263 It will then be up to the jury whether to accept or reject the evidence, irrespective of how strong the rebuttal evidence for the defendant may be,264 for to rule otherwise would be to usurp the legitimate function of the jury. This rule, which marks the furthest limit of the power of the judge over the jury to set aside on a point of ‘law’, has been stated by Lord Blackburn in the following terms:265 … it has always been considered a question of law to be determined by the judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter-evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether and how far the evidence is to be believed. And if the facts, as to which evidence is given, are such that from them a further inference of fact may

[page 295] legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, as a matter of law whether from those facts that farther inference may legitimately be drawn.

Standard of proof; discharging the burden 8.38 Before a jury is entitled to find for the plaintiff, it must have before it

sufficient evidence of every fact in respect of which the burden of proof lies on the plaintiff.266 In this connection it is not sufficient to prove merely that the risk of injury was reasonably foreseeable; there must, additionally, be evidence to enable a jury to find that there existed a reasonably practicable means of avoiding that risk or reducing the consequences of an injury.267 Simply because a foreseeable risk materialises does not, of itself, establish unreasonableness.268 A mere scintilla of evidence will not suffice;269 the evidence must be strong enough to justify reasonable men and women in accepting it as establishing the facts sought to be proved.270 Direct proof is not required, but in its absence the plaintiff must adduce circumstantial evidence from which the jury can reasonably infer negligence.271 A mere assertion is not sufficient to discharge this onus.272 Inferences from proven facts are just as much part of the evidence as those facts themselves.273 The defendant’s failure to call any evidence cannot, as such, be used as proof of negligence; that is to say, it cannot be used to fill a gap in the plaintiff’s evidence;274 or, put another way, it cannot of itself convert suspicion into inference.275 The court may, nevertheless, take such a failure into consideration in assessing the evidence,276 especially where the defendant was in the best position to control or prevent the incident.277 Proof of default followed by injury does not show that the default caused the injury, nor will a plaintiff prove the case ‘merely by showing that it was possible that [page 296] his injury was caused by the defendant’s default’.278 The standard of proof required in negligence actions was laid down by Dixon J in Briginshaw v Briginshaw279 as the need for an ‘actual persuasion’ of the facts culminating in a finding of negligence. More often, the standard is stipulated by reference to the phrase ‘balance of probabilities’.280 Kitto J in Nesterczuk v Mortimore expressed the view281 that if the court is satisfied on the balance of probabilities of the negligence of the defendant, then it has the persuasion to which Dixon J referred.282

8.39 Actions in negligence more often centre round the inferences to be drawn from the proved facts.283 Where the facts given in evidence are equally

consistent with an inference of negligence or one of no negligence, then, as a matter of law, there is no evidence on which a verdict of negligence can be sustained.284 The evidence presented must do more than give rise to conflicting inferences of equal degrees of probability, for, if they do not, the choice between them becomes a matter of mere conjecture.285 The case of West v Government Insurance Office of New South Wales286 will serve as an example. The appellant was injured in a motor vehicle collision in which the driver of the other vehicle was killed. The appellant sought damages from the GIO, as the authorised insurer of the vehicle driven by the deceased. A majority of the High Court upheld the finding that the appellant had failed at the trial to establish negligence on the part of the deceased. This finding followed from the fact that the available evidence was insufficient to allow an inference to be drawn one way or the other and the court was accordingly not in a position to arrive at the conclusion either that the appellant had failed to observe the stop sign or that the deceased had failed to obey the ‘give way to the right’ rule. In reaching this conclusion, the court chose to follow the approach adopted by Dixon CJ in Jones v Dunkel, where he said:287 In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved

[page 297] in evidence and one which they establish to the reasonable satisfaction of a judicial mind … The law does not authorise a court to choose between guesses … on the ground that one guess seems more likely than another … The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

8.40 The above rule does not apply to matters of direct proof: if there is a conflict of evidence on such matters, even if the judge prefers the evidence of one party, the matter must be left to the jury to decide; but if, given the facts as proved, it is a mere guess what inference can be drawn from them, as a matter of law there is no evidence. Luxton v Vines,288 although a case on causation and not on breach of duty, brings out this point. The plaintiff, L, took ill while riding his motorcycle along a road one night, and, leaving the cycle at the roadside, set out on foot to the nearest town, keeping to the extreme left side of the road. After walking some 400 yards, L looked back

and saw the lights of a motor car coming towards him from the rear. The next thing he remembered was lying on the roadway, in intense pain. He had sustained severe injuries, which, according to medical evidence, were more consistent with his having been struck by a vehicle with considerable violence while standing upright, rather than having been run over while lying on the road after falling there unconscious through illness. In an action against the nominal defendant, L alleged negligence against an unidentified motorist. A majority of the High Court held that the evidence was not sufficient to support a finding of negligence; no affirmative inference of fault could reasonably be made and any answer lay in the realm of guesswork and conjecture.289 The facts proved must give rise to an inference, not a mere conjecture. The evidence may lead to the emergence of a number of hypotheses, some of which imply fault on one side, others implying fault on the other, or perhaps on both sides. Hypotheses of this kind are not inferences.290 The House of Lords in Jones v Great Western Railway Co admitted291 that the dividing line between these two concepts is elusive292 and often a difficult one to draw, an observation borne out by the split decisions in so many cases of this type.293 Their Lordships nonetheless defined a conjecture as a ‘mere guess’, which, even if plausible, is of no legal value and which must be discounted. An inference, by comparison, is ‘a deduction from the evidence’ and if reasonable may amount to legal proof. The legal inference need not lead to certainty on the part of the court, but it must at least create a reasonable probability of negligent conduct.294 In EMI (Australia) Ltd v BES295 an employee was killed when his car swerved off the road and struck a telegraph pole. Twelve days previously the deceased had been injured when a ladder fell on his head while at work. Medical evidence had suggested a variety of [page 298] possible causes of death, including the theory that the blow from the ladder had led to microscopic haemorrhages within the brain. Evidence was led to the effect that the deceased had consumed large doses of Bex powders, a form of analgesic, in the time between the accident at work and the fatal

accident. Lay evidence enabled the consumption of the powders to be elevated to the probable cause of death. This was evidence of persistent headaches, loss of appetite, dizziness and moodiness. In consequence the plaintiff was held to have established, on the balance of probabilities, the nexus between one possible medical cause and the resultant death.296

Res Ipsa Loquitur Requirements 8.41 In Scott v London and St Katherine Docks Co297 the plaintiff, a customs officer, while standing near the door of the defendants’ warehouse, was injured when some bags of sugar fell on him. The defendants called no evidence but the judge directed the jury to find a verdict for them on the ground of lack of evidence of negligence on their part. On appeal a new trial was directed. The court justified this direction of a new trial in the following terms, which have since become known as res ipsa loquitur:298 There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

In the past, courts in England tended to elevate res ipsa loquitur to the status of a principle of substantive law or, at least, a doctrine. Australian courts have generally been wary of such an approach. In Mummery v Irvings Pty Ltd the High Court made it clear299 that res ipsa loquitur is not a legal principle; its significance is rather ‘as a general index to those special cases in which mere proof of an occurrence causing injury itself constitutes prima facie evidence of negligence’. Consistently with this view, Barwick CJ in Fredrichberg’s case described300 the res ipsa loquitur ‘doctrine’ as: … no more than a process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant; or perhaps, as it might more accurately … be expressed, where, in the opinion of the judge, the jury would

[page 299]

be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person.

The 1970s witnessed a decisive swing by the English Court of Appeal towards the view that res ipsa loquitur is nothing more than a convenient phrase to describe what is essentially a commonsense approach to the assessment of the effect of evidence in certain circumstances.301 The Privy Council302 has also demonstrated a move in the same direction. These developments have brought English law more into line with that in Australia. Res ipsa loquitur should thus be regarded as no more than a form of reasoning about proof,303 leading in some instances to an affirmative conclusion of fact, but, as Dixon CJ warned in Franklin v Victorian Railways Commissioners,304 ‘whenever the question is whether the proofs adduced suffice to establish an issue affirmatively, all the circumstances must be taken into account and the evidence viewed as a whole’. It is still necessary to examine the content of res ipsa loquitur, but always with these warnings in mind. The three separate requirements discussed below must be satisfied.

The rule is dependent on the absence of explanation 8.42 This merely means that if the court finds on the evidence adduced how and why the occurrence took place, then there is no room for inference.305 The occurrence at this point ceases to speak for itself and the question becomes whether, having regard to the now known cause, the defendant is negligent. So, in Barkway v South Wales Transport Co Ltd 306 where the tyre of a bus burst and the bus mounted the pavement and fell down an embankment, res ipsa loquitur did not apply because the court had evidence of the circumstances of the accident and was satisfied that the system of tyre inspection in the garage owned by the defendants was a negligent one. The word ‘explanation’ must be qualified by the adjectives ‘exact’307 or ‘precise’.308 This is to make it clear that a plaintiff who is able to present a partial account of how an accident happened is still not precluded from relying on res ipsa loquitur for further inferences essential to the winning of the case. The partial explanation may make it more obvious

[page 300] that an inference of negligence can be drawn. What is not entirely clear, however, is what degree of particularity of the cause is needed to oust the application of the res ipsa loquitur maxim. In Kilgannon v Sharpe Bros Pty Ltd309 a nine-year-old boy was seriously injured when an aerated soft drink bottle exploded in his hands. Hope JA held310 that even if it were accepted that the explosion had been caused by an impact on the bottle after manufacture, so that the general class of cause was known, where no evidence was led as to when, where or how the impact occurred, the precise cause remained unknown, thereby enabling the maxim to be applied. The cases thus suggest some scope for the rule whenever the exact cause is not ‘fully revealed’ by the evidence311 so that an inference can still be drawn. For example, where two cars collide, as in Haslbauer’s case, Menzies J expressed the opinion that even if one were to accept that the brakes of one of them had failed on application just before the collision, this evidence would not fully reveal the precise cause of the collision.312 Of course, as in the Barkway case, even if res ipsa loquitur is inapplicable because all the material facts are proved, those facts may be found to constitute negligence.313

The harm must be of such a kind that it does not ordinarily happen if proper care is being taken 8.43 The courts have relied on res ipsa loquitur in a variety of situations. It has been used to explain things falling from buildings314 and accidents resulting from defective machines or vehicles.315 It has been applied where motor cars mount the pavement,316 where trains collide head-on317 and where aircraft crash on taking off.318 But the existence of the maxim is not a warrant for asserting that all unexplained accidents must have been caused by negligence.319 A great deal depends on the actual circumstances proved in evidence. The maxim may only be applied to those accidents which would not, in the normal course of things, have occurred unless reasonable care were not taken.320 Hence res ipsa loquitur has been held inapplicable where a passenger fell out of a railway carriage after the train gave a sudden jolt,321 where the plaintiff suffered an allergic reaction from using bath salts,322 when a visitor to a public swimming pool died after falling from a sled which

came off the [page 301] rails,323 and when a patient suffered complications following major surgery.324 It was also not relied on where a fire, having been left by a lodger in the grate, spread and damaged neighbouring rooms.325 The mere fact that the occurrence is itself unusual will not assist in the determination of negligence. A plea of res ipsa loquitur can succeed in establishing a prima facie case of negligence only where common knowledge or experience points to the conclusion that the incident would not have happened if due care had been taken. This is illustrated in Piening v Wanless326 where the steering mechanism of a car failed, leading to an accident. Barwick CJ refused to apply the maxim on the basis that neither the judge nor the jury, as a matter of common knowledge or experience, knew anything about the mechanism and so could not draw any inferences of negligence. The relevant time to consider the common knowledge criterion is the time of the incident: in Dwan v Farquhar327 the appellant contended that res ipsa loquitur would apply where the AIDS virus was transmitted by blood transfusion in the course of an operation which took place on 31 May 1983. The case came to trial in 1987 by which time it was common knowledge that the AIDS virus could be transmitted in this way. The court held328 that ‘critical to the success of this primary contention … is knowledge and appreciation of the risk involved in the use of blood obtained from a reputable supplier in May 1983 by reason of the possibility of it containing the AIDS virus’. As the medical evidence placed before the court showed that the existence of the virus and the risk of its transmission by blood transfusion had only some years later come to the attention of the medical profession, the appellant’s contention failed.

8.44 It will be recalled that the classic definition of Erle CJ in Scott’s case,329 referred to accidents happening ‘in the ordinary course of things’. Mahon v Osborne330 raised the issue whether this means that it must be a matter of common experience, so that the experience of the expert is

irrelevant. Goddard LJ held that the doctrine applied where a swab had been left in the body of a patient after an abdominal operation331 but Scott LJ thought that where the judge could not, as with complex surgical operations, have enough knowledge of the circumstances to draw an inference of negligence, the doctrine did not apply.332 Since then, the English Court of Appeal has held it to be prima facie evidence of negligence that a patient, on leaving hospital after a course of radiography treatment to a hand and arm, had four stiff fingers and a useless hand,333 and a court of first instance has been influenced by expert [page 302] evidence in rejecting the application of res ipsa loquitur to a case where a patient sustained a fractured jaw as a result of a dental extraction.334 In Lambos v Commonwealth the High Court was confronted with a situation in which a hospital employee brought an action for negligence against the employer for injuries sustained while using a washing machine. Res ipsa loquitur was invoked to raise an inference of negligence. The court made the point335 that what happens ‘in the ordinary course of mankind’ is ‘either the subject of evidence or of common knowledge’. In this case, where the evidence revealed nothing more than that the machine had operated efficiently for four years, during which time no similar incident had taken place, the court was thrown back on its common knowledge. But, because even for the ‘merest understanding’ of this complex piece of machinery, some mechanical or expert knowledge was necessary, it could not be said that the court had common knowledge sufficient to warrant the inference that the accident was more likely than not to have occurred due to the want of care on the part of the employer. Here, in order to succeed in the negligence claim, the employee would have to lead evidence beyond the mere fact of the occurrence. This would suggest that where expert evidence is necessary to show that an accident involving a thing under the control of the defendant would not happen if proper care were used, res ipsa loquitur does not apply.

The instrumentality causing the accident must be within the exclusive control of the defendant

8.45 The meaning of ‘control’ If the defendant is not in control res ipsa loquitur does not apply. This follows from the fact that it is not sufficient for the facts merely to speak of negligence: the evidence must point to the defendant’s negligence.336 Turner v Mansfield Corporation illustrates this.337 The plaintiff driver of the defendant’s dust cart was injured when its back raised itself up as the plaintiff drove it under a bridge. An attempt was made to pin liability on the defendant using res ipsa loquitur. It was held that since the plaintiff and not the defendant had been in control at the time of the accident, it was for the plaintiff to explain the events and since the plaintiff could furnish no evidence from which negligence could be inferred, the action failed. There has been a certain amount of controversy over the meaning of the phrase ‘exclusive control’. The English Court of Appeal had, for example, indicated338 that the scope of res ipsa loquitur was severely limited in highway accidents because all the essential surrounding circumstances were seldom under the defendant’s control, but the court in McGowan v Stott339 refused to follow this, and declared the doctrine applicable to accidents on the highway where the defendant was in control of the vehicle causing the damage. Recent cases illustrate that the courts no longer insist on complete control of all the circumstances before the rule can apply; owners and occupiers of shops or shopping malls have been held to possess the necessary [page 303] degree of control over these premises enabling an inference of negligence to be drawn where customers injure themselves by falling on slippery floors.340 The notion of ‘exclusive control’ nonetheless remains difficult to pin down. Much depends on the particular context and the perception of the court as to who is in actual control. Two actions brought against railway companies by plaintiffs who had fallen out of trains illustrate these difficulties. In Gee v Metropolitan Railway Co,341 a few minutes after a local train had started its journey, the plaintiff leaned against the offside door, which flew open. The doctrine was applied to establish evidence of negligence on the part of the railway company in that it could obviously be inferred that they had failed to ensure that the train was in a safe condition before it left the station. By

comparison, in Easson v L&NE Railway Co,342 the plaintiff’s claim failed, Goddard LJ holding that ‘it is impossible to say that the doors of an express corridor train travelling from Edinburgh to London are continuously under the sole control of the railway company’. Where the apparatus or appliance that caused the injury is situated in the plaintiff’s house, the onus is on the plaintiff to show that it was improbable that persons other than the defendant could have interfered with it — only then can res ipsa loquitur be invoked.343 In Godfrey Ltd v Ryles344 a fire broke out in a second-hand kerosene refrigerator on hire-purchase to a householder, resulting in extensive damage to the house itself. Applying the maxim, the Special Magistrate held the supplier negligent on the basis that, as he had previously been called on to repair the appliance, it was effectively subject to his control. This decision was reversed on appeal, the court holding that such reasoning might have been more cogent had the fire occurred in an electrical refrigerator operated by an engine working in a sealed unit. In that event the nature and construction of the appliance would tend to exclude the possibility of interference by the householder. In this case, however, filling the refrigerator with kerosene was within the sole control of the householder and her manner of carrying out this operation was an equally possible cause of fire; accordingly the matter could not be resolved by reference to res ipsa loquitur. Employees who invoke res ipsa loquitur in an attempt to hold their employers liable for failing to provide a safe place (or system) of work may face difficulties in satisfying the requirement of exclusive control if they themselves enjoy access to the premises equivalent to other servants or agents of the employer,345 at least in circumstances where it could not be said that the accident had not been caused by some inadvertent act of the plaintiff.

8.46

Where one of two or more persons is in control If the instrumentality is in the control of one of several servants of the same employer, and the plaintiff cannot point to the particular servant who is in control, the rule may still be invoked so as to [page 304]

make the employer vicariously liable:346 a hospital authority has been held answerable for negligent treatment where the plaintiff could not show which of several members of the staff was responsible.347 Further, it has been suggested that, where a swab or instrument has been left in the patient’s body following surgery, res ipsa loquitur may apply in an action for negligence against the surgeon in circumstances where the surgeon is in general command of the operation.348 If, on the other hand, the surgeon is not in control of all the relevant stages of the treatment, and if the plaintiff cannot prove that the act complained of took place at a time when the defendant surgeon was in control, res ipsa loquitur cannot be relied on.349 Walsh v Holst & Co Ltd350 extends the doctrine further: when the defendant’s duty is so extensive as to be answerable for the negligence of an independent contractor, and an accident occurs while the independent contractor is performing the delegated work, the plaintiff can invoke res ipsa loquitur against both the defendant and the independent contractor.

8.47 A related, though distinct, problem is the position of a plaintiff when confronted with the possibility of multiple defendants. In Kilgannon v Sharpe Bros Pty Ltd351 the plaintiff was injured when an aerated soft drink bottle he was holding exploded. He brought an action for negligence against the manufacturer, the bottler and the retailer. The trial judge ruled that res ipsa loquitur was unavailable in such circumstances to establish a prima facie case against any of the three defendants. Of the two judges who addressed this point on appeal, Hope JA concurred with the trial judge on the basis that the plaintiff must be able to establish, on a balance of probabilities, which particular defendant or defendants were negligent; it is not sufficient merely to establish that one of them must have been or all of them may have been negligent.352 All three defendants had been in control of the bottle at different times, but the rule requires the plaintiff to prove exclusive control. The other appeal judge, Kirby P, attempted to circumvent this requirement by saying353 that it served no other purpose than to eliminate the possibility that someone else, not before the court, is responsible. But the requirement does more than just this; by isolating the person in control it provides the reason to affix prima facie liability on a particular person or persons, thereby excluding the liability of anyone else. In the particular case before the court, only one of the three defendants could have had the necessary degree of control; res ipsa loquitur could therefore operate only in relation to that defendant.354 Kirby P

also advanced policy reasons in support of this extended use of the maxim, arguing that in a complex modern society, tortfeasors [page 305] may have no direct relationship with those injured and, where the litigation occurs years after the alleged negligent act, it is valid to use the maxim to draw inferences of negligence in order to lighten the otherwise unreasonably heavy burden placed on the victim to identify not only the negligent act but also the negligent actor.355 While this may be an argument for reform of the law, it does not justify use of the res ipsa loquitur rule in a manner that would effectively eliminate the need to establish exclusive control. The High Court has not yet had an opportunity to consider the application of the rule to the multiple defendant situation, although in Nesterczuk v Mortimore356 res ipsa loquitur was considered in the context of a claim and cross-claim in respect of damage suffered in a motor accident, each driver alleging negligence in the other. The vehicles had been travelling in opposite directions when they collided. Each driver claimed to have been travelling on the correct side of the road and that, although neither had seen the other swerve, the other driver must have done so, thereby causing the collision. A majority of the court upheld the decision of the trial judge to dismiss both claims on the basis that neither account was more probable than the other. Windeyer J stated his view on the matter succinctly. As he said:357 Doubtless the facts spoke for themselves, and eloquently, of negligence but of whose negligence they had nothing convincing to say.

The gist of the decision is that more than one hypothesis, none more convincing than the others, could be called on to explain the accident. Each driver or only one of them could have been responsible, depending on where on the road the collision occurred and what each had done in the circumstances. As it was, neither had discharged their respective burdens of proof and the court was therefore not entitled to make a finding which would not be justified by the facts. By comparison, where a collision between two vehicles travelling in opposite directions is shown to have occurred in the centre of the road, then in the absence of any further explanation, an inference of negligence on the part of both drivers could reasonably be

drawn.358 A passenger injured in such a collision could use res ipsa loquitur to establish a prima facie case of negligence against the drivers of both vehicles. The situation of the three defendants in Kilgannon v Sharpe Bros Pty Ltd359 is comparable to that in Nesterczuk in that, while one of them had doubtless been negligent, the res did not say which one was negligent. The plaintiff accordingly had not discharged the onus of proof and an inference of negligence could not be drawn. Beyond setting out the above rules, it is submitted that one cannot define the circumstances where the doctrine applies. As usual in negligence, some writers list all the circumstances where res ipsa loquitur has been applied as if they were precedents on points of law. But the English Court of Appeal has held360 that these cases do not lay down any principles of law; they are merely a guide to the kind of circumstance where the doctrine might successfully be invoked. [page 306]

The effect of res ipsa loquitur361 8.48 In some cases the inference to be drawn by resorting to the rule is twofold: that the defendant caused the accident; and that the defendant was negligent. In others, the cause is known, and only the inference of negligence arises.362 As has been seen above, on the proved facts it may be just as likely that the event happened without negligence as that it happened in consequence of negligence, in which case there is no evidence of negligence. If, however, in such circumstances, res ipsa loquitur applies, its effect is to make it ‘relevant to infer negligence’363 from the fact of the accident — there is in law evidence of negligence on which a jury may properly find for the plaintiff.364The distinctive function of the rule is to permit an inference of negligence from proof of the injury and the physical instrumentality causing it, even though there is no proof of the facts identifying the human agency responsible. Looked at in this way, its affinity to the ordinary rule of evidence that circumstantial evidence is admissible to prove negligence is clear. As Atkin LJ has said:365

… all that one wants to know is whether the facts of the occurrence do as a matter of fact make it more probable that a jury may reasonably infer that the damage was caused by want of care on the part of the defendants than the contrary.

The effect of res ipsa loquitur is, at least, to afford prima facie evidence of negligence. But does it go further and shift the burden of proof in the sense that in the absence of rebutting evidence from the defendant there must be a verdict for the plaintiff? In one or two instances some judges in England (but not in other parts of the Commonwealth) have leaned towards the view that it does so shift the burden.366 Whatever the situation in England, it is clear that, in Australia, there is no shift in the onus, which remains throughout the case on the plaintiff. The High Court in Griffith District Hospital v Hayes described the effect of res ipsa loquitur in the following terms:367 It only carries the party who proves the fact to the point of awaiting some explanation and subject to such an explanation carries him to the jury; it does not impose a burden of legal disproof but it carries the plaintiff’s case forward.

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8.49 Nor does the application of the rule mean that, if the defendant elects not to give evidence at the close of the case in chief, a finding must be made for the plaintiff.368 No presumption of negligence is involved.369 Accordingly, the defendant may succeed without calling evidence.370 The inference to which the maxim gives rise will only justify, but does not compel, a verdict for the plaintiff.371 The strength of the inference is a matter for the jury to estimate372 but the plaintiff does not enjoy any entrenched or preferred position in relation to the decision by the jury of that question.373 However, the evidence may be so cogent and the forensic impact of the defendant’s failure to call evidence so considerable374 that a finding by a jury of no negligence could be set aside as a perverse verdict.375 As Du Parcq LJ said:376 The words res ipsa loquitur are … a figure of speech, [by which sometimes is meant] that certain facts are so inconsistent with any view except that the defendant has been negligent that any jury which, on proof of these facts, found that negligence was not proved would be giving a perverse verdict. Sometimes, the proposition does not go as far as that, but is this, that, on proof of certain facts an inference of negligence may be drawn by a reasonable jury …

To sum up, the effect of res ipsa loquitur depends on the cogency of the inference to be drawn, and will vary from case to case; if, for instance, a

vehicle mounts the pavement, this is evidence of negligence, but reasonable people may differ about the inference to be drawn from it, so that a verdict of no negligence would not be upset although a withdrawal from a jury would be — yet something may fall from the defendant’s window in such circumstances that only an inference of negligence can be drawn, whereupon a verdict of no negligence might be set aside.

8.50 The effect of res ipsa loquitur where the defendant elects to give evidence must also be considered. The most obvious effect, from a practical perspective, is that the inference of negligence which was open to the jury at the close of the evidence in chief will most likely be weakened or strengthened. It is possible that the defendant’s evidence may so undermine the original inference that the judge will not allow the case to go to the jury. More commonly, the proper course is for the judge to leave the decision to the jury, together with an instruction that the onus of proving negligence rests on the plaintiff. Once this stage in the proceedings is reached, an appellate court would be entitled to set aside the decision of the jury, whether for or against the plaintiff, if this is warranted by the evidence.377 It is not necessary for the defendant, in order to dislodge the inference of negligence, to explain the precise cause of the accident; it is sufficient that the defendant calls credible evidence which explains how the accident may have occurred without [page 308] negligence.378 In this regard it seems, however, that the operation of the rule is not displaced merely by expert evidence showing theoretically possible ways in which the accident might have taken place without the defendant’s negligence. Throughout this process there is no onus cast upon the defendant, in the sense that it is not incumbent on the defendant to prove that his or her negligence did not cause the accident. All the defendant has to do is to give a reasonable explanation which is equally consistent with the accident happening without negligence on his or her part as with it.379 Once this is done, the cogency of the fact of the accident by itself disappears.380 Barwick CJ in Nominal Defendant v Haslbauer put the matter thus:381

If the defendant calls evidence as to the occurrence, which if accepted by the tribunal of fact, and read with the plaintiff’s evidence as to the occurrence, would no longer allow an inference of negligence on his part to be drawn from the fact of the occurrence as it is then known, the plaintiff, if relying only upon the inference sought to be drawn from the occurrence, will fail in the action if that evidence of the defendant is accepted. He will have no evidence of negligence on the part of the defendant and will not satisfy the onus which remains with him throughout to establish that negligence.

Beyond this the High Court has held that, where the defendant gives evidence, which, assuming it is acceptable, shows how the accident was caused, the operation of the res ipsa loquitur principle ceases and it becomes a question whether, on that evidence, the defendant was negligent or not. In this event, the defendant will succeed unless the jury is satisfied that he or she was negligent.382 Some English courts have stated alternatively that the defendant loses unless he or she proves that the accident resulted from a specific cause which does not connote negligence on their part but on the contrary points to its absence as more probable.383 Arguably there is no inconsistency in these judicial utterances; all may depend on the context of the cases and the cogency of the rebutting evidence in the particular case. _______________ 1.

[1943] AC 448 at 454; 2 All ER 44 at 47 (HL).

2.

[1951] AC 367 at 384; 1 All ER 42 at 50–1 (HL).

3.

[1951] AC 850 at 860; 1 All ER 1078 at 1082 (HL).

4.

Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [5] per Gleeson CJ; Sousaari v Steinhardt (1989) Aust Torts Reports 80-268 (manufacturer has no duty to design or manufacture a defect-free or accident-proof product); Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [26] per Gleeson CJ; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761 at [51] per Gummow J.

5.

For example, per Pearson J in Donaldson v McNiven [1952] 1 All ER 1213 at 1216; aff’d [1952] 2 All ER 691 (CA).

6.

[1985] AC 871; 1 All ER 643.

7.

These included that patients might irrationally reject necessary treatment, may not understand complex information and prefer in any event to leave the decision on the risk versus the benefit equation to their doctors. In F v R (1983) 33 SASR 189 at 193 King CJ also took into account whether full disclosure of the risks would harm the patient mentally or physically.

8.

(1992) 175 CLR 479 at 489–90; 109 ALR 625 at 633–4.

9.

Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [24] per McHugh J. Accordingly, the more suspicious or demanding the patient, the greater the need to identify and elaborate on the risks: per Callinan J at [210].

10.

The ‘prudent patient’ is the standard adopted by a number of American courts: see Canterbury v Spence (1972) 464 F 2d 772 at 780; it was also the approach endorsed by Lord Scarman in his

dissenting judgment in Sidaway. 11.

See Malcolm ‘The High Court and Informed Consent: The Bolam Principle Abandoned’ (1994) 2 Tort L Rev 81 at 83.

12.

See, eg, per Kirby P in Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 518.

13.

(1980) 124 Sol Jo 376 (CA).

14.

[1976] QB 286; [1975] 3 All ER 520.

15.

(1980) 146 CLR 40 at 47; 29 ALR 217 at 221; approved in Webb v South Australia (1982) 43 ALR 465; regarded now as ‘settled principles’: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 at [201]. See also Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [108]–[109] per Gummow J. For a similar formulation in the context of an employer’s obligation to an employee, see Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 26 per Dixon CJ and Kitto J; followed in Niemann v John Ellison Hire (Stirling) Pty Ltd (1987) 48 SASR 492 at 495 per Bollen J.

16.

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; 214 ALR 355 at [54] per Callinan J; Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [213] per Callinan and Heydon JJ.

17.

New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [221] per Callinan and Heydon JJ. But cf at [78] per Gummow and Hayne JJ who regard the fact that it may not always have been applied correctly as providing no persuasive reason to reconsider the test.

18.

Ibid at [7] per Gleeson CJ; [78] per Gummow and Hayne JJ; [129] per Kirby J; despite criticism of the test, Callinan and Heydon JJ ruled that it was ‘not necessary’ on the facts of Fahy’s case to overrule Shirt [226].

19.

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761 at [69] per Gummow J, echoing the remarks of McHugh J in Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449 at [101]. To apply these criteria inflexibly or in too mechanistic a fashion might produce a distinctly unreasonable result: Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; 221 ALR 764 at [2] per Gleeson CJ and Kirby J; also New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [7] per Gleeson CJ; at [57] per Gummow and Hayne JJ.

20.

Ryan v ETSA (1987) 47 SASR 220 at 222 per Olsson J.

21.

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 554; 120 ALR 42 at 65.

22.

In other circumstances a reasonable response may be for the defendant to take certain precautions the effect of which would be to reduce, rather than eliminate, the risk: Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 370; Gillespie v Commonwealth (1991) 105 FLR 196 at 212 per Miles CJ (ACTSC).

23.

Civil Liability Act 2002 (NSW) ss 5B, 5C; Civil Liability Act 2003 (Qld) ss 9,10; Civil Liability Act 1936 (SA) ss 31, 32; Civil Liability Act 2002 (Tas) s 11; Civil Liability Act 2002 (WA) s 5B.

24.

(1951) 83 CLR 553 at 566–7. Similarly per Lord Wright in Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108 at 126 (PC):‘The degree of care which that duty involves must be proportioned to the degree of risk involved if the duty of care should not be fulfilled’, approved by Lord Normand in Paris v Stepney Borough Council [1951] AC 367 at 381; 1 All ER 42 (HL). Cf Cardozo J in Palsgraf v Long Island Railroad Co (1928) 248 NY 339: ‘The risk reasonably to be perceived defines the duty to be obeyed’.

25.

Cf per McHugh J in Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [79]–[80] who argues that the defendant’s obligation to examine the need for a precaution should

arise only in respect of significant risks. 26.

‘The degree of care required varies directly with the risk involved’: per Lord MacMillan in Glasgow Corporation v Muir [1943] AC 448 at 456; 2 All ER 44 (HL); Walker v TurtonSainsbury [1952] SASR 159 at 162 per Napier CJ. Where new scientific knowledge comes to light, revealing hitherto unexposed dangers, so that the likelihood of harm becomes apparent where once it was not, the standard of care expected of the defendant may increase proportionately: Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449 (App Div).

27.

Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 per Dixon CJ; Glasgow Corporation v Muir [1943] AC 448 at 456 per Lord MacMillan.

28.

Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 246. Also, Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431; cf Griffin v Coles Myer Ltd [1992] 2 Qd R 478 where the same test was applied but with different results. See review of so-called ‘slipping’ cases by Gray J in Ragnelli v David Jones (Adelaide) Pty Ltd [2004] SASC 393 at [75ff]. In L v Commonwealth (1976) 10 ALR 269 prison authorities were held liable for the injury inflicted after they placed a prisoner in a cell together with other prisoners known to them to be prone to violence and bullying tactics.

29.

The Wagon Mound (No 2) [1967] 1 AC 617 at 642–3; [1966] 2 All ER 709 at 718 (PC) per Lord Reid; cited with approval and extended to occupiers by Kirby J in Romeo v Conservation Commn of the Northern Territory (1998) 192 CLR 431; 151 ALR 263 at [128].

30.

(1986) 160 CLR 156.

31.

It is this aspect, in particular, of the Shirt test which has provoked criticism that it is too ‘undemanding’: see, eg, New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [241] per Crennan J.

32.

Cf the approach taken in Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431; 112 ALR 393 at 398, where the High Court found against the occupier for failing to warn of the danger of diving off a rock even though the risk was acknowledged to be small.

33.

Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070 at 1080.

34.

See Baker v Quantum Clothing Group Ltd [2011] 4 All ER 223 (UKSC).

35.

(1936) 56 CLR 580 at 601.

36.

(1987) Aust Torts Reports 80-075.

37.

[1950] 1 KB 320; [1949] 2 All ER 843 (CA).

38.

[1951] AC 367; 1 All ER 42. Similarly, in Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [31] Ipp JA held that a risk of physical harm may be ‘significant’ if the risk is low but the potential harm is catastrophic.

39.

(1951) 83 CLR 553.

40.

For example, Hargrave v Goldman (1963) 110 CLR 40; Haileybury College v Emanuelli [1983] 1 VR 323.

41.

[1951] AC 367 at 382; 1 All ER 42 at 49 per Lord Normand. Cf Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47; 29 ALR 217 at 221 who noted as one of the factors that should be taken into the balance ‘any other conflicting responsibilities which the defendant may have’.

42.

[1946] 2 All ER 333 (CA).

43.

Ibid at 336. Cf Quinn v Scott [1965] 2 All ER 588 at 593 per Glyn-Jones J: ‘the safety of the public must take precedence over the preservation of the amenities and [I] cannot hold that the

[National] Trust’s duty to care for the countryside diminishes to any degree the duty not to subject users of this highway to unnecessary danger’. 44.

South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215.

45.

[1954] 2 All ER 368 at 371 (CA).

46.

Marshall v Osmond [1983] QB 1034; and see Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242 (police firing CS gas canister into a shop to flush out a dangerous psychopath).

47.

Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [78] per Gummow J.

48.

Latimer v AEC Ltd [1952] 2 QB 701 at 711 per Denning LJ; cf Watt v Hertfordshire County Council [1954] 2 All ER 368 (CA) (duty of fire authority to fire fighter in respect of equipment) where the dictum of Asquith LJ in Daborn v Bath Tramways Motor Co Ltd (see 8.7) was also approved; also Ryan v ETSA (1987) 47 SASR 220 at 222 per Olsson J.

49.

This is illustrated by Shepherd v SJ Banks and Son Pty Ltd (1987) 45 SASR 437 where the manufacturer of a tinning machine was held liable for failing to fit an inexpensive guard with the result the machine was unnecessarily dangerous to use (at 440); see also Jambrovic v ACT Health Authority (1992) 108 FLR 8 at 12 where the court spoke of a ‘petty sum for an adequate supply of gloves and aprons’.

50.

For example, Haileybury College v Emanuelli [1983] 1 VR 323 (high risk of bush fire).

51.

(1957) 97 CLR 202.

52.

[1967] 1 AC 617 at 643–4: [1966] 2 All ER 709 at 719. This statement has since been taken up by many Australian courts, including the High Court: Baggermaatschappij Boz & Kalis BV (t/as Westham Dredging Co) v Australian Shipping Commn (1980) 30 ALR 387 at 391.

53.

Per Lord Reid in The Wagon Mound (No 2) [1967] 1 AC 617 at 642–3; [1966] 2 All ER 709 at 718. Followed in Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 at 1073. For the relevance of the defendant’s financial resources, see Goldman v Hargrave [1967] 1 AC 645 at 663 (PC).

54.

(1998) 192 CLR 431; 151 ALR 263 at [129] per Kirby J.

55.

Miletic v Capital Territory Health Commn (1995) 130 ALR 591 at 594.

56.

[1952] 2 QB 701; 1 All ER 1302 (CA).

57.

[1953] AC 643 at 659; 2 All ER 449 at 455 (HL). In Mattson v Commonwealth (1988) Aust Torts Reports 80-216 (NSWSC) it was held that it was incumbent upon the defendant to ensure that stairs being put to extensive use were safe and, if not, to prohibit their use altogether.

58.

[1992] 1 VR 19 at 33 per McGarvie J.

59.

See, eg, Herrington v British Railways Board [1972] AC 877 at 898–9 per Lord Reid and 920–1 per Lord Wilberforce, respectively; PQ v Australian Red Cross Society [1992] 1 VR 19 at 32–3.

60.

Where liability is precluded for harm suffered by materialization of obvious risks of dangerous recreational activities: see Civil Liability Act 2002 (NSW), s 5L; Civil Liability Act 2002 (Tas), s 20; Civil Liability Act 2002 (WA), s 5H; Recreational Services (Limitation of Liability) Act 2002 (SA), s 7; Civil Liability Act 2003 (Qld), S 19.

61.

In Nagle’s case Brennan J held that this issue went rather to the question of the existence of a duty: see discussion at 7.39 above.

62.

(1998) 192 CLR 431 at 447 per Brennan CJ, 455–6 per Toohey and Gummow JJ, 491 per Hayne

J. Similarly, Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 474 per Gleeson CJ, 504 per Hayne J, 509–10 per Callinan J. 63.

(1998) 192 CLR 431 at 478 per Kirby J.

64.

(2005) 221 CLR 234; 214 ALR 452 at [36]–[37] per curiam: if, on the one hand, obviousness was always conclusive against liability, there would be little room for contributory negligence; on the other hand, if it was irrelevant, community standards of reasonable behaviour would require radical alteration.

65.

(2005) 220 CLR 517; 213 ALR 249 at [140]–[142].

66.

(2005) 223 CLR 486; 221 ALR 764.

67.

Ibid at 422; 711.

68.

Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [162], also per Gummow J at [55], understood by Ipp JA to mean that obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 at [53].

69.

Mulligan (2005) 220 CLR 517 at [52]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at [163].

70.

Mulligan, above, at [75]; cf Gleeson CJ’s and Kirby J’s more measured view, with reference to the need for a warning, that it ‘can be important’: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [7].

71.

(2011) 243 CLR 361; 276 ALR 375 at [43].

72.

Vairy, fn 68 above, at [46]. Similarly, Hayne J at [162].

73.

(2005) 222 ALR 631 at 650–1.

74.

As to the interpretation of state legislation, see, eg, Berrigan SC v Ballerini [2005] VSCA 159; Marsden v Ydalia Holdings Pty Ltd [2006] WASCA 52; Aiger v Coffs Harbour CC [2005] NSWCA 424; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419; Eutick v City of Canada Bay Council [2006] NSWCA 30; Edson v Roads & Traffic Authority [2006] NSWCA 68; CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136; Carey v Lake Macquarie CC [2007] NSWCA 4; Jaber v Rockdale CC [2008] NSWCA 98; Central Goldfields Shire v Haley [2009] VSCA 101; Felhaber v Rockhampton CC [2011] QSC 023; Vreman v Albury CC [2011] NSWSC 39.

75.

Walton et al, Charlesworth & Percy on Negligence, 10th ed, 2001, [6–04]. See also the similar views of Holmes, The Common Law, 1949, pp 110–29.

76.

[1933] 2 KB 461 at 468 (CA).

77.

Tidy v Battman [1934] 1 KB 319 at 322 (CA); cf SS Heranger (Owners) v SS Diamond (Owners) [1939] AC 94 at 101 per Lord Wright.

78.

[1946] KB 114 at 116; 1 All ER 1 at 3 (CA). And see Easson v L&NE Ry Co [1944] KB 421; 2 All ER 425 (CA).

79.

(1948) 77 CLR 215 at 221.

80.

[1959] AC 743; 2 All ER 38.

81.

Ibid at 758; 43–4, respectively, per Lord Somervell.

82.

(1963) 108 CLR 491 (motor accident).

83.

At 503; Knight v Maclean [2002] NSWCA 314 at [61].

84.

(1974) 132 CLR 97 at 119.

85.

[1951] AC 88; [1950] 2 All ER 486 (HL).

86.

[1951] AC 112; [1950] 2 All ER 414 (HL).

87.

[1946] KB 114 at 115; 1 All ER 1 at 3; cf du Parcq LJ in Easson v L&NE Ry Co [1944] KB 421; 2 All ER 425 (CA).

88.

But cf Allen J in Watson v Haines (1987) Aust Torts Reports 80-094 (NSWSC), who refused to set down guidelines as to what would constitute sufficient care in the discharge of a school’s duty to pupils playing football on the basis for his refusal was that this was not the court’s role — its role was to give judgment in respect of the particular case before it.

89.

(2000) 205 CLR 166; 176 ALR 137 at [57] per Gleeson CJ. For an illustration of the point, see Worsfold v Howe [1980] 1 All ER 1028 (CA).

90.

[1978] 1 NSWLR 631 at 639-640.

91.

(2005) 223 CLR 422; 221 ALR 711 at [64]. This explains the well-recognised possibility that, although a reasonably foreseeable risk of injury in a particular case exists, the response of a reasonable person may be to do nothing: Seltsam v McNeill [2006] NSWCA 158; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [34].

92.

(2002) 211 CLR 540; 194 ALR 337 at [106].

93.

Neindorf v Junkovic (2005) 222 ALR 631 at [52]–[56] per Kirby J.

94.

Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 at [48] per curiam.

95.

CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606 at [68] per Hayne J, and cases cited therein, referring to the ‘vice of retrospective over-specificity’; also Lowes v Amaca Pty Ltd [2011] WASC 287 at [324].

96.

(2011) 243 CLR 361; 276 ALR 375 at [21]–[22], per French CJ and Gummow J. See Luntz, ‘Editorial Comment’ (2010) 18 TLJ 107.

97.

(1856) 11 Exch 781 at 784.

98.

The duty is not one of insurance against harm: Moloughney v Wellington Racing Club [1935] NZLR 800 at 806 per Read J; Evans v Waitemata Pony Club [1972] NZLR 773 at 775 per Speight J; Grassi v Brandt (1986) Aust Torts Reports 80-010 at 67,565 per Kirby P; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761 at [18], [51]–[52] per Gummow J; [278] per Callinan J; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [26] per Gleeson CJ.

99.

Vaughan v Menlove (1837) 3 Bing NC 468 at 475 per Tindal CJ.

100. Heaven v Pender (1883) 11 QBD 503 at 507 per Brett MR. 101. King v Phillips [1953] 1 QB 429 at 441; 1 All ER 617 at 623 per Denning LJ (CA); for AP Herbert’s amusing definition, see Misleading Cases in the Common Law, 6th ed, 1931, p 12ff. 102. Glasgow Corporation v Muir [1943] AC 448 at 457; 2 All ER 44 at 48 (HL); cf the earlier dictum of Holmes J in The Germanic (1904) 196 US 589: ‘The standard of conduct … is an external standard, and takes no account of the personal equation of the man concerned’. 103. For example, Glasgow Corporation v Muir [1943] AC 448. 104. These issues are discussed by Parker, ‘The Reasonable Person: A Gendered Concept?’ (1993) 23

VUW L Rev 105. 105. For example, Cotton v Commr for Road Transport and Tramways (1942) 43 SR (NSW) 66; Farral v Stokes (1954) 54 SR (NSW) 294; Griffiths v Doolan [1959] Qd R 304; Bassani v Mudge and Bassani [1964] SASR 56; Bullock v Miller (1987) 5 MVR 55. 106. Cronan v Hepburn [1958] ALR 405; Aubrey v Carter [1962] WAR 51. 107. (1942) 43 SR (NSW) 66 at 69 per Jordan CJ. 108. For example, Broadhurst v Millman [1976] VR 208 at 216 per Gowans and Menhennitt JJ; Ralph v Henderson & Pollard Ltd [1968] NZLR 759 at 762–3 per Richmond J; Lambert v Zammit [2005] NSWSC 1135 at [192]. 109. Yachuk v Oliver Blais Co Ltd [1949] AC 386; 2 All ER 150 (PC); cf Culkin v McFie [1939] 3 All ER 613; Gough v Thorne [1966] 3 All ER 398 (CA). 110. As to when this can be done, see 7.28. 111. (1964) 111 CLR 384. 112. (1966) 115 CLR 199. Menzies J was the sole dissenter. Only one judgment at first instance has been traced in England holding that it is the standard of a reasonable child of the defendant’s age which should be adopted to govern the liability of children: Staley v Suffolk CC and Dean Mason (26 November 1985, unreported). 113. See, eg, Kitto J (1966) 115 CLR 199 at 214. See also Owen J at 228–9, 230. A possible exception might be infants engaging in ‘adult’ activities such as driving — here overriding consideration would be given to the safety of the public: Ralph v Henderson and Pollard Ltd [1968] NZLR 759 at 763. 114. This tension in the authorities was noted in Manly Council v Byrne [2004] NSWCA 123 at [113]. 115. For example, per Kitto J (1966) 115 CLR 119 at 213–14. The point was first made by Windeyer J in (1965) 111 CLR 384 at 396–7. 116. (1966) 115 CLR 199 at 213–14. 117. Ibid at 231. In Mullin v Richards [1998] 1 All ER 921 at 924 the views of Kitto and Owen JJ were regarded as essentially the same. 118. This approach was followed in H v Pennell (1987) 46 SASR 158 at 177 per Olsson J; Sainsbury v Great Southern Energy Pty Ltd [2000] NSWSC 479; see, also, Zanner v Zanner [2010] NSWCA 343 at [60]; Kain v Mobbs [2008] NSWSC 383 at [150]. 119. Ryan v State Rail Authority of NSW [1999] NSWSC 1236 at [20]. 120. Such an approach is advocated by Bromberger, ‘Negligence and Inherent Unreasonableness’ (2010) 32 Syd L Rev 411, except where the damaging conduct occurs in the context of a compulsory insurance scheme. 121. Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 at 67, citing with approval the American case Williams v Hayes (1894) 42 Am SR 743. 122. [2002] 1 Qd R 474 at 479, McMurdo P noting that the criterion in tort ‘is not so much culpability, but on whom the risk should fall’. 123. Ibid at 487. 124. [1939] 2 All ER 142. 125. Cf Ryan v Youngs [1938] 1 All ER 522 (CA) (driver, having heart attack leading to accident, held

not negligent). 126. For example, Williams, Joint Torts and Contributory Negligence, 1951, p 357. 127. The Common Law, 1911, p 109. 128. For a contrary view see Cotton v Commr for Road Transport and Tramways (1942) 43 SR (NSW) 66 at 68. 129. (1942) 43 SR (NSW) 66. 130. See Nettleship v Weston [1971] 2 QB 691; 3 All ER 581 (CA) and 8.24. 131. [1980] 1 All ER 7; [1980] 1 WLR 823. Cf Robinson v Glover [1952] NZLR 669. 132. Scholz v Standish [1961] SASR 123; Billy Higgs & Sons Ltd v Baddeley [1950] NZLR 605. 133. This principle was originally enunciated by Lord Blackburn in Stoomvaart Maatschappy Nederland v Peninsular and Oriental Steam Navigation Company (1880) 5 App Cas 876 at 891. 134. In Scholz v Standish [1961] SASR 123, the car collided with a tree which was only a few feet away when the driver was stung. In Billy Higgs & Sons Ltd v Baddeley [1950] NZLR 605, the driver had been in the process of overtaking at the time of the incident. 135. For example, Leahy v Beaumont (1981) 27 SASR 290. 136. [1980] 1 All ER 7; [1980] 1 WLR 823. 137. Robinson v Glover [1952] NZLR 669. 138. Vaughan v Menlove (1837) 3 Bing NC 468 at 474 per Tindal CJ. 139. See Wooldridge v Sumner [1962] 2 All ER 978 (CA). 140. (1974) 9 SASR 510. 141. Caminer v Northern and London Investment Trust Ltd [1951] AC 88; [1950] 2 All ER 486 (HL) carries the point; cf Haynes v Harwood [1935] 1 KB 146 at 153 per Greer LJ (CA). 142. Clarke v Holmes (1862) 7 H & N 937 (employer required to know more about the dangers of unfenced machinery than workers). 143. [1951] AC 88 at 100; [1950] 2 All ER 486 at 493 per Lord Normand (HL). And see Quinn v Scott [1965] 2 All ER 588. 144. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] 1 AC 617; [1966] 2 All ER 709 (PC). 145. Mersey Docks Trustees v Gibbs (1866) LR 1 HL 93. See also Swinton v The China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553 at 568 where the High Court found the defendant shipowners liable where they did not know of the precise contents of drums being off-loaded, but nevertheless were aware of sufficient facts that they ought to have known how dangerous the drums were. 146. Haseldine v CA Daw & Son Ltd [1941] 2 KB 343 at 356; 3 All ER 156 at 168 per Scott LJ (CA). 147. Brooks v LNW Ry Co (1884) 33 WR 167 (Div Ct); Brkovic v JO Clough & Son Pty Ltd (1983) 49 ALR 256 (HCA). 148. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308–9; 65 ALR 1 at 6. 149. Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137 at [104] per McHugh J. 150. For example, Bale v Seltsam Pty Ltd (SC(Qld), BC9604013 at 33, 23 August 1996, unreported).

151. [1954] 2 QB 66 at 83; similarly, Barwick CJ in Maloney v Commr for Railways (1978) 18 ALR 147 at 148 held that increased knowledge after the event should not decide what is reasonable conduct at the time; cited in E v Australian Red Cross Society (1991) 105 ALR 53 at 83; Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [67] per Gummow J. 152. Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58 (employee exposed to asbestos particles and fibres developing mesothelioma 30 years later); Dwan v Farquhar [1988] 1 Qd R 234 (patient contracting HIV through blood transfusion). 153. Nettleship v Weston [1971] 2 QB 691; 3 All ER 581 (CA). 154. ASIC v Healey [2010] FCA 717. For a comparative analysis of the situation as it pertains in Australia and the UK, both in terms of case law and legislation, see Lowry, ‘The Irreducible Core of the Duty of Care, Skill and Diligence of Company Directors: ASIC v Healey’ (2012) 75 MLR 249. 155. Rogers v Whitaker (1992) 175 CLR 479 at 483, 487, 492; 109 ALR 625 at 628, 631, 635. In this case the degree of skill was that of an ophthalmic surgeon specialising in corneal and anterior segment surgery. In Fitzpatrick v Jobs Engineering [2007] WASCA 63 the standard required was that of a reasonably competent engineer who designed, manufactured and supplied a machine intended for commercial use. 156. In the case of a doctor the duty is not limited to diagnosis; it also covers the examination and treatment stages, and includes the provision of information in appropriate cases: Rogers v Whitaker (1992) 175 CLR 479 at 483, 628 respectively. As to the relevance of practices accepted as proper by a majority of the profession, see 8.34ff. 157. Philips v William Whitely Ltd [1938] 1 All ER 566; A v B HC Palmerston North, CP 9/98 (midwife not required to exercise level of skill of a registrar or specialist medical practitioner); cf Shakoor v Situ [2000] 4 All ER 181 at 188, where a practitioner of Chinese herbal medicine, although not required to adhere to the standards of Western orthodox medicine, was nonetheless still required to abide by the prevailing UK laws and standards regarding the dispensing of medications. 158. [1958] 2 QB 265; 2 All ER 527 (CA). 159. If the householder employed a professional carpenter, no doubt the latter would be under a contractual duty to the householder to use the skill of a professional. But what standard would the professional owe to members of the public? 160. (2008) 236 CLR 510; 248 ALR 647. 161. (1986) 162 CLR 376; 68 ALR 353. 162. [1971] 2 QB 691; 3 All ER 581 (CA). 163. There is no reason to suppose Preston v Dowell (1987) 45 SASR 111 to be affected by this decision: standard of care owed by a motorist instructing a learner-driver was held to be that which could reasonably be expected of a driver of ordinary experience and competence rather than that of a professional driving instructor. 164. (2008) 236 CLR 510; 248 ALR 647 at [10]–[12] per Gleeson CJ; [54]–[57], [69]–[71] per Gummow, Hayne and Kiefel JJ. While not in disagreement with the majority reasoning, in Kirby J’s view the added consideration of compulsory insurance was a vital factor: at [105]ff. 165. (1985) 156 CLR 7. 166. Ibid at 36.

167. Haileybury College v Emanuelli [1983] VR 323 at 328–9. In Egger v Gosford Shire Council (1989) 67 LGRA 304 (NSWCA) the point was made (at 320–1) that the seeking of expert advice would be irrelevant unless that advice would on the probabilities have alerted the defendant to the potential risks which the carrying out of the work in question might entail. 168. In Voli v Inglewood Shire Council (1963) 110 CLR 74 this test was applied to architects. This standard of care applies also to barristers and solicitors practising in a specialised area of law: Goddard Elliott v Fritsch [2012] VSC 87 at [412]. 169. Heydon v NRMA Ltd (2001) 51 NSWLR 1 at 53. This is not equivalent to a warranty of perfection or a duty to give ‘correct’ advice: at 51. Much will depend on the facts of a particular case: Byblos Building Co Pty Ltd v Darlane Pty Ltd [1999] WASC 248 at [139]. 170. Whitehouse v Jordan [1981] 1 WLR 246 at 258; 1 All ER 267 (HL) citing Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586; 2 All ER 118 at 121 per McNair J; Chester v Afshar [2005] 1 AC 134; [2004] 4 All ER 587 at [52] per Lord Hope. 171. Per McNair J in Bolam, above, at 587; applied in Gold v Haringey Health Authority [1988] QB 481 at 489; [1987] 2 All ER 888 at 893 (CA); Dwan v Farquhar [1988] 1 Qd R 234 at 238. In Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 220 this test was applied to advice given by barristers (per Lord Diplock at 220). 172. Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; Ambulance Service of NSW v Worley [2006] NSWCA 102 at [36]; this test is discussed in 8.34ff. 173. Civil Liability Act 2002 (NSW) s 5O; Civil Liability Act 2003 (Qld) s 22; Civil Liability Act 1936 (SA) s 41; Civil Liability Act 2002 (Tas) s 22. For an application of the New South Wales legislation, see Dobler v Halverson [2007] NSWCA 335. 174. The decision of the Full Court of the Federal Court in Yates Property Corp Pty Ltd v Boland (1998) 85 FCR 84; 157 ALR 30 can be explained on this basis (rev’d on other grounds (1999) 167 ALR 575 (HCA)). 175. Wooldridge v Sumner [1963] 2 QB 43 at 68; [1962] 2 All ER 978 at 989 per Diplock LJ. In Walker v Turton-Sainsbury [1952] SASR 159 the court held that a person who did not hold himself out to have any particular driving skills when invited to take the controls of a racing car, could not reasonably be expected to show the skills of a reasonably competent racing driver. 176. For example, Wooldridge v Sumner [1963] 2 QB 43; [1962] 2 All ER 978; Whitehouse v Jordan [1980] 1 All ER 650 (CA) and see next note. 177. [1981] 1 All ER 246 (HL). 178. Hunter v Hanley [1955] SLT 213 at 217; Luxmore-May v Messenger May Baverstock [1990] 1 All ER 1067 at 1075–6 per Slade LJ (CA). 179. This was made clear in Wooldridge v Sumner [1963] 2 QB 43 at 67; [1962] 2 All ER 978 at 989. 180. [1985] 1 WLR 866. 181. Bourhill v Young [1943] AC 92 at 109; [1942] 2 All ER 396 at 905–6 per Lord Wright; cf Lord Wright, ‘Re Polemis’ (1951) 14 MLR 393 at 400. 182. Paris v Stepney Borough Council [1951] AC 367 at 385, 386 per Lord Oaksey and Lord Morton, respectively. 183. Jones v Santrans Pty Ltd (1991) 56 SASR 103 at 110. 184. [1965] AC 778; [1964] 3 All ER 185 (HL).

185. Glasgow Corporation v Taylor [1922] 1 AC 44 at 67; there are also numerous cases where defendants have been held not to be in breach of duty to infants, eg, Donovan v Union Cartage Co Ltd [1933] 2 KB 71 (Div Ct); or to blind persons, eg, Pritchard v Post Office (1950) 114 JP 370 (CA); or to persons with other disabilities, such as a bad back, eg, Zwickert v Capital Territory Health Commn (1988) Aust Torts Reports 80-179 (FC); or an abnormal susceptibility to shock: Wodrow v Commonwealth (1993) 45 FCR 52. 186. Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 2 All ER 369 (CA); Marshall v Osmond [1982] QB 857; 2 All ER 610, a police driver in hot pursuit of a suspected stolen car owes a reduced standard of care to any occupant of that car. 187. Cf Lynskey J in Pentecost v London District Auditor [1951] 2 KB 759 at 764; 2 All ER 330 at 332. Attempts made to introduce categories of ordinary, gross and slight care, eg, in Coggs v Bernard (1703) 2 Ld Raym 909 have been successfully resisted: Wilson v Brett (1843) 11 M & W 113 at 115 per Rolfe B; Grill v General Iron Screw Collier Co (1866) LR 1 CP 600 at 612 per Willes J. In O’Connor v British Transport Commn [1958] 1 All ER 558 the Court of Appeal rejected the contention that carriers had to maintain towards passengers a standard of care higher than the ordinary standard of care. 188. Per Lord Chelmsford in Giblin v McMullen (1869) LR 2 PC 317 at 337. 189. Glasgow Corporation v Muir [1943] AC 448; 2 All ER 44 (HL); Paris v Stepney Borough Council [1951] AC 367; 1 All ER 42 (HL). 190. Tilley v Stevenson [1939] 4 All ER 207 at 210 per Slesser LJ (CA). 191. Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; 221 ALR 764 at [22] per McHugh J; [50]–[53] per Hayne J; Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [128]–[129] per Hayne J; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761 at [67]ff per Gummow J; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [31] per French CJ, Gummow, Hayne, Heydon and Crennan JJ. 192. ‘Nothing is so easy as to be wise after the event’: per Bramwell B in Cornman v Eastern Counties Ry Co (1859) 4 H & N 781 at 786; see also Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [16] where Gleeson CJ noted that the High Court has repeatedly drawn attention ‘to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated’. 193. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 224; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [38]. 194. Kuhl case (2011) 243 CLR 361 at [94]. 195. Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214-15. 196. (1980) 146 CLR 40; 29 ALR 217. 197. [1951] AC 850; 1 All ER 1078. 198. (1980) 146 CLR 40 at 47; 29 ALR 217 at 221. 199. But see per Callinan J in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355 at [54] on the difficulty of drawing a line between a risk that is remote or extremely unlikely to occur and one that is far-fetched or fanciful. McHugh J would prefer to speak instead of risks which are ‘so significant’ that it is reasonable to examine the need for a precaution to eliminate it: Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [80]. 200. Donaldson v McNiven [1952] 2 All ER 691 (CA); see generally 9.13ff.

201. [1949] AC 155; 1 All ER 60 (HL). 202. [1947] KB 930 at 938. Cf Kleeman v Walker [1934] SASR 199 at 205. 203. [1949] AC 155 at 173; 1 All ER 60 at 70; cf Grant v Sun Shipping Co Ltd [1948] AC 549 at 567; 2 All ER 238 at 247 per Lord du Parcq (HL). 204. [1951] SASR 61 at 64. 205. Similarly, Boy Andrew (Owners) v St Rognvald (Owners) [1948] AC 140 at 153; Webb v South Australia (1982) 43 ALR 465 at 467 (HCA); Ratcliffe v Jackson (1994) Aust Torts Reports 81284 at 61,481 (Tas SC); Liverpool CC v Millet [2004] NSWCA 340. 206. (1967) 118 CLR 424 at 427. 207. (1980) 30 ALR 387. 208. See also Manchester Corporation v Markland [1936] AC 360 (HL). Nor are pharmacists entitled to work on the assumption that doctors are infallible; pharmacists are accordingly expected to give some thought to the prescriptions they dispense and not just blindly follow them: Prendergast v Sam & Dee Ltd (1988) The Times, 24 March; Dwyer v Rodrick (QB, 10 February 1982, unreported); see discussion of both these cases by McKevitt, ‘Doctors, Pharmacists and Prescriptions:The Standard of Care Owed to the Patient’ (1988) 4 Professional Negligence 185. 209. (1989) 167 CLR 78 at 90; 85 ALR 577 at 585. 210. For example, Hogan v Gill (1992) Aust Torts Reports 81-182 (Qld SC). 211. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 520; Binks v North Sydney Council [2006] NSWSC 463 at [113]; Cheetham v Bou (1989) 10 MVR 242 (NSWCA) (defendant driver held obliged to take into account possibility of plaintiff pedestrian crossing against the lights). Where the plaintiff in such cases is a minor, the courts have pointed to the duty of the defendant motorist ‘to take appropriate precautions to guard against the event that one or more of the children might do what children have a well known propensity of doing, that is, move suddenly out on the road’: Settree v Roberts [1982] 1 NSWLR 649 (CA), cited per Hope AJA in Delphin v Savolainen (1989) 10 MVR 37 (NSWCA); Kain v Mobbs [2008] NSWSC 383. 212. Per Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman (1984) 155 CLR 306 at 311; 56 ALR 359 at 363. In Jones v Santrans Pty Ltd (1991) 56 SASR 103 at 110, White J noted that employers cannot always rely on the employee’s commonsense or experience of life, or ability to develop a safe system of work. 213. For a case where the employer was held not liable for an employee’s negligence, see Vunic v The South Australian Housing Trust (1988) Aust Torts Reports 80-211 (SASC) where White J (at 68,100) held that the employee’s action was not due to some inattention or misjudgment but was so foolhardy that it could not be visited upon the employer (gardener injured while attempting to clear lawn mower blades of grass while engine running). 214. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309; 65 ALR 1 at 7 per Mason, Wilson and Dawson JJ. 215. Including Brodie v Singleton Shire Council (2001) 206 CLR 512; 180 ALR 145, where however Gaudron, McHugh and Gummow JJ did concede that ‘some allowance must be made for inadvertence’ [at 163]. 216. Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761 at [47]. Applied in Grierson v ACT [2011] ACTSC 113 at [29]. 217. Dederer (2007) 234 CLR 330 at [42]; similarly Brodie v Singleton Shire Council (2001) 206

CLR 512 at [163], a point picked up in Moyne Shire Council v Pearce [2004] VSCA 246 at [69] per Gillard AJA. In Stephens v Giovenco [2011] NSWCA 53, it is suggested by Hodson JA at [96] that this aspect of Gummow J’s statement relates only to the duty owed by road authorities to road users; in other situations the duty is not restricted. 218. See 8.10; also Stewart and Monahan, ‘Roads and Traffic Authority of NSW v Dederer: Negligence and the Exuberance of Youth’ (2008) 32 MULR 739. 219. In Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362, it was alleged that an employer was negligent in exposing an employee to unreasonable risk in cleaning the interior of a milk transporter. The court pointed out as ‘a feature of the case’ the fact that no evidence had been led by the employee tending to show that the employer’s practice in relation to the cleaning process involved any departure from standard practice. 220. Building inspectors, after Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 (HL) instituted more stringent practices on inspection. In subsequent negligence actions against them, these new methods were relevant, but only for inspections made after that case: Warlock v Saws (1981) 260 Estates Gazette 920. The absence of a general practice may also be relevant: Dwan v Farquhar [1988] 1 Qd R 234. 221. Whiteford v Hunter (1950) 94 Sol Jo 758 (HL); cf Vancouver General Hospital v McDaniel (1934) 152 LT 56 (PC); Wright v Cheshire County Council [1952] 2 All ER 789 (CA). 222. [1957] 2 All ER 118; [1957] 1 WLR 582; followed in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; 1 All ER 434 (Lord Scarman dissenting: at 881; 655). 223. For example, because the standards it specifies have been lowered as a result of heavy lobbying by interested parties or where apathy or fatalism prevails: Baker v Quantum Clothing Group Ltd [2011] UKSC 17 at [101]. 224. Mercer v Commr for Road Transport and Tramways (NSW) (1936) 56 CLR 580; Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184 at [75] to [76] per McColl JA. 225. [1984] QB 405; 1 All ER 881. 226. See also Cavanagh v Ulster Weaving Co Ltd [1960] AC 145; [1959] 2 All ER 745 (HL); Brown v Rolls-Royce Ltd [1960] 1 All ER 577 (HL). The House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232 at 241–2; [1997] 4 All ER 771 at 778 held that the court has to be satisfied that general practice and opinion has a logical basis. 227. Ambros v Accident Compensation Corp [2010] NZHC 485 at [31] per Harrison and Heath JJ. 228. (1983) 33 SASR 189 at 194. In Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449 at 494 (App Div) it was noted that such a delegation would be tantamount to an abrogation of the duty of care owed by the respondent. See also Young v Northern Territory (1992) 107 FLR 264 at 271; Knight v Home Office [1990] 3 All ER 237 at 242–3 (CA). 229. E v Australian Red Cross Society (1991) 105 ALR 53 at 68 per Lockhart J. Cf Pincus J at 87 who added the caveat that the courts should be slow to override acknowledged experts who, in a new and rapidly changing field of scientific knowledge, have reached a view as to what proper practice requires. 230. Per McHugh J in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 at [34]. 231. Rogers v Whitaker (1992) 175 CLR 479 at 489; 109 ALR 625 at 632. 232. Ibid at 491, 634 respectively; Strempel v Wood [2005] WASCA 163 at [28], [217]. 233. Ibid at 489, 632 respectively. Cf Gaudron J who held that, even in the areas of diagnosis and

treatment, there is no legal basis for limiting liability in terms of the Bolam test — its utility, at most, is as a ‘rule-of- thumb’ in some jury cases: at 493, 636 respectively. 234. Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [7] per Gleeson CJ; Piwonski v Knight (2002) 83 SASR 400 at [71]ff. 235. For example, Breen v Williams (1996) 186 CLR 71 at 114; 138 ALR 259 at 290 per Gaudron and McHugh JJ; Lowns v Woods (1996) Aust Torts Reports 81-376 at 63,157 per Kirby P (NSWCA). 236. Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 at [73]. 237. The Civil Liability Act 2002 (WA) s 5PB refers to ‘health professionals’ only. 238. Civil Liability Act 2002 (NSW) s 5O; Civil Liability Act 2003 (Qld) s 22; Civil Liability Act 1936 (SA) s 41; Civil Liability Act 2002 (Tas) s 22; Wrongs Act 1958 (Vic) s 59; Civil Liability Act 2002 (WA) s 5PB(1); on the application of the New South Wales section, see Dobler v Halverson (2007) 70 NSWLR 151 (CA). 239. D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 at [189], per McHugh J. See also King v Western Sydney Local Health Network [2011] NSWSC 1025 at [106] per Garling J. 240. Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 at [548]. 241. NSW s 5P; Qld ss 21, 22(5); SA s 41(5); Tas ss 21, 22(5); Vic s 60; WA s 5PB(2). 242. In Powell v Phillips [1972] 3 All ER 864 (CA), it was held that breach of the Highway Code, despite the Road Traffic Act 1960 (Eng) s 74(5), creates no presumption of negligence calling for an explanation; it is just one relevant circumstance on which the defendant is entitled to rely. In Trotman v British Railways Board [1975] ICR 95, it was held that breach of a regulation in a British Railways Rule Book created a rebuttable inference of negligence. A breach of a navigational by-law is particularly cogent evidence of negligence: eg, Cayzer Irvine & Co v Carran Co (1884) 9 App Cas 873 at 880–1 per Lord Blackburn (HL), sed quaere whether it is conclusive. 243. Blamires v Lancs and Yorks Ry (1873) LR 8 Exch 283; Phillips v Britannia Hygienic Laundry Co [1923] 1 KB 539 at 548 per McCardie J; aff’d [1923] 2 KB 832 (CA); Anglo-Newfoundland Development Co Ltd v Pacific Steam Navigation Co [1924] AC 406 at 413 per Lord Dunedin (HL); see also Harrison v National Coal Board [1951] AC 639; 1 All ER 1102 (HL); National Coal Board v England [1954] AC 403; 1 All ER 546 (HL). Compliance with a statutory requirement does not exclude liability in negligence: Bux v Slough Metals Ltd [1974] 1 All ER 262. And see Budden v BP Oil Ltd (1980) 124 Sol Jo 376 (CA). In Tucker v McCann [1948] VLR 222 at 227, the court considered such a breach to be no more than a piece of evidence to be taken into account along with the other evidence. 244. The distinction between law and fact is especially relevant in cases on appeal from county court judges, which are often only on points of law and also in the relatively few cases on appeal from a judge sitting with a jury. 245. As Gleeson CJ noted in Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [8], the issue is whether there is evidence on which a jury could reasonably be satisfied that the defendant was negligent. 246. See Pryor v Government Insurance Office (NSW) (1989) 10 MVR 83 where the appellate court held that the trial judge had erred in dismissing the case out of hand on the basis that all the witnesses were drunk and could not be believed; even allowing for this disbelief, the judge was obliged to evaluate and deal with the remaining objective facts.

247. These and (2) are matters of inference from (1). 248. Mitchell v Wachter [1961] VR 537. 249. Waverley Municipal Council v Swain [2003] NSWCA 61 at [11] per Spigelman CJ. 250. This is not surprising in view of the fact that, unlike a jury verdict, a judge will give reasons for the decision on the facts as well as on the law. 251. Per Viscount Simon in Watt v Thomas [1947] AC 484 at 486; 1 All ER 582 at 583 (HL). 252. Devries v Australian National Railways Commission (1993) 177 CLR 472; 112 ALR 641 at 479; 645 per Brennan, Gaudron and McHugh JJ. 253. Fox v Percy (2003) 214 CLR 118; 197 ALR 201 at [23] per Gleeson CJ, Gummow and Kirby JJ. 254. Per Lord Thankerton in Watt v Thomas [1947] AC 484 at 448; 1 All ER 582 at 587. This statement of principle was endorsed by McHugh J in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; 96 ALR 354 at 361. See also Sarian v Elton [2011] NSWCA 123 at [12]ff and cases cited therein. 255. Once satisfied that there is good reason to regard the trial judge’s finding to be erroneous, the appellate judge is obliged to correct the error: Seiwa Australia Pty Ltd v Beard (2009) 75 NSWLR 74 (CA) at [154] per Campbell JA. 256. Powell v Streatham Manor Nursing Home [1935] AC 243 at 267; All ER Rep 58 at 67 per Lord Wright (HL). Appellate courts exercise this power so freely that many appellate decisions turn solely on matters of inference from facts: see Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552; 1 All ER 385 (HL); Warren v Coombes (1979) 142 CLR 531; Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; Burk v Commonwealth [2008] VSCA 29 at [33] per Warren CJ. 257. As to the role of the second appellate court, compare the views of Gleeson CJ in Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761 at [5]–[12] with those of Kirby J at [163]–[166] and Heydon J at [287]ff. 258. As to the historical development of this rule, see Kirby J in Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [52]ff. 259. If sitting alone, the judge should first ask counsel for the defendant, who has submitted that there is no case to answer, whether counsel will stand on the submission or call evidence before the judge rules on the submission: Parry v Aluminium Corporation Ltd (1940) 162 LT 236. A judge sitting with a jury need not put counsel to an election: Young v Rank [1950] 2 KB 510; 2 All ER 166. And see Payne v Harrison [1961] 2 QB 403; 2 All ER 873 (CA). 260. Even after hearing all the evidence, a judge may rule ‘no case’ and withdraw the case from the jury: Grinsted v Hadrill [1953] 1 All ER 1188 (CA). 261. Metropolitan Ry Co v Wright (1886) 11 App Cas 152 (HL). 262. Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [125]; Roche Mining Pty Ltd v Jeffs [2011] NSWCA 184 at [88]. 263. Dublin, Wicklow and Wexford Ry Co v Slattery (1873) 3 App Cas 1155 at 1168; and see Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [16] per Gaudron J and Swain v Waverley Municipal Council, above at [203], [205] and [213] per Kirby J as to what is meant by the term ‘no evidence’; see also Victoria v Subramanian (2008) 9 VR 335 at [24]ff per Cavanough J. 264. Per Jordan CJ in De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR

(NSW) 1 at 5, approved by Latham CJ in Hocking v Bell (1945) 71 CLR 430 at 442 and by Callinan J in Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [117]. 265. Metropolitan Ry Co v Jackson (1877) 3 App Cas 193 at 207 (HL). 266. Bell v Thompson (1934) 34 SR (NSW) 431 at 436 per Jordan CJ. 267. Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 at 369–70 per Taylor and Owen JJ; Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319 per Windeyer J; Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [22], per McHugh J; Laybutt v Glover Gibbs Pty Ltd (2005) 221 ALR 310 at [10] per McHugh J. 268. Illawarra Area Health Service v Dell [2005] NSWCA 381 at [85] per Mason P. 269. Ryder v Wombell (1868) LR 4 Exch 32 at 38–9; approved in Hiddle v National F & M Insurance Co of NZ (1896) 17 LR (NSW) 46 at 49. 270. Hocking v Bell (1945) 71 CLR 430 at 441–2 approved by the PC in Hocking v Bell (1947) 75 CLR 125 at 130–1. 271. Luxton v Vines (1952) 85 CLR 352 at 358. Wright v Callwood [1950] 2 KB 515 (CA) is an example of a setting aside for want of direct proof of negligence. Kirby P’s statement in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 to the effect that no error of law occurs just because the trial judge prefers one set of inferences over another must be read subject to this caveat. In such circumstances, that is, where the trial judge is of the view that the inference is the more probable inference, it is not open to an appellate court to overrule that inference, irrespective of whether or not it would have arrived at the same conclusion: Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207 at [249] per Bell J. 272. Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [40] per McHugh J and cases cited therein. 273. Holloway v McFeeters (1956) 94 CLR 470 at 480. 274. Eggins v Canberra Enterprises Pty Ltd (1974) 2 ACTR 66 at 69 per Connor J; Chisholm v State Transport Authority (1987) 46 SASR 148 at 156–7 per Legoe J. 275. Jones v Dunkel (1959) 101 CLR 298 at 313 per Menzies J. 276. See Mahoney JA in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 at 68,939; Olssen J in Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431 at 443. 277. Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 8 per Kirby P. 278. St George Club Ltd v Hines (1962) 35 ALJR 106 at 107, applied in EMI (Australia) Ltd v BES [1970] 2 NSWR 238 at 243. 279. (1938) 60 CLR 336 at 361. 280. Or ‘more probable conclusion’: Richard Evans & Co Ltd v Astley [1911] AC 674 at 678; Dredge v South Australia (1994) 62 SASR 374 at 384 per Bollen J. 281. (1965) 115 CLR 140 at 149. 282. Some courts would confine the ‘actual persuasion’ test to the context of Briginshaw, which involved an issue of adultery: eg, Maher-Smith v GAW [1969] VR 371. In motor accident cases the ‘balance of probabilities’ test is most often used. See, eg, Carian v Elton [2006] NSWCA 168 at [116]. In Galea v Gillingham [1987] 2 Qd R 365 at 376 the ‘balance of probabilities’ test was applied to hold the appellant liable for failure to restrain his dog which had attacked the respondent.

283.

Dublin, Wicklow and Wexford Ry Co v Slattery (1878) 3 App Cas 1155 (HL) is an example of a case where both the proved facts (had the train blown its whistle?) and the inferences to be drawn from them (if not, did that amount to lack of reasonable care?) were in issue.

284. This rule has been approved by the House of Lords: eg, Metropolitan Ry Co v Jackson (1877) 3 App Cas 193 at 206 per Lord O’Hagan; Wakelin v LSW Ry Co (1886) 12 App Cas 41 at 45 per Lord Halsbury LC; and by the High Court: Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [36] per McHugh J. Its application in any given situation is less easy as illustrated by the differing views in Staines v Commonwealth (1991) Aust Torts Reports 81106 (Fed Ct, FC). 285. Luxton v Vines (1952) 85 CLR 352 at 358, citing in this regard an unreported (1951) decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Swain v Waverley Municipal Council (2005) 220 CLR 517 at [36] per McHugh J, noting the difficulties in proving that two inferences are ‘equally consistent’. 286. (1981) 148 CLR 62; 35 ALR 437. 287. (1959) 101 CLR 298 at 304–5. 288. (1952) 85 CLR 352. See also Wakelin v LSW Ry Co (1886) 12 App Cas 41 (HL). 289. (1952) 85 CLR 352 at 359–60. 290. Holloway v McFeeters (1956) 94 CLR 470 at 477. 291. (1930) 144 LT 194 at 196 (HL). 292. See Kirby J in Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [64]ff. 293. For example, in both Holloway v McFeeters (1956) 94 CLR 470 and in Luxton v Vines (1952) 85 CLR 352 the High Court split 3:2 on this issue. 294. An inference that the appellant motorist would have been able to avoid a collision with a pedestrian had her speed been slower is not necessarily an inference of negligent driving: Derrick v Cheung (2001) 181 ALR 301 at [13] (HCA). 295. [1970] 2 NSWR 238. 296. Cf Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 and Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1941] ALR 212, where the expert evidence regarded the various theories as ‘lacking justification either as a probable inference or as an accepted hypothesis’, so excluding a finding of negligence. 297. (1865) 3 H & C 596 (Ex Ch). 298. Per Erle CJ at 601. It is not necessary to plead the doctrine; it is enough to prove facts which make it applicable: Bennett v Chemical Construction (Great Britain) Ltd [1971] 3 All ER 822 (CA); the history of this doctrine and its basic principles are reviewed by Gleeson CJ and McHugh J in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 at [20]ff. The High Court declined the invitation to follow the lead of the Supreme Court of Canada in Fontaine v British Columbia (Official Administration) (1998) 156 DLR (4th) 577 to treat the doctrine as expired: see Kirby J at [88]–[89], [119]–[124]. 299. (1956) 96 CLR 99 at 114. Also Nominal Defendant v Haslbauer (1967) 117 CLR 448 at 461. 300. Government Insurance Office of New South Wales v Fredrichberg (1968) 118 CLR 403 at 413. 301. Lloyde v West Midlands Gas Board [1971] 2 All ER 1240 at 1246 per Megaw LJ. The Court of Appeal in Turner v Mansfield Corporation (1975) 119 Sol Jo 629 unanimously affirmed that

judgment. 302. Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 (Privy Council on appeal from the Court of Appeal in Hong Kong). 303. Because it is not strictly a particular of negligence, res ipsa loquitur need not be pleaded in evidence, although this is desirable, to put the other party on notice: Maitland City Council v Myers (1988) 8 MVR 113 at 114 per Kirby P; Southwell v Tomomotu (1992) 109 FLR 12 at 15 per Kearney J; so, too, reliance on res ipsa loquitur will not be precluded just because the plaintiff has also pleaded particular acts or omissions of negligence: Piening v Wanless (1968) 117 CLR 498; Anchor Products Ltd v Hedges (1966) 115 CLR 493; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 at [25] per Gleeson CJ and McHugh J. 304. (1959) 101 CLR 197 at 201. 305. Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 115. 306. [1950] 1 All ER 392 at 394 per Lord Porter. And see Swan v Salisbury Construction Co Ltd [1966] 2 All ER 138 (PC). In Richley v Faull [1965] 3 All ER 109 D’s car hit P’s car when D’s car was on the wrong side of the road. D proved that he skidded. Without mentioning res ipsa loquitur, the court reached the solution supported by commonsense that D was liable unless he showed that the skid occurred through no fault of his. Similarly in Henderson v Henry E Jenkins & Sons [1970] AC 282; [1969] 3 All ER 756 (HL), the sudden failure of brakes on a lorry owing to a corroded pipe in the hydraulic braking system was held to impute negligence to the owners. 307. Per Lord Dunedin in Ballard v North British Ry Co 1923 SC 43 at 54 (HL). 308. Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 497. 309. (1986) 4 NSWLR 600. 310. Ibid at 625. 311. Per Windeyer J in Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 497. 312. Nominal Defendant v Haslbauer (1967) 117 CLR 448 at 473. 313. Conversely, a defendant is not liable for an unexplained accident, to which res ipsa loquitur might otherwise apply, if the defendant establishes a lack of negligence: Barkway v South Wales Transport Co Ltd [1948] 2 All ER 460 at 463 per Bucknill LJ. 314. Byrne v Boadle (1863) 2 H & C 722 (flour barrel falling from upper window onto plaintiff, walking on the street below); Kearney v London and Brighton Ry Co (1870) LR 5 QB 411. 315. Ballard v North British Ry Co 1923 SC 43 (HL) (defective coupling on train); Davis v Bunn (1936) 56 CLR 246 (tyre and rim falling off motor car). 316. McGowan v Stott (1923), in (1930) 99 LJKB 357n (CA); Ellor v Selfridge & Co Ltd (1930) 46 TLR 236; Laurie v Raglan Building Co Ltd [1942] 1 KB 152; [1941] 3 All ER 332. 317. Skinner v London, Brighton & South Coast Ry Co (1850) 5 Ex 787; 155 ER 345. 318. Fosbroke-Hobbes v Airwork Ltd [1937] 1 All ER 108. 319. Lander v Australian Glass Manufacturers Co Pty Ltd [1962] SR (NSW) 152 at 157. 320. As to the suggestion that English courts have shown a greater willingness than Australian courts to draw the inference that in the ordinary course of things an accident is unlikely to occur without negligence, see Atiyah, ‘Res Ipsa Loquitur in England and Australia’ (1972) 35 MLR 337; McKelvy, ‘Res Ipsa Loquitur and Deja Vu: Dulhunty v JB Young Ltd and Ward v Tesco Stores Ltd’ (1978) 10 UQLJ 231.

321. Franklin v Victorian Railways Commrs (1959) 101 CLR 197. 322. Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48. 323. Pemberton National Park Board v Johnson [1966] WAR 61. 324. Causer v Stafford-Bell [1997] ACT SC 90. 325. Sochacki v Sas [1947] 1 All ER 344. 326. (1968) 117 CLR 498 at 507. 327. [1988] 1 Qd R 234. 328. Ibid at 250 per Ambrose J. 329. Scott v London & St Katherine Docks Co (1865) 3 H & C 596 at 601. 330. [1939] 2 KB 14; 1 All ER 535 (CA). 331. Ibid at 50; 561. 332. Ibid at 23; 541–2 respectively. It is impossible to be certain of the view of MacKinnon LJ in view of the conflicting reports perhaps the fullest of which is (1939) 108 LJKB 567. 333. Cassidy v Ministry of Health [1951] 2 KB 343; 1 All ER 574 (CA). 334. Fish v Kapur [1948] 2 All ER 176, contra if the patient swallows a throat pack: Garner v Morrall (1935) The Times, 31 October. 335. (1968) 41 ALJR 180 at 182 per Barwick CJ; approved Piening v Wanless (1968) 117 CLR 498 at 508; (failure of steering mechanism of motor car). And see Franklin v Victorian Railways Commrs (1959) 101 CLR 197 at 204 per Dixon CJ (young boy falling out of train when door opened unexpectedly). 336. Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 13 per Clarke JA. 337. The case is briefly reported at (1975) 119 Sol Jo 629 (CA). 338. Wing v London General Omnibus Co [1909] 2 KB 652 at 663–4 (CA). 339. (1923) in (1930) 99 LJKB 357n (CA). 340. Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 (jelly on floor of busy passageway); Brown v Target Australia Pty Ltd (1984) 37 SASR 145; Ward v Tesco Stores Ltd [1976] 1 All ER 219 (yoghurt spilled on floor of supermarket). 341. (1873) LR 8 QB 161. 342. [1944] KB 421 at 424; 2 All ER 425 at 429 (CA). 343. Lloyde v West Midlands Gas Board [1971] 2 All ER 1240 (CA). 344. [1962] SASR 33 at 42–3. 345. Kouris v Prospector’s Hotel Pty Ltd (1977) 19 ALR 343 (HC). This did not preclude a finding of negligence based on evidence led at the hearing. 346. As Griffith District Hospital v Hayes (1962) 108 CLR 50 shows, this is useful to the plaintiff particularly when dealing with a large organisation. 347. Cassidy v Ministry of Health [1951] 2 KB 343; 1 All ER 574, (CA). For more detailed examination of this concept from the standpoint of vicarious liability, see 26.7–26.8. 348. Mahon v Osborne [1939] 2 KB 14; 1 All ER 535 (CA). So held by Goddard LJ, cf Scott LJ.

349. Morris v Winsbury-White [1937] 4 All ER 494; perhaps Somervell LJ disagreed with this statement of law in Roe v Minister of Health [1954] 2 QB 66 at 80; 2 All ER 131 at 135 (CA); see also Elliott v Bickerstaff (1999) 48 NSWLR 214 at 235, where the situation was described as involving ‘divided responsibility’. 350. [1958] 3 All ER 33 (CA). 351. (1986) 4 NSWLR 600 (CA). 352. Ibid at 628. He added that the failure of a person in the position of the plaintiff to recover damages because of an inability to pin negligence on a particular defendant when one of them must have been negligent seemed unjust and should be remedied by legislation. 353. (1986) 4 NSWLR 600 at 617. 354. The use of the maxim in hospital negligence cases used by Kirby P to illustrate the point is not a valid analogy, for there the hospital is responsible (at least in a broad sense) for the actions of its staff. Neither the bottler, manufacturer nor retailer could be said to be responsible for the others’ actions. 355. (1986) 4 NSWLR 600 at 618. 356. (1965) 115 CLR 140. 357. Ibid at 155. 358. Ibid at 158 per Owen J. The court (at 157) rejected the proposition advanced by Denning LJ in Baker v Market Harborough Industrial Co-operative Soc Ltd [1953] 1 WLR 1472 at 1455 (CA) which followed Bray v Palmer [1953] 2 All ER 1449 (CA) that where one or the other is to blame, but not both, the judge ought to make up his mind between them. 359. (1986) 4 NSWLR 600. 360. Easson v L&NE Ry Co [1944] KB 421 at 423; 2 All ER 425 at 428 per Goddard LJ (CA). 361. For the clearest judicial statement, see the eight rules laid down by Evatt J in Davis v Bunn (1936) 56 CLR 246 at 267–8. 362. Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 at 399–400 per Lord Normand (HL). 363. Ballard v North British Ry Co 1923 SC 43 at 54 (HL). 364. Cole v De Trafford (No 2) [1918] 2 KB 523 at 258 per Pickford LJ; of course, when the appellate court hears an appeal from a judge sitting alone, ‘the true question is not whether the appellant adduced some evidence of negligence, but whether on all the evidence she proved that the respondents had been guilty of negligence in a relevant particular’ per Lord Radcliffe in Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 at 403 (HL). 365. McGowan v Stott (1923) in (1930) 99 LJKB 357n at 360 (CA); cf Greer LJ in Langham v Governors of Wellingborough School and Fryer (1932) 101 LJKB 513 at 518 (CA). 366. For example, Lord Evershed MR in Moore v R Fox & Sons Ltd [1956] 1 QB 596: 1 All ER 182 (CA). Also, Ludgate v Lovett [1969] 1 All ER 1275 (CA). It is sometimes asserted that the House of Lords decisions in Woods v Duncan [1946] AC 401; 1 All ER 420 (HL) and Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 lend further support, but the High Court of Australia, in Mummery v Irvings Pty Ltd (1956) 96 CLR at 120, has shown this to be an erroneous interpretation of those cases. 367. (1962) 108 CLR 50 at 54. The basic effect is to prevent the plaintiff from facing a non-suit:

Australian and Overseas Telecommunications Corp Ltd v McAuslan (1993) 47 FCR 492 at 500 per Miles J. 368. Jazairy v Najjar (1998) 27 MVR 498 at 505–6 (NSWCA). 369. Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 413 per Barwick CJ. 370. Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 at [72] per Gaudron J, at [108] per Kirby J. 371. Whelan v Padgett [1969] Tas SR 17 at 21 per Burbury CJ. 372. Davis v Bunn (1936) 56 CLR 246 at 260 per Dixon J. 373. Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 413 per Barwick CJ. 374. Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 at [109]–[110] per Kirby J. 375. Per Evatt J in Davis v Bunn (1936) 56 CLR 246 at 267. 376. Easson v L&NE Ry Co [1944] KB 421 at 425; 2 All ER 425 at 430. 377. Per Evatt J in Davis v Bunn (1936) 56 CLR 246 at 268. 378. Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 120 citing the House of Lords in Woods v Duncan [1946] AC 401 at 439. 379. Per Langton J in The Kite [1933] P 154; All ER Rep 234; Public Trustee v Western Hauliers Pty Ltd (1971) 1 SASR 27 at 29 per Bray CJ. 380. Per Lord Normand in O’Hara v Central SMT Co Ltd 1941 SC 363 at 377 quoting Lord Dunedin in Ballard v North British Ry Co 1923 SC 43 at 54 (HL); cited with approval in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 121. 381. (1967) 117 CLR 448 at 453. 382. Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 121. 383. For example, Moore v R Fox & Sons Ltd [1956] 1 QB 596; 1 All ER 182 (CA).

[page 309]

CHAPTER 9 Causation and Remoteness of Damage

9.1

Causation and remoteness of damage are concepts of general application in the law of torts. Nevertheless, their treatment in this context is justifiable on the ground that most major problems regarding them arise in relation to negligence. The most significant reason for this lies in the difference between negligence and the torts previously considered which are actionable per se. In the case of negligence the rules of causation and remoteness determine not merely to what extent damages are recoverable, but also whether the action succeeds at all, for this tort is actionable only if damage is proved and is linked, by causation, to the fault of the defendant.1 Legislation in all Australian jurisdictions other than the Northern Territory2 now provides a statutory basis for determining the questions both of the fact of there being a causal link between the defendant’s conduct and the harm suffered by the plaintiff, and of the scope of the defendant’s liability. It is assumed that in interpreting these provisions the courts will look to the general principles stated in this chapter.

Evidence of Causation 9.2 Before a case can be left to the jury, the plaintiff must discharge the preliminary task of submitting direct or circumstantial evidence3 which tends not only to show how the accident happened but which also permits a reasonable finding that the defendant’s conduct had some effect in producing the injury.4 This is a question of law.5 The mere fact, for example, of an

accident on the highway raises no presumption [page 310] of liability. It may result from a variety of causes, not all of which may be imputed to the fault of the person sought to be made responsible. It will be necessary for the plaintiff ‘to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from want of some precaution to which the defendant might and ought to have resorted’.6 The problem typically arises in occupier liability cases where it is necessary to prove that an appropriate system of inspection and cleaning would have secured the prompt removal of dropped or spilled material from the floor of the premises, thereby averting injury to the plaintiff.7 The task of the plaintiff is to establish a prima facie case that, on the balance of probabilities, the fault of the defendant caused8 or materially contributed9 to the injury;10 one measure being whether the defendant failed to take a step which more probably than not would have prevented or minimised the damage.11 The testimony must establish a legal inference and not mere conjecture that the act complained of contributed to the result, since a conjecture, however plausible, is of no legal value, its essence being only a guess.12 In deciding this, it may be relevant to take into account both common experience13 and expert evidence.14 The latter, even if available, is not, however, required as a matter of law,15 nor is it necessarily decisive.16 Where two or more hypotheses exist for the cause of an injury the evidence adduced by the plaintiff must do more than give rise to conflicting inferences of equal degrees, [page 311] for if it does only this the choice between them will rest on mere conjecture.17 This is not to say, however, that the evidence need establish as a certainty which hypothesis has caused the damage, but it must at least be reasonable to find a balance of probabilities in favour of that hypothesis.18 Accordingly, where the most the evidence could establish was that the presence of a satchel

in a school corridor may have resulted from a teacher’s negligent supervision, a schoolboy who injured himself by tripping over it was held not to have established this hypothesis with the requisite degree of probability.19 As noted by the High Court,20 the determination of such issues turns on consideration of the probabilities, not merely possibilities. The High Court in Suvaal v Cessnock CC21 has now held that a trier of fact is not entitled to find a case in negligence in favour of a plaintiff based on a version of events which neither the plaintiff nor the defendant had advanced but which, moreover, was expressly rejected by the plaintiff. When confronted with divergent arguments, the trier of fact may reject both and make findings not exactly representing what either party said. But this falls short of the creation of an entirely new case which the defendant had no opportunity or obligation to answer.

9.3 While continuing to maintain that the legal burden of proving causation remains throughout the proceedings on the plaintiff,22 the High Court nonetheless appears to have accepted that the evidentiary onus may shift, in the sense that, where the plaintiff has proved a breach of duty by the defendant and can establish that the breach increased the risk of injury and that risk eventuated, the defendant will be held liable in the absence of proof of an alternative cause.23 In McGhee v National Coal Board24 the plaintiff was able to recover damages from his employers, the National Coal Board, even though, due to a lack of precise medical knowledge, he was unable to prove conclusively that the dermatitis he developed had been caused [page 312] by their negligent failure to provide shower facilities. The House of Lords held that this omission had materially increased the risk of dermatitis which amounted for practical purposes to a finding that they had ‘materially contributed’ to his condition. The Court of Appeal in Wilsher v Essex Area Health Authority25 extended the McGhee principle by holding the defendant liable where, although it could be shown that the defendant’s conduct had materially enhanced an existing risk of injury, that injury might equally be attributed to a variety of other (unproven) causes. Mustill LJ interpreted McGhee as saying that the defendant will be taken by his or her breach of

duty to have caused the injury if it is an established fact that conduct of a particular kind creates or increases the risk of that injury, even though the existence and effect of the contribution made by the breach cannot be ascertained.26 So doctors who failed to notice that a premature baby was receiving too much oxygen were liable for the baby’s blindness even though excess oxygen was not the only possible cause of the injury. This decision was reversed on appeal to the House of Lords27 who, in so doing, firmly quashed any notion that McGhee had established a new rule shifting the burden of proof in such cases on to the defendant.28 What the court in McGhee had done, according to their Lordships, was simply to adopt ‘a robust and pragmatic approach to the undisputed primary facts of the case, the majority [concluding] that it was a legitimate inference of fact that the defender’s negligence had materially contributed to the pursuer’s injury’.29 However, in a series of cases since then, beginning with Fairchild v Glenhaven Funeral Services Ltd,30 the House of Lords has acknowledged not only that McGhee had undoubtedly involved a development of the law of causation31 but also that there are exceptional situations which cannot neatly be accommodated within conventional causation principles but where nonetheless good reason exists for departing from such principles to bridge the evidentiary gap.32 Principal among these are the mesothelioma cases where, due to the current state of medical knowledge, it is impossible to attribute causation on the basis of the ‘but for’ test. In these cases, on the ‘special rule’ developed in Fairchild the claimant need only establish, on a balance of probabilities, that the defendant’s act in exposing the claimant to asbestos materially increased the risk of contracting the disease. The refinement of this rule, introduced in Barker v Corus UK Ltd,33 to the effect that, where more than one defendant had exposed the claimant to the risk of contracting mesothelioma, each should be liable only for that portion of damages which represented its contribution [page 313] to the risk, has subsequently been overturned by legislation in the UK34 reinstating the principle of joint and several liability. In Sienkiewicz v Greif (UK) Ltd,35 the special rule was held to apply in mesothelioma cases where

only one defendant is proved to have exposed the claimant to asbestos, but where she was also at risk of developing mesothelioma from low-level exposure to asbestos in the general atmosphere. Not all the judges welcomed this development of the common law. Lord Brown, while not dissenting, cautioned against extending the ‘special rule’ to other scenarios not involving mesothelioma, noting that ‘the courts are faced with comparable rocks of uncertainty in a wide variety of situations’ and that the lesson to be learned from the mesothelioma cases was that ‘the law tampers with the “but for” rule at its peril.’36

9.4 In Chappel v Hart37 a patient suffered damage to her vocal cords and partial loss of her voice when infection set in following elective surgery. It was established that the operation had not been negligently performed but she had not been provided with adequate information about the possible risks. Treating the failure to warn as a breach of duty, and in the absence of evidence that the breach had no effect or that the injury would have occurred even if a warning had been given, a majority of the High Court held that causation had been established. For Gaudron38 and Gummow JJ,39 this was as a matter of inference whereas Kirby J40 held that a prima facie causal connection had been proved. Significantly, McHugh J41 held that: If a wrongful act or omission results in an increased risk of injury … and that risk eventuates, the defendant’s conduct has materially contributed to the injury … whether or not other factors have also contributed …

A similar approach was adopted in Naxakis v Western General Hospital,42 a case involving a failure on the part of hospital surgeons to test for and diagnose an aneurism which subsequently burst, resulting in the plaintiff suffering permanent physical and intellectual impairment. Holding that there was some evidence which, if accepted, would permit a jury to conclude that alternative diagnoses and tests should have been considered,43 the High Court ordered a retrial. After citing with approval the statement of McHugh J (above), Gaudron J elaborated on it further:44 … in that situation, the trier of fact — in this case, a jury — is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that

[page 314]

the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.

The principles established in Chappel and Naxakis have since been applied by state courts, albeit with some caution,45 eschewing, in particular, any mechanical application of a rule that the evidential onus automatically shifts once a breach of duty has occurred followed by an injury within the foreseeable area of risk46 — the risk must come home ‘in the sense that the court is ultimately satisfied on the balance of probability that the defendant’s breach caused or materially contributed to the harm actually suffered’.47 In Seltsam Pty Ltd v McGuiness,48 they were distinguished on the basis that, whereas in those cases the identified risk had eventuated, in Seltsam the evidence that the plaintiff’s injury (carcinoma) had been caused by the risk (exposure to asbestos) never rose above the level of a possibility. It was therefore not sufficient to establish causation for legal purposes. In Batiste v State of Queensland,49 Chappel and Naxakis were distinguished as cases where the failure to take the relevant precaution was the sole potential cause of the eventuation of the injury, whereas in Batiste several potential causes existed and there was insufficient evidence to show that, had the relevant precaution been taken, it would have prevented the injury. Australian courts have thus far refrained from adopting the line of authority established by the House of Lords and Supreme Court in Fairchild, Barker and Sienkowicz in mesothelioma cases; the NSW Court of Appeal in Evans v Queanbeyan City Council50 preferring to leave the policy questions involved in any conclusion that increasing risk is sufficient for a conclusion of causation or legal responsibility for resolution by the High Court. This did not prevent the court from expressing the view that Australian authority does not support a proposition of causation by increased risk ‘unless the increased risk is part of a body of evidence from which it can be legitimately inferred on the balance of probabilities that the tortious act caused or materially increased the risk’.51 The High Court in Amaca Pty Ltd v Ellis52 found it neither necessary nor appropriate to consider issues of the kind raised in the House of Lords, given the particular pleadings in the case before it. The facts in the case were, in any event, distinguishable from those in Fairchild53 in [page 315]

that the deceased, who died of lung cancer, had not only been exposed to asbestos in the workplace but had also been a heavy smoker. Subsequently, in Amaca Pty Ltd v Booth,54 the High Court upheld the primary judge’s decision that a motor mechanic’s exposure to asbestos dust liberated from brake linings manufactured by the appellants materially contributed to his contracting mesothelioma. In so doing the court held that an inference of factual causation was open on the evidence55 and that it was, accordingly, not necessary to consider the application of any modified concept of causation of the kind developed in Fairchild.56 It was contended in both Chappel and Naxakis that the damage suffered was loss of a valuable chance of successful surgery. On the view taken of the evidence in each case, the High Court did not consider it appropriate to view either situation as one of a lost chance. It therefore left open the question whether, when a lost chance of recovery, or avoiding loss, could be proved to result from a breach of duty, compensation for that lost chance was recoverable in tort.57 Nevertheless, obiter statements by Kirby,58 Gaudron59 and Callinan JJ60 might be seen as broadly supportive of the idea,61 at least in principle, although all acknowledged that the lost chance approach was not without its difficulties. More recently, in Tabet v Gett,62 the High Court held that to accept that the appellant’s loss of a chance of a better medical outcome was a form of actionable damage ‘would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants’, which was a step too far. Further, the ‘language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant’s negligence was more probably than not a cause of damage’.63 From the court’s point of view, policy considerations militated against, rather than for, changing the burden of proof of causation in medical negligence cases.64 Echoing Lord Hoffmann’s observation in Gregg v Scott,65 such a step would involve the adoption of possible rather than probable causation — a step too radical for the court to contemplate.66 [page 316]

Analysis of Causal Concepts

9.5 Every occurrence is the result of many causal conditions which are jointly sufficient to produce it.67 This complex of conditions includes conditions both antecedent and subsequent to the initiating action or event. When a trespasser drops a match in a field, the oxygen in the air, the combustible material in the field, the lighting and throwing away of the match, the breeze which subsequently fans the flames, are all parts of this complex. Each member of this complex is required to complete the set. For any kind of occurrence there may be more than one complex set of conditions, each set of which is jointly sufficient to produce that occurrence. In this event no one complex set is necessary; one can only say that it is sufficient. Recognising this, the courts do not require the negligent act complained of to be the sole effective cause of the injury68 although it must, of course, contribute to the injury in a real or material way. Within a particular complex, however, each condition is necessary. If only one complex sufficient to produce the occurrence is present, then each member of that complex is causally relevant. In this sense only may one speak of a causa sine qua non as a requirement of the plaintiff’s case: if the event could not have occurred unless that condition were present (‘but for’ that condition), the condition is necessary on that occasion. To that extent the notion of sine qua non assists in tracing causation in tort.69 However, where the facts are such that more than one complex can produce the same result, so that a condition may still be a cause even if the occurrence could have materialised in the absence of that condition, the sine qua non test offers no assistance. Suppose A and B simultaneously shoot P through the heart; both A and B have caused the death although the act of neither is a sine qua non — either of the two complexes, A’s shooting or B’s shooting, is sufficient.70 Moreover, in some circumstances, especially in the growing number of medical negligence cases,71 there is also the difficulty of establishing as a fact, after the event, what the patient would have done or declined to do had he or she been given the information which he or she was not given. Whatever the ex post facto rationalisation, the ‘but for’ test offers little assistance in deciding whether the patient would, for [page 317]

example, have consented to an operation if he or she had been informed of the slight risk of losing a limb. Accordingly, the ‘but for’ test, though deservedly praised for its convenience72 and for its commonsense basis73 and for the fact that it is ‘satisfactory enough for most purposes’,74 cannot be regarded as a complete answer75 in the search for the cause.76 While it remains a relevant criterion, it is not to be regarded as the exclusive test nor sufficient on its own to demonstrate the causal link for legal purposes.77 The Australian High Court78 has also pointed to the inadequacy of the ‘but for’ test in cases in which a superseding cause, amounting to a novus actus interveniens, has been held to break the chain of causation in cases where the earlier wrongful act, although regarded as an essential condition of the occurrence of the ultimate harm, was not regarded as the ‘true’ cause.79 Granted that each member of a set is essential to produce an occurrence, one must next consider, when there is only one set present, whether one condition can be selected from the complex as ‘the cause’. There is no precise legal rule, but common sense and law unite in looking for the abnormal or the deliberate human act, and regarding that as ‘the cause’.80 Oxygen in the air is normal: the deliberate throwing down of the lighted match is the cause of the fire, although the oxygen remains a necessary condition of the complex.

9.6 The possibility always remains that a cause will not be found. The jury, as the ‘lawfully constituted exponents of common sense’,81 are the final arbiters where the facts are controversial. Where two complex sets of conditions exist, only one of which involves negligence, and the jury finds itself unable to decide whether the injury is attributable to that complex, the action must fail.82 A plethora of expressions has been used by courts and academic writers alike to emphasise that the only relevant negligence is that which can fairly be considered as a cause of the injury. So it is said that the negligent act must ‘result in’, ‘lead to’, [page 318] ‘operate as a cause of’,83 or ‘be a factor in bringing about’ the harm suffered; alternatively, that it be a ‘substantial’, ‘material’ or ‘real’ cause of the injury.

As noted by the High Court in Fitzgerald v Penn,84 these terms, for all practical purposes, are equivalent and interchangeable. Moreover: [I]t is a mistake to attempt either to explain ‘causation’ as a general conception to a jury or to define for them a degree of closeness which must subsist in the connection between wrongdoing and damage. To begin with, it is not really necessary, because a jury is to be expected to have a sound common sense idea of what is meant by saying that one fact is a cause of another, and … it is all ultimately a matter of common sense … It [also] seems to us to create a risk of confusion. If one is once to enter on a philosophic examination of the meaning of ‘cause and effect’, there is no telling where one ought to stop85 … In many cases, of course, there can be no harm in using the words ‘material cause’ or ‘substantial cause’. But in many other cases an insistence on such an adjective … will … be only too likely to lead the jury away from reasonably clear and sound ideas which they would probably entertain without the help of an adjective.86

There is now an established line of authority in both Australia87 and the United Kingdom88 that causation is essentially a question of fact, not susceptible of reduction to any one philosophical or scientific formula such as the ‘but for’ test,89 [page 319] but rather to be resolved as a matter of common sense90 and experience.91 The reason for this distinction was stated by Mason CJ in March v E and MH Stramare Pty Ltd:92 In philosophy and science, the concept of causation has been developed in the context of exploring phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.

As acknowledged by the High Court in Chappel v Hart,93 the conclusion, as a result, is often reached intuitively94 and without a lengthy articulation of reasons. Nevertheless, wherever possible these should be identified because the question of causation in cases where science fails to provide a satisfactory answer ‘must ultimately be seen as involving a question of satisfaction of the burden of proof’.95 As to the role that policy considerations and value judgments play in this process, the High Court has repeatedly confirmed96 that such considerations may enter into the selection of those causative factors which are determinative of liability. However, in Travel Compensation Fund v Tambree,97 whereas a majority of the court was of the view that this should not be seen as ‘an invitation to formulate policy rather

than to search for principle’98 — the object being rather to ‘formulate principles from policy, and to apply those principles to the case in hand’,99 Kirby J eschewed the ‘supposed distinction between the “formulation of policy” and a “search for principle” as illusory, legal principle being no more than the distilled product of earlier decisions of legal authority and legal policy’.100 [page 320]

Remoteness of Damage 9.7 To determine the factual101 cause of an injury is but the first step in any causal analysis. Once (but only once) this has been ascertained,102 the need arises to determine for which consequences of the tort a defendant is answerable, or, as it is often put, to decide whether the injury or damage is not too remote a consequence.103 Legal causation is a vastly different concept from factual causation. It is not established by showing, without more, ‘that in the absence of a proved set of circumstances the event would or may not have happened, or, that a proved set of circumstances, in the widest sense, contributed to the happening of the event’.104 It is essentially concerned with the limits or extent of liability for conduct admittedly negligent105 or proven to be so. Although the word ‘remote’ has long had a place in the vocabulary of our law,106 particularly in relation to cause and consequence,107 and although it is commonly used, in contradistinction to ‘proximate cause’, to deny the award of damages, it continues to defy attempts at precise formulation. The idea of blanket responsibility, whereby a tortfeasor would be held liable for all the consequences of a negligent act, although considered by the courts,108 was jettisoned as impracticable. Instead, responsibility was limited to those consequences which were not too ‘remote’. For a time this was determined by reference to the ‘direct consequences’ test, epitomised in Re Polemis and Furness Withy & Co.109 This, in turn, was superseded by the ‘foreseeability’ test, established by the Privy Council in The Wagon Mound (No 1),110 Viscount Simonds there proclaiming that ‘it is the foresight of the

reasonable man which alone can determine responsibility’.111 This yardstick continues to be applied by the courts to mark the outer limits of tortious responsibility but, as will become apparent, that foresight has been imbued with remarkably elastic qualities, which enable the courts to regard as reasonably foreseeable even the most unlikely events and, conversely, to exclude [page 321] from consideration even commonplace results.112 The courts themselves have acknowledged that the foreseeability rule, ‘blessed and sometimes overworked’113 is not free from difficulties of application, because: [I]n one sense almost nothing is quite unforeseeable, since there is a very slight mathematical chance, recognisable in advance, that even the most freakish accidents will occur. In another, nothing is entirely foreseeable, since the exact details of a sequence of events never can be predicted with complete confidence.114

Foreseeable type of harm 9.8 The Wagon Mound held that if the damage which materialises is damage by fire, to be liable the defendant must have been able to anticipate damage by fire; anticipation of damage by fouling the wharf’s slipways was not enough. In England, an unbroken succession of subsequent cases at all levels115 has accepted that the harm suffered must be of a kind, type or class foreseeable as a result of the defendant’s negligence. So, the test of liability for shock is foreseeability of injury by shock.116 If a person suffers personal harm through contact, then it must be shown that harm through contact was foreseeable. A similar position pertains in Australia and, in relation to damage other than personal injury, in New Zealand. It is now well-settled law that, in order to establish liability for damages for a particular injury, provided the class of injury is foreseeable, the particular injury need not also be foreseen.117 The latter is regarded as a mere detail which no one could accurately predict but for which the wrongdoer nevertheless remains liable.118 Consequently, where physical injury is the foreseeable outcome of a highway accident, the wrongdoer remains liable

should death ensue.119 Nor is the kind or type of injury suffered to be confused with its extent. The victim is entitled to recover full damages even though the extent of the loss suffered may have been greater than could reasonably have been foreseen. A hotelier, the respondent in [page 322] Taupo Borough Council v Birnie,120 whose hotel was damaged by flood waters caused by the negligent construction by the Borough Council of works upstream, recovered not only his loss of profits arising out of the loss of accommodation but also $65,000 as compensation for the capital loss incurred by the subsequent forced mortgagee’s sale of the building. Mount Isa Mines Ltd v Pusey establishes the proposition121 that the rarity of an injury does not deny the foreseeability of the class of injury into which it falls: if mental disturbance of some kind is foreseeable as a possible consequence of the breach of duty, the defendant will be liable for the actual mental illness no matter how rare a clinical phenomenon it may be.122 Tort law in this regard imposes a wider liability than breach of contract. In contract the question is whether the defendant as a reasonable person did or should have realised, on the information available at the time of contracting, that the loss was sufficiently likely to result from the breach such as to regard it as flowing naturally from the breach.123 The defendant in tort will be responsible for ‘any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case’,124 unless the risk is so small that a reasonable person would in the circumstances feel justified in neglecting it.125 Although the risk must be ‘real’,126 foreseeability in tort is not restricted to foreseeability of those consequences which, after the event, can be characterised as ‘reasonable and probable’;127 even a remote risk may suffice.128 The requirement that damage of a ‘kind’ be foreseeable necessarily entails the process of classification. In the initial stages this process causes few difficulties, the three basic groupings being physical or bodily injury, psychological harm (nervous shock) and damage to property. Attempts at more precise classification often do prove problematical, as Tremain v Pike129 illustrates. A farmhand contracted a rare disease, Weil’s disease,

through contact with rats’ urine. The farmer was held not liable, on the ground that, although other diseases arising from the presence of rats were foreseeable, Weil’s disease was not. Payne J stated:130 [Weil’s disease] was entirely different in kind from the effect of rat bite, or food poisoning by the consumption of food or drink contaminated by rats. I do not accept that all illness or infection arising from an infestation of rats should be regarded as of the same kind.

[page 323] On the other hand, in Bradford v Robinson Rentals Ltd,131 a driver carelessly exposed by his employer to extreme cold in the course of his duties, and who consequently suffered frostbite, was able to recover. The foreseeable injuries here were listed as the common cold, pneumonia and chilblains. Frostbite was held to be of the same type and kind.132 While it would be difficult to quarrel with this decision, there appears to be no logical basis for the distinction between it and that in Tremain’s case; however, as was noted in Hird v Gibson,133 in these matters logic is not the only consideration; policy often plays a decisive role. The most blatant illustration of this lies in the fact that for many years recovery of damages arising out of nervous shock was denied essentially on policy grounds while today the same considerations lead to a quite different result.134 Remoteness, although grounded on foreseeability, remains a concept elusive in its application to the facts. No doubt further difficulties in the classification of harm will arise in the course of applying this rule, but the principle that the damage sustained must be of the same kind as the foreseeable damage is now firmly established.

The means by which the harm was caused 9.9 With increasing frequency since The Wagon Mound the courts say that the defendant may be liable even though he or she could not envisage the precise set of circumstances which produced harm of the foreseeable kind. What must be foreseen is injury of a given description — the genus — rather than the precise injury which occurred — the particulars.135 The trend of the cases is towards the proposition that it is only when the accident is caused by the intrusion of some new and unforeseen factor that

the way in which the damage was caused is relevant. A person carelessly carrying a hot tea urn near children would not be liable if it were upset and caused damage because the ceiling collapsed, as the fall of the ceiling would be an extraneous cause.136 The leading decision is Hughes v Lord Advocate137 where post office maintenance workers in Edinburgh, Scotland, temporarily left unattended a manhole in which they had been repairing underground cables. Two inquisitive lads, aged eight and 10, decided to explore the shelter tent erected over the manhole. The former stumbled over a lamp which he had picked up in the tent and knocked it into the hole. An explosion followed when paraffin from the lamp vaporised and was ignited by the flame, causing the lad to be thrown into the hole and to sustain severe injuries. Both lower courts dismissed the claim on the basis of The Wagon Mound (No 1) but the House of Lords reversed the finding, holding the defendants liable even though the particular chain of events that occurred constituted an ‘unexpected [page 324] manifestation of the apprehended physical dangers’.138 The workers’ conduct had created the risk of the kind of harm, that is, personal injury by fire, which materialised and ‘the resulting damage, though severe, was not greater than or different in kind from that which might have been produced had the lamp spilled and produced a more normal conflagration’.139 The courts below had concentrated on the explosion as the agent of the burning, holding this to be unforeseeable because it was the product of a unique set of circumstances, and therefore the accident was not foreseeable either. Lord Guest held this reasoning to be fallacious and the explosion an immaterial event in the chain of causation: An explosion is only one way in which burning can be caused. Burning can also be caused by the contact between liquid paraffin and a naked flame. In the one case paraffin vapour and in the other case liquid paraffin is ignited by fire … They are both burning accidents and in both cases the injuries would be burning injuries.140

The opposite conclusion in Doughty v Turner Manufacturing Co Ltd141 may be rationalised on the basis that the general state of knowledge at the time

was such that no reasonable person would have expected such an incident to occur. The risk that materialised (damage by explosion) was thus quite different from that which was foreseeable (damage by splashing). This exemplifies the warning sounded in Jolley v Sutton London Borough Council142 that comparing facts and outcomes of other cases is to misuse precedent; instead, the precise manner in which the injury came about and its extent should be determined ‘in the context of an intense focus on the circumstances of each case’.

9.10 Both the Australian High Court143 and the New Zealand Court of Appeal144 have categorically stated that it is unnecessary for the plaintiff to prove that the precise manner of sustaining an injury was reasonably foreseeable. Any such requirement would effectively dispose of most tort actions, the facets of misadventure being notoriously innumerable. Consequently, the courts have adopted the view that, once the plaintiff is one of a class of persons who might foreseeably be injured, and provided that the damage that occurs is of a class, kind or category that is foreseeable, the fact that the ‘precise concatenation of circumstances which led up to the accident’145 was not envisaged will not defeat the claim. The test is whether, in the circumstances, the defendant could reasonably have foreseen, in a general way, the kind of accident that might result from the negligent act,146 whether ‘some such sequence of events’ as those that actually occurred was foreseeable.147 Thus, a tea lady who was playfully thumped in the small of her back by a fellow employee was able to recover damages for a prolapsed disc occasioned by [page 325] her twisting around sharply as a result of the blow.148 Similarly, recovery was allowed to an employee who suffered severe internal injuries when compressed air entered his intestines through his rectum after a workmate carelessly brought a high pressure hose into contact with his body.149 It was accepted by the court in both cases that neither the exact injury nor the precise manner in which the injury came about was foreseeable although the general sequence of events certainly was. And, since it was foreseeable that the defendant’s pack of terrier dogs would bowl over and scratch children,

the defendant was liable when one of them bit the plaintiff child without bowling it over.150

Existing physical states 9.11 Before The Wagon Mound it was established law that the victim could claim damages for all physical harm, even though, owing to some special bodily sensitivity, it was greater than would have been suffered by the ordinary individual. Thus, the haemophiliac151 or the extreme neurotic152 who sustained greater damage than the ordinary person have recovered the full extent of their damage, even though the defendant could not have foreseen this extended harm. This is a principle of compensation which comes into operation once the question of liability has been settled.153 The courts have held that The Wagon Mound has not affected this principle. The first English case decided in this mould was Smith v Leech Brain & Co Ltd.154 Here a negligently inflicted burn on P’s lip resulted in P’s dying of cancer, for the tissues of the lip in which the cancer developed were in premalignant condition at the time when the burn made the cancer develop. In holding the defendant liable for the damage resulting in death, Lord Parker CJ pointed out that the Privy Council had proceeded throughout on the basis that tortfeasors must take their victims as they find them. Once the type of injury, in this instance, a burn, is foreseeable, the extent or amount of damage suffered depends upon the characteristics and constitution of the victim.155 Lord Parker CJ’s decision appears to have remained unchallenged ever since. The New Zealand Court of Appeal in Stephenson v Waite Tileman Ltd noted156 that, while there has been no real advocacy of abolition of the ‘thin skull’ rule, ‘the difficulty has been rather to find a satisfactory theoretical basis whereby to reconcile such cases with the principle of foreseeability of damage’. While some academics adhere to the view that the rule is a justifiable exception to the foreseeability principle,157 [page 326] most courts prefer the notion that no inconsistency exists.158 The tortfeasor in

a road accident should be aware of the unpredictable elements of even the simplest accidents; and that negligence may lead ‘to any consequence between a negligible abrasion and permanent incapacity or death, depending in some measure on the idiosyncrasies of the victim’.159 Victims of negligence have continued to recover damages for latent physical conditions activated by the accident,160 for unusual physical reactions to standard medical treatment consequent upon an accident,161 as well as for psychosomatic disorders triggered by a predisposition to neurosis162 or an antecedent vulnerability to depression.163 Moreover, the tortfeasor will be liable when the negligent act hastens the onset of an illness or physical condition that would have befallen the victim at some future time,164 although the damages awarded here may be adjusted accordingly: see generally 9.18–9.19. The same applies to the aggravation of a pre-existing injury.165

9.12 There is scant authority as to whether the same principle applies to property damage, for example, where the plaintiff’s car is hit by the defendant’s car and the damage to the bodywork is more extensive because of the existing rusty state. Logic dictates that this loss should be recoverable, a view espoused by the New South Wales Supreme Court in McColl v Dionisatos.166 Presumably, the defendant takes as he or she finds them not only the physical state of the damaged person or property, but also the surrounding external physical circumstances. This is the crux of Great Lakes SS Co v Maple Leaf Milling Co.167 The defendants negligently failed to lighter the plaintiffs’ ship at the time stipulated. When the water level fell the ship grounded and was damaged. This damage was more extensive because the ship settled on a large submerged anchor which the defendants neither knew nor could have expected to be there. The defendants were liable for all the damage to the ship. The decision must be regarded as correct: [page 327] the damage was of a foreseeable type; it was of greater extent than foreseeable, not because of any internal characteristics of the property, but

because of special external circumstances. No doubt the same rule applies to personal injuries: the defendant who negligently causes the plaintiff to stumble and slide off the edge of a precipice concealed from view, will be liable for those consequences of the risk of stumbling. The principles established in The Wagon Mound do not affect this. Once the ‘stage is set’, the defendant’s liability is adjudged accordingly.

Ulterior harm 9.13 ‘Ulterior harm’ is harm caused by a contingency which occurs after the event which the defendant failed to foresee and guard against, and which is causally independent of that event.168 The defendant is not liable for all ulterior harm. In marking off the limits of liability it will not ordinarily matter whether we use the language of risk or cause. The individual run down by the defendant’s negligence cannot recover for the extra damage sustained when hit by a falling tile on entering the hospital. One could say that the defendant’s conduct did not create a special risk of harm from that kind of contingency, or that the falling tile was a coincidence, that is, the original negligent driving and the subsequent fall of the tile were independent acts; the conjunction of the two events was abnormal and not contrived by human agency. Re Polemis had no effect on these well-recognised rules, for, as Lord Porter has pointed out in the House of Lords, the case accepted that foreseeable consequences were recoverable, whether direct or otherwise.169 In order to establish liability it is necessary to examine the nature of the ulterior harm. If it is such as to break the chain of causation, the original defendant will not be responsible for the ensuing consequences. It is said here that the later act or event is a novus actus interveniens, that is, ‘a new act which gives a fresh origin to the after consequences’.170 Whether the chain of causation has been broken is a question of circumstance and degree171 to be decided upon the facts of each particular case. The ulterior harm could result from human action172 or a natural event. In the latter instance the intervening occurrence, to be sufficient to sever the connection, must be a causally independent event the conjunction of which with the tortious act is by ordinary standards so extremely unlikely as to be

termed a coincidence.173 Although acts of God would fall into this category, there are situations where the [page 328] defendant might well be liable for failure to foresee and adequately guard against natural events, such as storm or flood damage.174 The point is sometimes made that human action, if it is voluntary, will sever the causal connection.175 This statement requires qualification. Some cases suggest that if the defendant should reasonably have foreseen the later act, whether it be lawful or unlawful, negligent or intentional, the defendant remains liable.176 This view, too, should be treated with care, for, as one judicial comment has it,177 over the years the courts have undoubtedly developed the capacity to foresee even quite bizarre consequences of accidents. Consequently, foreseeability can provide only a limited guide where human factors intervene in the causal process. Here, as elsewhere, foreseeability is not in itself a test of causation, but simply marks the outer limits of responsibility.178 The observation of Lord Wright in The Oropesa179 continues to offer the most assistance: The mere fact that human action intervenes does not prevent the sufferer from saying that injury which is due to that human action as one of the elements in the sequence is recoverable from the original wrongdoer … To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.

9.14 A few typical cases will illustrate how the courts handle the problem of intervening acts. In the well-known case of Scott v Shepherd180 it was held to be no defence to the person who first threw the squib that the plaintiff would have suffered no loss had not a third party picked it up and thrown it again after the defendant had thrown it, because the third party, in throwing it, was acting in self-preservation. In short, where the act of the defendant has placed a third party or the plaintiff in a situation of ‘alternative danger’, if that person acts reasonably in the agony of the moment, that act will not make the ensuing damage too remote a consequence of the act of the defendant. In The City of Lincoln181 the plaintiff’s ship lost its compass and charts when the defendant’s ship negligently collided with it; consequently,

the plaintiff’s ship ran aground while trying to make for port: the defendant was liable for this further harm. [page 329] The High Court in Sutherland Shire Council v Heyman held182 that in a situation where there is a duty to take a precaution against the risk of damage occurring to others through the default of a third party or an accident, ‘breach of the duty may be regarded as materially causing or materially contributing to that damage should it occur’. Accordingly, where in Parramatta City Council v Lutz the defendant council had a duty to take steps to prevent an abandoned property from becoming a fire hazard but failed to do so, the suggestion that the council was excused from liability for the resultant destruction of a neighbouring cottage because an unknown third party had actually lit the fire was rejected.183 Reeves v Metropolitan Police Commissioner184 may also be explained on this basis. The prisoner’s suicide was not a novus actus interveniens because ‘foresight of its possible occurrence was … the reason for placing the defendants under their duty [to prevent that very suicide] in the first place’. Similar reasoning was applied in Travel Compensation Fund v Tambree185 where the unlicensed and illegal activities of a travel agent were held not to sever the causal link between the negligence of the fund’s auditor and accountant and the subsequent loss suffered by the fund, as the whole purpose of the fund was to protect the public against loss resulting from dealing with defaulting agents. Also, damage incurred in rescuing a person imperilled by the act of the defendant is not too remote where the possibility of such rescue could have been anticipated;186 further, a guard, injured while trying, in the course of duty, to extinguish a fire in the premises of an employer, may recover,187 as may a police officer injured during a high-speed chase of another vehicle.188 In Haber v Walker,189 where the injuries negligently inflicted by the defendant on the plaintiff’s husband left him mentally unbalanced and caused him to take his own life, the defendant was held liable to the plaintiff. The court held that the chain of causation between the defendant’s negligence and the death was unbroken, and that the act of suicide amounted to the totally involuntary response of an insanity directly brought about by the negligent

act. Because of this finding the court had no need to consider whether the suicide would have been a novus actus interveniens had the plaintiff’s husband not been insane, although Lowe J did express the view190 that ‘[t]o hold that the conscious act even of a sane person necessarily breaks the chain of causation is inconsistent with the decision of the High Court in Chapman v Hearse’.191 [page 330] In each of these cases the subsequent events were not sufficiently abnormal responses to the situation created by the defendant’s negligence so as to label them ‘ultroneous’ within the meaning attributed to that word by Lord Wright; the kind of happening ‘was on the cards’, even though of course one could not say that, looked at when the defendant committed his or her act, this event was ‘probable’.192 For the same reason, when the defendants negligently inflicted neck injuries on the plaintiff so that her neck had to be put in a collar, and she later fell over on the footpath because, due to the collar, her vision was restricted so that she could not see immediately in front of her, she recovered for that further injury.193

9.15 If, however, the plaintiff’s subsequent act is unreasonable, there is no recovery for additional injuries.194 It was on this basis that the court in McKew v Holland & Hannon & Cubitts (Scotland) Ltd195 held that the defendant, although responsible for initially injuring the plaintiff’s leg, was nevertheless not liable when the plaintiff subsequently fractured an ankle in trying, alone and without even the assistance of a handrail, to descend a steep staircase.196 In deciding on the reasonableness197 of the plaintiff’s subsequent act, the plaintiff’s family and cultural background may be a relevant factor.198 While the courts have leaned to the view that the degree of unreasonable conduct needed to breach the chain of causation is very high, ultimately, the question is fact-sensitive, necessitating a value judgment being applied to the facts as found.199 Where the plaintiff’s subsequent act, although it would not have occurred ‘but for’ the defendant’s original tortious act, results in the plaintiff’s conviction and sentence for a crime, the House of Lords in Gray v Thames Trains Ltd200 found itself persuaded by the reasoning of Samuels JA in State

Rail Authority (NSW) v Wiegold201 that the plaintiff should bear the consequences of the punishment, both direct and indirect. For ‘if the law of negligence were to say, in effect, that the offender was not [page 331] responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought’ and bring the law into disrepute. It must be acknowledged that this reasoning is underpinned by strong public policy considerations.202 The defendant will not be held accountable for the subsequent unreasonable act of a third party although what constitutes unreasonable behaviour may ultimately depend on a value judgment of the court. Some older authority would deny pain and suffering damages in respect of marriage breakdown as where, in an action for damages for personal injury, the defendant motorist was held not liable when the plaintiff’s wife, believing him to be no longer capable of sexual intercourse, deserted him, taking with her the child of the marriage.203 More recent case law suggests that the possibility of desertion by a partner following a disfiguring accident is sufficiently commonplace, in light of the complexities which go to form human relationships, for it to be viewed as reasonable and foreseeable.204 These principles are flexible and their application is sometimes difficult. However, any doubts as to whether the plaintiff can recover for prolongation of an incapacity resulting from careless medical treatment of initial injuries have now been resolved by the High Court. In Mahony v J Kruschich (Demolitions) Pty Ltd the court held205 that although inexcusably bad medical advice will break the chain of causation, the mere fact that a medical operation206 or course of treatment is unsuccessful or even that it was not the best available207 will not. In this regard the court endorsed the view208 that, provided the plaintiff acts reasonably in seeking and undergoing medical treatment, the original injury carries with it some risk that the treatment itself may be negligent (or otherwise not in the best interests of the patient). The position of the plaintiff who disregards medical advice209 or who declines all treatment remains unclear.210

9.16 In marginal cases the courts have felt free to hold the defendant liable utilising an approach based on the principle of risk. In Chomentowski v Red Garter Restaurant Pty Ltd211 the employee manager of a restaurant who was attacked and robbed while depositing the restaurant’s takings in the night safe of a bank in the early hours of the morning successfully sued his employers for breach of their duty to take reasonable care for his safety. The court held that it was not open for the defendants to rely on the novus actus interveniens doctrine ‘[f]or to do so in a case where the very [page 332] duty relied upon is not to expose the plaintiff to the risk of harm by wrongdoers would be not merely to assert a break in the chain of causation but to deny the existence of the duty itself’.212 A similar approach has been employed to hold the defendant liable in cases where the facts show that the defendant’s negligent conduct led to the very risk of injury that subsequently occurred. For example, a decorator who carelessly left unlocked the house in which he had been working while he went to fetch more wallpaper was liable to the owner for items stolen by a thief while the premises were unattended;213 and a houseboat owner who negligently gave teenagers using his houseboat access to an airgun was held responsible when one of them accidentally shot another in the eye.214 The damage described above resulted from the deliberate, subsequent and independent conduct of a third party but the risk approach has also been used in cases where the subsequent conduct was negligent rather than deliberate and where it was the plaintiff’s own conduct rather than that of a third party. March v E & MH Stramare Pty Ltd is a case in point, Mason CJ noting that: As a matter of logic and commonsense it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant’s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things.215

In the case of the pedestrian who is knocked down in the dark by the defendant’s car, application of either risk or causative principles will result in holding the defendant answerable for the further harm inflicted by another

motorist who runs over the pedestrian lying in the road,216 but only application of the doctrine of risk could make the defendant answerable for the pickpocket who steals the pedestrian’s wallet as he or she lies unconscious. Policy considerations may assume an important role in deciding which approach to use. The defendants in Lamb v Camden London Borough Council217 carelessly broke a water main outside the plaintiff’s Hampstead house. The escaping water undermined the foundations and the house subsided so that until repaired it was uninhabitable. Squatters moved into the unoccupied house, and by the time they were evicted had done damage totalling £30,000. The only issue was whether that damage was too remote. Lord Denning held that this was a question of policy. Considering that the plaintiff could readily have insured against the risk and could have taken more steps to guard against squatting, and that the defendants had no right to enter the premises, policy dictated that the damage be held too remote even though it was foreseeable.218 Oliver LJ in the same [page 333] case wrestled with the contention that the ratio of Lord Reid’s judgment in Home Office v Dorset Yacht Co Ltd219 was that a subsequent act will be too remote unless that act was likely to happen. He found Lord Reid’s statement to be obiter and that the subsequent act in the case at bar was neither likely nor reasonably foreseeable. He added that he did not dissent from the view of Lord Denning that, on grounds of policy, foreseeable acts could still be too remote.220 Watkins LJ held that words such as ‘possibility’ or ‘unlikely’ did not assist him. Even though the act was reasonably foreseeable it was too remote. He reached this conclusion by adopting ‘a robust and sensible approach’. His conclusion was:221 I have the instinctive feeling that squatters’ damage is too remote. I could not possibly come to any other conclusion, although on the primary facts I, too, would regard the damage or something like it as reasonably foreseeable in these times.

These judgments eloquently demonstrate the flexibility and inherent uncertainty surrounding the issue of whether a particular subsequent act is to be adjudged too remote a consequence of the defendant’s negligence.222

Concurrent Causes 9.17 The same damage can be brought about in a factual sense by more than one set of conditions, each sufficient in itself or in combination with other causes. These may be described as concurrent causes.223 Not all concurrent causes will lead inexorably to legal liability; therefore, each must be carefully examined in order to ascertain which of them, if any, ought to be regarded as the substantive legal cause of the harm. There may also be situations where the damage is in fact caused by separate tortious acts which are not concurrent. Although the tortfeasor is, in principle, liable only for that proportion of the damage which he or she has caused, this has practical implications affecting the pleadings and burden of proof. The examples provided by the New Zealand Court of Appeal in Lankshear v Fair224 may help to illustrate the difference between the two situations. In the first example two dogs go out at different times on the same night to the plaintiff’s farm to worry the plaintiff’s sheep. The damage caused by each dog constitute separate torts and the extent of each must be proved by the plaintiff.225 In the second example, where two or more dogs belonging to different owners go together and participate in a raid on the plaintiff’s sheep, the raid becomes a joint affair. In this situation, once it is established that the [page 334] damage was caused in a factual sense by the combined actions of the animals, in order to avoid liability for the entire damage, the owners of each dog must establish affirmatively the particular part of the damage done by their dogs, and also that they acted independently of the other dogs and not in concert with them. Such an onus, it may be appreciated, is for all practical purposes generally impossible to discharge, in which event the injury will be treated as indivisible.226 The second example also brings out the point made at various times by other courts227 that, where damage is sustained as a result of the activity of several concurrent tortfeasors, it is not for the victim to demonstrate that he or she would not have suffered damage without the contribution made by a particular party; the burden of proof in this regard lies

on the parties attempting to exonerate themselves. If two tortious acts result in damage, and either one would have produced the same damage, as when merging fires burn out a building, then the perpetrator of each act is responsible for the whole damage, because each act is a substantial factor in producing the result.228 Similarly, if two independent acts simultaneously bring about the same damage, as where two ships negligently collide, injuring a third party,229 those responsible for the respective negligent acts are each fully liable. This rule is often applied to injuries sustained in motor vehicle accidents where the tortious acts of the drivers, though independent of each other, are both necessary to produce the ensuing harm. Concurrent causes need not be simultaneous. If the defendant commits a tort (or an act which will become a tort if non-remote damage ensues) and, before the act spends its force, some later tortious act combines with it to produce a particular result which would not have been produced without the operation of the second act, then the defendant will be liable if, and only if, it is found, by applying the rules already stated, that his or her act caused the damage.230 By the same token the tortfeasor later in time will also be liable. Chapman v Hearse231 provides a clear example. There the negligent driving of both parties, separate in time, combined to produce the same injury, namely, the death of Dr Cherry. Hearse’s later negligence was held not to have broken the chain of causation, thereby ensuring Chapman’s continued responsibility. Hearse, though, was held to be a concurrent tortfeasor. Each was therefore liable in full to the grieving widow and children despite the court’s assessment that Chapman was primarily232 to blame for the fatality. [page 335] Similarly, in Commonwealth v Martin233 the Federal Court rejected the argument put forward by the Commonwealth that, in a case where death occurs in the wake of two successive acts of negligence, a choice must be made as to whether the death is caused by the original or by the subsequent act. While the inquiry might isolate one or other of those acts as being the sole cause of the death, this was a far cry from saying that as a matter of law one cannot reach the conclusion in an appropriate case that both acts caused

the death.234 This approach has the benefit of ensuring that victims are generally in a position to recover damages in full; that in such cases liability is subsequently apportioned ensures that each tortfeasor is in fact responsible for his or her fair share of the harm.235

Accelerated Injury or Death 9.18 The inevitability of death for all mortals is beyond doubt, so in one sense any injury which causes death is a case of acceleration.236 However, the term ‘acceleration’ is more commonly reserved for those occasions where the advent of death is appreciably237 brought forward to a point earlier than would in all probability have been the time of death had the tortious act not intervened. Two situations spring to mind. The first is where a tortious act inflicts injury on a person with a pre-existing terminal condition which is likely to lead to an early death, activating or aggravating that condition, thereby shortening the lifespan even further. The facts in Golder v Caledonian Railway Co238 are typical. Here a railway worker suffered from a disease, nephritis, which, according to the medical evidence, was likely to prove fatal, though probably not for some years. After suffering injury when working with a railway trolley, the nephritis flared up, leading to his immediate and premature demise. The defendant was held responsible for the accelerated death. Another example is a blow which activates a cancer caused by a premalignant but dormant condition of the victim, bringing about early death.239 In the second situation, the tortious act creates a physical weakness of some sort which predisposes the victim to a later fatal injury. In the event that a subsequent occurrence or illness or disease actually brings about death, and to the extent that the supervening event could fairly be regarded as a normal consequence of the defendant’s act, the subsequent event and the death are together to be considered as [page 336]

sequelae of the tortious act. There is consequently no break in the chain of causation, and the defendant will be held liable for the accelerated death.240

9.19 The notion of acceleration applies also to physical injury short of death. In Hole v Hocking241 a passenger in a motor vehicle sustained injury, including a blow to the forehead, in an accident involving the vehicle, caused by its driver. He subsequently suffered a subarachnoid haemorrhage with resultant brain damage. The medical evidence suggested that although the accident had probably contributed to the haemorrhage occurring when it did, the accident could not have had this effect had the haemorrhage not in any event been due to happen in the near future, whether spontaneously or as the result of some trivial incident that might well involve no responsibility on the part of any other person. The passenger was held entitled to recover damages in respect of the period of acceleration as well as for anything that he may have suffered by virtue of the haemorrhage being more extensive than it otherwise would have been. But he was not entitled to recover for the fact of the haemorrhage per se, because, while a tortfeasor is no doubt responsible for the damages that flow from the wrongful act, there is no responsibility for harm that would have ensued in any event. The court in Zumeris v Testa242 suggested that a distinction be drawn between accelerated injuries which are curable and those which are not. Where the injury is incurable, the damages must compensate the victim for any ill effects suffered during the period of acceleration, while later injury should be disregarded for purposes of the assessment. Where the injury, brought forward in time by the accelerating effects of a tortious act, is capable of cure or alleviation by corrective medical measures, the position is different. In effect, what happens here is that the condition, which was bound to occur sooner or later, and which, ex hypothesi, could have been cured at a later date, is, because of the tortious act, now found to be curable at an earlier time, thereby reducing rather than increasing the period of the plaintiff’s suffering. In such circumstances the victim in reality suffers no damage during the period of acceleration unless he or she can establish243 one or more of the following factors:244 1.

any injuries over and above those which were inevitable;245

2.

the realities of present pain and suffering as compared to that merely prognosticated;246

[page 337] 3.

the fact that the precipitated ill health has robbed the victim of possible insulating effects that the normal vicissitudes of life may have provided if the period of ill health had in fact occurred later;247

4.

the extent to which the remedial treatment may be expected to be only partially effective or allowance is required to be made for the risk that it will not be successful.

Any victim of accelerated injury who refuses or fails to undergo corrective or palliative medical treatment, including surgery, may be found to have unreasonably neglected to mitigate his or her damages.248

Successive Injuries 9.20 Bearing in mind always that defendants should be held liable only for those injuries actually caused by their negligence, it is necessary to consider the situation where the plaintiff suffers different injuries in the pre-trial period brought about by successive and totally unrelated events. The discussion of the vicissitudes principle in 9.21–9.22 approaches the matter largely from the perspective of the original tortfeasor and attempts to establish the point at which the limits of responsibility are reached. In 9.23–9.24 the rule that you ‘take your victims as you find them’ is examined, looking at the problem mainly from the perspective of the tortfeasor later in time and discussing the point that liability here is limited to additional harm brought about by the later event.

The vicissitudes principle 9.21 One of the issues that has bedevilled courts both here and abroad is how to assess the liability of a tortfeasor where the injury or damage that has been caused by that tortfeasor has been compounded by the effect of later but unrelated events which take place in the pre-trial period. The supervening event may itself be tortious but does not invariably take this form. Assuming the initial action to be tortious, the question for the courts is whether and to what extent the supervening event is to be taken into account in measuring

the liability of the first tortfeasor. One way of approaching the question is to consider whether the supervening event is to be regarded as a vicissitude of life. If so it must then be taken into account as a factor limiting the defendant tortfeasor’s liability. As we shall see, this principle when adopted by the courts invariably leads to a result different from that which emerges from an application of any theory of concurrent causes. Three major decisions will now be discussed, two emerging from the House of Lords, the third from the High Court. The facts in each case are not altogether dissimilar. In Baker v Willoughby,249 the earliest and most controversial of these cases, the plaintiff’s left leg was injured in a motor accident brought about by the negligence of the defendant. Three years later, but before an action for pain, discomfort, loss of amenities and loss of earning capacity was heard, the plaintiff was shot in the same [page 338] leg by an armed robber. The leg had to be amputated. The defendant argued that the award of damages to the plaintiff ought to take into account the fact that the second injury, by removing the very limb from which the earlier disability stemmed, had submerged or obliterated the effect of the first, and that all loss suffered thereafter was attributable solely to the second injury. While agreeing that it was proper to lead evidence at the trial as to any events between the time of the accident and that of the trial which are relevant for the assessment of damages (thereby applying the vicissitudes principle), the House of Lords preferred to rely on the theory of concurrent causes.250 Lord Reid251 distinguished between (1) later injuries which reduce the disabilities from the injury for which the defendant is liable or which shorten the period during which they will be suffered by the plaintiff; and (2) later injuries which merely become a concurrent cause of those disabilities. Only in the former instance would the defendant have to pay less damages. Here, added Lord Pearson,252 the supervening event had not made the plaintiff ‘less lame nor less disabled nor less deprived of amenities. It has not shortened the period over which he will be suffering’. Accordingly, the court refused to reduce the damages occasioned by the defendant’s negligence. This approach has since been disavowed in Jobling v Associated Dairies

Ltd.253 The plaintiff had suffered a partially disabling back injury at work for which he claimed, inter alia, loss of future earnings. Three years later but before the date of the trial, the plaintiff developed an unconnected condition which would, in any event, have proved totally disabling. The Law Lords were unanimous in their view that ‘the onset or emergence of illness is one of the vicissitudes of life relevant to the assessment of damages’.254 Consequently, they upheld the decision of the Court of Appeal that the defendant’s damages fell to be reduced to the extent that the further disability was a cause of the plaintiff’s loss. Their Lordships questioned the approach to the problem of successive injuries previously adopted in Baker v Willoughby, pointing to the ‘unsatisfactory character’255 and ‘unrealistic nature’256 of the concurrent causes theory, although acknowledging its ‘undoubted attraction’257 in providing a greater measure of protection for the victim, particularly in cases where the second tortfeasor is without means or has disappeared, leaving the unfortunate victim to shoulder the greater part of his or her loss. Lord Keith opined258 that, although it might be logically correct to regard the original tort and the supervening event as concurrent causes of incapacity, that did not necessarily provide the correct solution; the court in Baker v Willoughby had erred in approaching the problem solely from the point of view of causation. In Faulkner v Keffalinos,259 the third case in the trio, the plaintiff was injured through the negligent driving of the defendant and suffered a partial loss of earning capacity. Subsequently, and before the trial, his remaining earning capacity was [page 339] extinguished when he incurred further injury in another motor accident when a car he was driving ran into another vehicle. It is not clear from the reported facts whether the second accident was attributable to the fault of the plaintiff or the third party (or both). The decision is somewhat puzzling in that only one judge, Windeyer J, alluded to Baker v Willoughby and discussed at any length the possible effects of the supervening injury. The outcome of this appeal to the High Court was that the plaintiff’s damages were reduced on the basis that no account had been taken by the lower court of the contingencies

or vicissitudes of life generally,260 but, apart from the decision of Windeyer J, the discussion is singularly lacking in any attempt to come to terms with the special problems associated with successive pre-trial injuries. Windeyer J261 made the point that the impairment of a faculty, such as earning capacity, must be distinguished from damage to property, in that earning capacity has no value unless it is exercisable. Accordingly, in assessing damages for its destruction or reduction, an allowance must be made for the contingency of interruptions of a person’s working life by periods of unemployment, sickness or accident. This is all the more so where the contingency actually materialises before the date of the trial. Seen in this light, the effects of the second injury had to be taken into account in the assessment. Windeyer J did not disagree with Baker but merely distinguished it on its facts, regarding the supervening events in Faulkner, unlike those in Baker, as preventing a particular damage occurring as a result of the original tort, and so purporting to apply the distinction made by the court in Baker between supervening events which increase the original injury and those which have the opposite effect. As we have seen, the House of Lords subsequently criticised this approach as unworkable.262

9.22 The vicissitudes principle is based on the notion that even: … if no accident had happened, nevertheless many circumstances might have happened to prevent the plaintiff from earning his previous income … [and, even if these] chances of life cannot be accurately calculated … the judge must tell the jury to consider them in order that they may give a fair and reasonable compensation.263

This principle must be applied in conjunction with the rule that the court should not speculate when it knows the true situation. It should not ‘listen to conjecture on a matter which has become established fact nor guess when [it] can calculate’.264 It must, therefore, have regard to relevant events which have occurred before the trial.265 One problem in applying the principle, which emerges in the three cases considered above, has been to decide which ‘chances of life’ are encompassed by the idea of ‘vicissitudes’. Should all supervening events, provided only that they ‘do not uncommonly occur in the ordinary course of human life’266 be regarded as [page 340]

such, and, if so, is there any valid reason for excluding supervening torts from being regarded as a vicissitude? Some events are routinely recognised as vicissitudes. Illness,267 unemployment, death,268 even a widow’s remarriage,269 all fall into this category. And in Leschke v Jeffs & Faulkner270 a 10-year term of imprisonment was held to be a vicissitude which fell to be deducted from the balance of the plaintiff’s working life in computing damages for loss of earning capacity arising out of an earlier accident. Given that imprisonment is a decidedly uncommon occurrence in the ordinary course of life of the majority of the population, it seems odd that injury caused by a supervening tort might be regarded as too unusual an event to be a vicissitude. Yet the decision of the House of Lords in Baker v Willoughby271 has been rationalised on this basis.272 It is certainly the explanation advanced by the Court of Appeal in Jobling v Associated Dairies Ltd273 as well as by two of the Law Lords in the subsequent appeal from that decision.274 On the other hand, Lord Edmund-Davies and Lord Bridge275 declined to accept the view that the decision in Baker should be seen as authority for that proposition. Their judgments strongly suggest that a supervening disability caused by a second tort might well be regarded as a vicissitude. Ironically, this tort/nontort distinction was never raised directly by the House of Lords in Baker and, to the contrary, the Court of Appeal276 decision in that case went the other way. No doubt the motivation of the House of Lords in Baker was to ensure that that particular plaintiff would be compensated (the armed robber not being a party to the action). However, one should not lose sight of the fact that the object of damages in tort is to put the plaintiff as far as possible in the position which he or she would have been ‘but for’ the tort — no more, no less. It is for this reason that the court must take account of the vicissitudes. Moreover, the distinction between tortious and non-tortious vicissitudes cannot be sustained on logical grounds. [page 341]

Taking your victims as you find them 9.23 Application of the vicissitudes principle affects mainly the position of

the original tortfeasor.277 What of the position of the second tortfeasor? Here other rules come into operation. One of these is the notion that the tortfeasor must take the victim as he or she is at the time of the incident. This rule is by no means limited to successive injuries but it is convenient to discuss it here, particularly since one of the leading cases, Performance Cars Ltd v Abraham,278 did involve successive independent torts. The defendant in this case, the second tortfeasor, had negligently caused his own car to collide with the front of the plaintiff’s Rolls-Royce. Rectification of the ensuing damage to the latter vehicle necessitated a respraying not only of the front but also the rear of the vehicle at a cost of £75. The Rolls-Royce had previously been involved in another collision, on that occasion damaging the rear of the vehicle, but also necessitating the respraying of both ends. The plaintiff had already successfully sued the previous tortfeasor but that judgment remained unsatisfied at the time the present action was brought. Relying on the ‘vital fact’ that when the defendant hit the plaintiff’s vehicle the work of restoration had not yet been undertaken, Lord Evershed MR held that the defendant was not liable because the necessity for respraying already existed — it was not the result of his wrongdoing.279 He was entitled to take the damaged condition of the car into account, even if this meant that he would fortuitously benefit thereby. Conversely, it has always remained an unchallenged rule that the defendant cannot be allowed to plead that the plaintiff was earning more than the average victim, nor that the damaged goods were exceptionally valuable: damages are not restricted to the average loss of earnings or average value of goods in the circumstances, even supposing that such a sum was calculable. This rule unquestionably survives The Wagon Mound. It applies equally to compensation for property damage and for personal injury. It was also a major factor in the controversial decision in Baker v Willoughby.280 The court in that case took as its starting point the fact that, had the robbers been sued, they would have been entitled to take their victim as they found him.281 They would have been accountable only for the additional loss to the plaintiff by reason of his requiring an artificial limb instead of having a stiff leg. This in turn meant that, as from the date of the robbery, the plaintiff would have received less damages from the defendant who was in fact sued than he would otherwise have been entitled to receive. It was because of its stated determination to avoid this ‘injustice’ that the court felt compelled to ignore

the vicissitudes principle in its assessment of the damages payable by the first tortfeasor. This illustrates the strength of the rule that you must take your victims as you find them. [page 342]

9.24 In conclusion, it must be stressed again that causation and remoteness appertain to all torts: see further 27.15ff. The analysis of the concept of cause is common to all, and so are the rules about measuring items of damage, the ‘take the plaintiffs as you find them’ rule and the principles of multiple causation. We consider in turn the application of risk in the context of particular torts, but we may anticipate the general conclusion — that most torts require that the harm must be of that kind which the judges had in mind when they fashioned the tort. The role played by policy and judicial instincts as to fairness must never be overlooked when considering any problem of causation. _______________ 1.

Without this linkage between the act complained of and the damage the action will fail. In Petrunic v Barnes (1988) Aust Torts Reports 80-147 (Vic SC) a doctor’s failure to warn his patient of a very slight chance of tubal ligation failing to prevent pregnancy was held not to be causally connected to the ensuing pregnancy in the sense that, even had the warning been forthcoming, the patient would still have gone ahead with the operation; similarly Lilley v Alpine Resorts Commn (1998) Aust Torts Reports 81-475 (Vic CA).

2.

Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) ss 11, 12; Wrongs Act 1936 (SA) ss 34, 35; Civil Liability Act 2002 (Tas) ss 13, 14; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 ss 5C, 5D; Civil Law (Wrongs) Act 2002 (ACT) ss 45, 46.

3.

Expert evidence may be adduced to assist the court: Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [78] per Spigelman CJ, [200] per Stein JA, but see the note of caution expressed by Spigelman CJ at [142].

4.

As stated by McHugh J in Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [23] ‘causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty’.

5.

Wakelin v London and South Western Ry Co (1886) 12 App Cas 41 (HL); Metropolitan Ry Co v Jackson (1877) 3 App Cas 193 (HL); Sayers v Perrin [1966] Qd R 74.

6.

Davis v Bunn (1936) 56 CLR 246 at 255 per Starke J; Mitchell v Taylor (1992) 108 FLR 265 at 269 per Higgins J.

7.

Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 (CA); Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104; Griffin v Coles Myer Pty Ltd [1992] 2 Qd R 478; Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431; Mallows v Woolworths (Vic) Ltd (SC(Tas), BC9803310, 17 July

1998, unreported); Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419. 8.

This onus is not discharged merely by establishing that a particular matter cannot be excluded as a cause of the injury: Sydney CC v Furner (1991) 7 NSWCCR 210 at 214 per Hope AJA; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 339.

9.

A contribution will be material if it is shown on the evidence not to be negligible: Western Australia v Watson [1990] WAR 248 (FC). As to whether the law equates materially increasing the risk of injury with materially contributing to the injury, see discussion in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 312, 316, 337; see also Gunston, ‘Turbulent Causal Waters: The High Court, Causation and Medical Negligence’ (2001) 9 Tort L Rev 53 at 64–5. As to its history and the different ways in which this term has come to be used in the context of causation, see Strong v Woolworths Ltd (2012) 285 ALR 420 at [22]ff per French CJ, Gummow, Crennan and Bell JJ.

10.

Power v Snowy Mountains Hydro Electric Authority [1957] SR (NSW) 9 at 15. As to the situation where the facts are meagre, see note by JGS in (1985) 59 ALJ 108.

11.

State of Victoria v Bryar [1970] ALR 809 at 811 per Barwick CJ; Miller v Royal Derwent Hospital Board of Management (1992) Aust Torts Reports 81-175 at 61,500 per Zeeman J (Tas SC).

12.

Jones v Great Western Ry Co (1930) 47 TLR 39 at 45 per Lord MacMillan; Smith v Auckland Hospital Board [1965] NZLR 191 at 220; Law v Visser [1961] Qd R 46 at 69.

13.

As to the limitation of this approach, see Strong v Woolworths Ltd (2012) 285 ALR 420 at [69] per Heydon J.

14.

Divergence of opinion between experts does no more than give rise to a conflict of evidence which the jury must resolve; it is not ground for withdrawing the case from them: Commr for Road Transport v Adamcik (1961) 78 WN (NSW) 483 at 487.

15.

Gold Coast City Council v Stocks [2002] QDC 304 at [18].

16.

X v Pal (1991) 23 NSWLR 26 (CA) at 31 per Mahoney J. The court is still required to make its own assessment of the evidence: Fox v Percy (2003) 214 CLR 118 at [25]. It also needs to be cautious about drawing from expert medical evidence an inference that the legal test of causation is satisfied: New South Wales v Burton [2006] NSWCA 12 at [88]–[91]; State of NSW v Gemma Fahry (2006) Aust Torts Reports 81-865, [100]. See generally McDonald v Girkaid Pty Ltd [2004] NSWCA 297 at [101ff] and cases cited therein.

17.

Unreported judgment of the High Court in Bradshaw v McEwans Pty Ltd (1951), cited by the High Court in Luxton v Vines (1952) 85 CLR 352 at 358. It is not therefore sufficient to show that the harm might have been caused by the defendant’s conduct: X v Pal (1991) 23 NSWLR 26 (CA) at 48 per Clarke JA; Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 355 (CA) at 11.

18.

See per Lord Loreburn in Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 678; cited with approval in Luxton v Vines (1952) 85 CLR 352 at 358; Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at 305; see also TC v New South Wales [2000] NSWSC 292 at [50]; Tabet v Gett (2010) 240 CLR 537; 265 ALR 227 at [111] per Kiefel J. It is necessary to show only that the competing inference is less likely, not that it is inherently improbable: Lithgow CC v Jackson (2010) 244 CLR 352; 281 ALR 223 at [94] per Crennan J.

19.

Gaetani v Trustees of the Christian Brothers (1988) Aust Torts Reports 80-156 (Tas SC). Further examples of the inability to establish causation are provided by Phipson Nominees Pty Ltd v French (1988) Aust Torts Reports 80-196; Maindonald v Marlborough Aero Club (1935) 54

NZLR 371; Snorkel Elevating Work Platform Pty Ltd v Borren Metal Forming Ltd [2010] ACTCA 23. 20.

Strong v Woolworths Ltd (2012) 285 ALR 420 at [34] per French CJ, Gummow, Crennan and Bell J.

21.

(2003) 200 ALR 1 (HC) at [36] per Gleeson CJ and Heydon J, at [145] per Callinan J; CGU Insurance Ltd v Lawless [2008] VSCA 38 at [4].

22.

For example, per Kirby J in Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [93], point 1; Strong v Woolworths Ltd (2012) 285 ALR 420 at [59] per Heydon J.

23.

Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420–1; 107 ALR 617 at 625, and cases cited therein; Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [27], [93]; Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [31], [76] and [127]; Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [87].

24.

[1972] 3 All ER 1008 at 1012; [1973] 1 WLR 1 at 6 (HL); cf Kay v Ayrshire and Arran Health Board [1987] 2 All ER 417 (HL), where the McGhee principle was held inapplicable to a situation where a child became deaf after contracting meningitis for which an overdose of penicillin was negligently prescribed, because it could not be proved that the overdose was capable of leading to deafness, whereas meningitis was known to be a cause of deafness.

25.

[1987] QB 730; [1986] 3 All ER 801 (CA).

26.

At 771–2; 829 respectively. The McGhee principle as expounded by Mustill LJ was relied on to bridge the evidence gap in Fitzgerald v Lane [1987] QB 781; 2 All ER 455 (CA). Similarly, Bryce v Swan Hunter Group plc [1988] 1 All ER 659 at 671 per Phillips J.

27.

Wilsher v Essex Area Health Authority [1988] AC 1074; 1 All ER 871 (HL).

28.

Ibid at 1090; 881–2.

29.

Ibid.

30.

[2003] 1 AC 32; [2002] 3 All ER 305. The plaintiff was exposed to asbestos in the workplace by several different employers.

31.

Ibid at [21], [22] per Lord Bingham, at [154] per Lord Rodger; but cf at [109] per Lord Hutton. The decision could not be explained away as merely a robust approach to the facts: see [22], [70], [144].

32.

Chester v Afshar [2004] UKHL 41 at [20], [23] per Lord Steyn; [81], [87] per Lord Hope and [101] per Lord Walker; Gregg v Scott [2005] 2 AC 176 at [31] per Lord Nicholls; at [192] per Baroness Hale.

33.

[2006] 2 AC 572; 3 All ER 785. The facts in Barker differed from those in Fairchild in that some of the workplace exposure occurred during a period of self-employment. As to whether the employers’ liability insurers are liable to indemnity employers in mesothelioma cases, see Durham v BAI (Run Off) Ltd, Re Employers’ Liability Policy ‘Trigger’ Litigation [2012] 1 WLR 867; 3 All ER 1161.

34.

Compensation Act 2006 (UK), s 3.

35.

[2011] 2 AC 229; 2 All ER 857. However, the court rejected as inappropriate the ‘more than doubles the risk’ approach to causation: at [90], [107] per Lord Phillips; [169], [170], [173] per Baroness Hale.

36.

[2011] 2 AC 229; 2 All ER 857 at [186].

37.

(1998) 195 CLR 232; 156 ALR 517. Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 may be distinguished on the basis that there the plaintiff failed to convince the High Court that she would not have had the operation even if she had been warned of the attendant risks.

38.

Ibid at [10], citing Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 at 649.

39.

(1998) 195 CLR 232; 156 ALR 517 at [68].

40.

Ibid at [93], point 8.

41.

Ibid at [27]. McHugh J’s dissent should therefore not be taken as expressing a difference of principle at least on this issue.

42.

(1999) 197 CLR 269; 162 ALR 540 at [31], [127] per Gaudron and Callinan JJ, respectively. See useful note by Mulheron and Gordon, ‘Juries, Medical Negligence and Causation in the High Court of Australia’ (2000) 8 Tort L Rev 19.

43.

(1999) 197 CLR 269; 162 ALR 540 at [1]–[5], [16]–[17], [46]–[48], [80], [124].

44.

Ibid at [31].

45.

For example, Zaltron v Raptis [2001] SASC 209; Strempel v Wood [2005] WASCA 163; City of Stirling v Tremeer [2006] WASCA 73; Moss v Amaca Pty Ltd [2006] WASC 311 at [3105]; Elbourne v Gibbs [2006] NSWCA 127—Basten JA noting at [73] that they ‘should be treated as the correct statement of the law’. But cf his statement in North Sydney Council v Binks [2007] NSWCA 245 at [93], citing Ipp JA in Elbourne v Gibbs [2006] NSWCA 127 that there are limits on how far an assumption of causation can be pressed without a formal reversal of the onus of proof. It does not necessarily follow, as suggested by Basten JA in Gordon v Ross [2006] NSCWA 157 at [33], that a material decrease in the risk is a sufficient test of the effectiveness of the precaution.

46.

Flounders v Millar [2007] NSWCA 238; cf Amaca Pty Ltd v Hannell [2007] WASCA 158 at [395].

47.

TC by his tutor Sabatino v New South Wales [2001] NSWCA 380 at [59]; Rufo v Hosking [2004] NSWCA 391 at [1]; [418]–[419]; Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253; Sydney South West Area Health Services v Stamoulis [2009] NSWCA 153 at [30] per Beazley JA. The Judge also warned of the danger in applying evidence, including epidemiological or statistical evidence, that tends to quantify possibilities mathematically: at [34], [35].

48.

(2000) 49 NSWLR 262 at [119]; Van den Heuvel v Tucker (2003) 85 SASR 512 at [98].

49.

[2002] 2 Qd R 119. Seen in this light this decision is not incompatible with the House of Lords in Wilsher.

50.

[2011] NSWCA 230 at [31], [52] per Allsop P.

51.

Ibid at [37] per Allsop P.

52.

(2010) 240 CLR 111; 263 ALR 576 at [12]; noted by Stapleton ‘Factual Causation and Asbestos Cancers’ (2010) 126 LQR 351.

53.

Rendering it doubtful that the Fairchild principles applied: Hamer, ‘Before the High Court: Mind the “Evidential Gap”: Causation and Proof in Amaca Pty v Ellis’ (2009) 31 Syd L Rev 465 at 483.

54.

(2011) 283 ALR 461.

55.

Ibid at [51] per French CJ.

56.

Ibid at [52]. That is to say, the evidence pointed not only to an increased risk of injury, but to a

causal connection to the development and continuation of the disease itself: at [53], [82]. 57.

As it clearly is in contract: Chaplin v Hicks [1911] 2 KB 786 (CA); see further Greig and Davis, The Law of Contract, 1987, pp 1417–23; Cownie, ‘Damages for Loss of a Chance in Tort?’ (1989) 5 Professional Negligence 194.

58.

Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [93], point 9.

59.

Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [28]–[36]. Gaudron J’s in principle support was limited to situations ‘where no other loss is involved’, different considerations being applicable where the risk has eventuated and physical injury has occurred.

60.

Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [128]–[130].

61.

A less favourable view was adopted by Hayne J: Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [135]ff.

62.

(2010) 240 CLR 537; 265 ALR 227.

63.

Ibid at [68], [69] per Hayne and Bell JJ; similarly at [59] per Gummow ACJ and at [142], [143] per Kiefel J, citing with approval Laferriere v Lawson [1991] 1 SCR 541 at 591.

64.

Ibid at [102] per Crennan J; at [151] per Kiefel J distinguishing Matsuyama v Birnbaum (2008) 890 NE 2d 819 at 825, fn 13. See, too, per Gummow ACJ at [21]ff.

65.

[2005] 2 AC 176; 4 All ER 812 at [90]. See also at [226] per Baroness Hale; [170]–[171] per Lord Phillips. The possibility was, however, left open in Hotson v East Berkshire Area Health Authority [1987] AC 750; 2 All ER 909.

66.

Tabet v Gett (2010) 240 CLR 537; 265 ALR 227 at [148] per Kiefel J.

67.

There is an excellent analysis of the general principles of causation in Hart and Honore, Causation in the Law, 2nd ed, 1985. The task of the law is to ‘extract one or more circumstances out of the whole complex of antecedent conditions of an event as its cause’: per Windeyer J in Cavanagh v Commonwealth (1960) 103 CLR 547 at 584.

68.

Smith v Auckland Hospital Board [1965] NZLR 191 at 221 per Gresson J; Chapman v Tangmere Airfield Nurseries Ltd [1998] EWCA Civ 1730; Sivasubramaniam v Yarrall [2005] 3 NZLR 268 at [55]ff. Similarly, the Civil Liability Act 2002 (NSW) s 5D(1) merely requires the negligence to be ‘a necessary condition’; given this, it may not be accurate to regard this provision (as does Simpson J in Cox v New South Wales [2007] NSWSC 471 at [117], [1540]) as no more than a statutory formulation of the ‘but for’ test.

69.

In Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1968] 1 All ER 1068, the defendants negligently denied admission to a person who subsequently died. They were held not liable on the basis that the death was inevitable. But what if treatment by the hospital would have delayed the death?

70.

And see example provided by Hayne J in Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [116].

71.

Exemplified by Wallace v Kam [2012] NSWCA 82, where the issue was whether a medical practitioner was negligent where he failed to warn (1) of a risk that did not eventuate but might, had an appropriate warning been given, have led the plaintiff not to have the operation, and (2) of a risk that in fact materialised, but where a warning would not have led the plaintiff to decline an operation (special leave to appeal to the High Court was granted on 5 October 2012: [2012] HCA Trans 251; but the appeal had not been heard at the time of going to press).

72.

Smith v Auckland Hospital Board [1965] NZLR 191 at 199 per Gresson J.

73.

Hoffmueller v Commonwealth (1981) 54 FLR 48 at 52 per Glass JA.

74.

Sayers v Perrin (No 3) [1966] Qd R 89 at 94 per Sheehy ACJ.

75.

A view now endorsed by the High Court: see, eg, March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 508; 99 ALR 423 at 424 per Mason CJ. See also per Deane J at 522–3; 435–6 and per Toohey J at 524; 436 respectively. Cf McHugh J’s greater readiness to endorse the ‘but for’ test as the touchstone of legal causation (at 534, 443), a view he no longer espoused in Bennett v Minister of Community Welfare (1992) 176 CLR 408; 107 ALR 617 or in Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [24].

76.

In Barnes v Hay (1988) 12 NSWLR 337 at 353 Mahoney J regarded the determination of a cause as involving a normative decision as to whether, for the purposes of the case, the precedent act for which the defendant is responsible should be seen as causal of the plaintiff’s loss. That evaluation, he said, is made not by a ‘test’ or ‘guide’ such as the ‘but for’ test, but by a functional evaluation of the relationship and the purposes and policy of the relevant part of the law.

77.

Chester v Afshar [2005] 1 AC 134; [2004] 4 All ER 587 at [8] per Lord Bingham.

78.

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 517; 99 ALR 423 at 431; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 413; 107 ALR 617 at 619; Medlin v State Government Insurance Commn (1995) 182 CLR 1 at 6; 127 ALR 180 at 183.

79.

Applied in Beale v Meehan [2000] NSWSC 282.

80.

See Reeves v Metropolitan Police Commr [2000] 1 AC 360 at 392–3; [1999] 3 All ER 897 at 924–5 per Lord Hobhouse.

81.

Benson v Kwong Chong (1932) NZPCC 456 at 458, 466; Jamieson v Green [1957] NZLR 1154 at 1157; JM Heywood & Co Ltd v Attorney-General [1956] NZLR 668; Godfrey v Gilbert [1936] NZLR 699 at 715; Smith v Auckland Hospital Board [1965] NZLR 191 at 220.

82.

Davis v Bunn (1936) 56 CLR 246 at 261 per Dixon J.

83.

For example, Richardson v Mt Druitt Workers Club [2011] NSWSC 31 at [21] per Adams J.

84.

(1954) 91 CLR 268 at 274.

85.

So, eg, in Tabet v Mansour [2007] NSWSC 36 at [221] and in New South Wales v Burton [2006] NSWCA 12 at [14], the insistence that a cause be ‘material’ led to the further requirement that it significantly increase the risk. Cf per Hunt AJA at [91] on the relationship between a ‘material’ contribution and ‘exacerbation’.

86.

Ibid at 277–8; see also McCarthy v Wellington City [1966] NZLR 481 at 495 per Tomkins J; March v Stramare (1989) 9 MVR 395 at 415–16 per Bollen J (SASC); Morton v State of Tasmania [2006] TASSC 62 at [48] per Crawford J. Cf similar doubts about the usefulness of terms such as ‘pre-eminent’ or ‘subsidiary’: Medlin v State Government Insurance Commn (1995) 182 CLR 1 at 7; 127 ALR 180 at 183.

87.

Fitzgerald v Penn (1954) 91 CLR 268 at 274; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ; 522–3 per Deane J; 524 per Toohey J; 99 ALR 423 at 429, 435, 436 respectively; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412–13; 418–19; 428; 107 ALR 617 at 619; 624; 631; Medlin v State Government Insurance Commn (1995) 182 CLR 1 at 6; 127 ALR 180 at 183 per Deane J; Travel Compensation Fund v Tambree (2005) 224 CLR 627; 222 ALR 263, [56] (Kirby J), [80] (Callinan J); Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [55] per French CJ, Gummow, Hayne, Heydon and Crennan JJ. See also Miller v Royal Derwent Hospital Board of Management (1992) Aust Torts Reports 81-175 (Tas SC); Curmi v McLennan [1994] 1 VR 513 (App Div); Northern

Territory of Australia v Deutscher Klub (Darwin) Inc (1994) Aust Torts Reports 81-275 (NTCA). 88.

Stapley v Gypsum Mines Ltd [1953] AC 633 at 681, 687; 2 All ER 478 at 485–6, 489–90 per Lords Reid and Asquith, respectively; Admiralty Commrs v SS Volute [1922] 1 AC 129 at 144–5 per Viscount Birkenhead LC; McGhee v National Coal Board [1972] 3 All ER 1008 at 1011, 1017; [1973] 1 WLR 1 at 5, 11.

89.

In NSW, pursuant to the Civil Liability Act 2002 s 5D(1), the ‘but for’ test is now to be seen as a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2): Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [55]; Zanner v Zanner (2010) 79 NSWLR 702 (CA) at [64] per Tobias JA, with whom Young JA concurred; Varga v Galea [2011] NSWCA 76 at [9]; Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [132]. In Strong v Woolworths Ltd (2012) 285 ALR 420 at [20] the High Court noted that ‘a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual association within s 5D(1)(a)’.

90.

But see caveats by Callinan J in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [149] that ‘assumptions about dictates of common sense can often be dangerous’ as they imply that ‘a common view should, and would, be taken of particular events by all or most sensible people’; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 at [96–97]; also per Lord Hoffmann in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; [2002] 3 All ER 305 at [53]—the appeal to common sense should not be used to avoid giving reasons; and see per Lord Hope in Chester v Afshar [2004] UKHL 41 at [82–4].

91.

This test applies equally to workers’ compensation cases: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463; Cole v P&O Ports Ltd [2002] WASCA 157; Zinc Corporation v Scarce (1995) 12 NSWCCR 566 (CA) at 569.

92.

(1991) 171 CLR 506 at 509; 99 ALR 423 at 425. Cited with approval in Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [23] per McHugh J, at [62] per Gummow J. Cf the statement to similar effect by Gaudron J at [7] regarding the framework within which the question of causation operates, approved by Gummow J in Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [85].

93.

(1998) 195 CLR 232; 156 ALR 517 at [93], point 2 per Kirby, at [148] per Hayne J.

94.

As stated in Marrickville Municipal Council v Moustafa (2001) 117 LGERA 291 at [54] (NSW CA), proving causation involves an evaluative element over and above a factual inquiry.

95.

Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253 at [28], per Basten JA.

96.

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 at [55] per McHugh J; Travel Compensation Fund v Tambree (2005) 224 CLR 627; 222 ALR 263, [28], [46], [57ff], [80]. As to whether such considerations apply in ‘ordinary motor accident cases’ see Flounders v Millar [2007] NSWCA 238 at [38], per Ipp JA; Tabet v Gett (2010) 240 CLR 537; 265 ALR 227 at [112] per Kiefel J; Strong v Woolworths Ltd (2012) 285 ALR 420 at [18] per French CJ, Gummow, Crennan and Bell JJ.

97.

(2005) 224 CLR 627; 222 ALR 263.

98.

Ibid at [47], [48] per Gummow and Hayne JJ, citing Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [49].

99.

Ibid at [28]–[29] per Gleeson CJ, at [77] per Callinan J.

100. Ibid at [65].

101. Various expressions are synonymous with factual causation. These are causation in fact, actual, scientific, philosophic causation, the necessary or sufficient conditions of an effect and causation sine qua non. See Fraser and Howarth, ‘More Concern for Cause’ (1984) Legal Studies 131. 102. See Chapman v Hearse (1961) 106 CLR 112 at 122; [1962] ALR 379 at 383 (there equating the test of reasonable foreseeability with remoteness). 103. A finding of remoteness is not one of law but of fact: Rowe v McCartney [1976] 2 NSWLR 72 at 78; Richards v State of Victoria [1969] VR 136 at 146 and authorities cited therein. 104. Commonwealth v Butler (1958) 102 CLR 465 at 476–7 per Taylor J. 105. Cotic v Gray (1981) 17 CCLT 138 (Ont CA). 106. Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 399 per Windeyer J. 107. But not limited to this; it is also an important determinant in the duty of care: see, eg, Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 399. 108. Smith v London and South Western Ry (1870) LR 6 CP 14. 109. [1921] 3 KB 560 (CA). 110. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388; 1 All ER 404. The most influential of the many articles on this topic are by Goodhart: see especially ‘Liability and Compensation’ (1960) 76 LQR 567. Other articles include Payne, ‘Foresight and Remoteness of Damage in Negligence’ (1962) 25 MLR 1. 111. [1961] AC 388 at 424; 1 All ER 404 at 414. 112. Given this flexibility there would appear to be no pressing need to take up the suggestion of McHugh J in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 535; 99 ALR 423 at 444 to further rationalise the rules of remoteness so as to take into account other policy factors apart from foreseeability. Indeed, it may be argued that any attempt to ‘pin down’ a formula may lead to a more rigid application of these rules. 113. Per Windeyer J in Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 397. 114. Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 856 per Herron CJ. 115. Hughes v Lord Advocate [1963] AC 837; 1 All ER 705; Donaghey v Boulton & Paul Ltd [1968] AC 1 at 26 per Lord Reid; Stewart v West African Terminals Ltd [1964] 2 Lloyd’s Rep 371 at 375 per Lord Denning MR; Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 at 1009 per Eveleigh J; Tremain v Pike [1969] 3 All ER 1303 at 1308 per Payne J; Robb v Everard [1999] EWCA Civ 1022 at [28]. 116. The Wagon Mound (No 1) [1961] AC 388 at 426; 1 All ER 404 at 415; see also The Wagon Mound (No 2) [1967] 1 AC 617 at 636 (PC); Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402, 412; Jaensch v Coffey (1984) 155 CLR 549 at 552–3, 561, 563; Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 403. Grief is not regarded as a kind, type or class of shock: see, eg, Miller v Royal Derwent Hospital Board of Management (1992) Aust Torts Reports 81175 at 61,497 per Zeeman J (Tas SC). 117. Chapman v Hearse (1961) 106 CLR 112 at 120–1; Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390 per Barwick CJ. While it is not necessary to foresee the precise nature of the consequences, they must be of the same general character: Kavanagh v Akhtar (1998) 45 NSWLR 588 at 602, citing Hird v Gibson [1974] Qd R 14. 118. Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 at 160 per Richmond J (CA).

119. Chapman v Hearse (1961) 106 CLR 112; in Lisle v Brice [2002] 2 Qd R 168, death by suicide brought on by depression was held to be a foreseeable consequence of a motor accident. Similarly, in Corr v IBC Vehicles Ltd [2008] 1 AC 884; 2 All ER 943, suicide as a not uncommon sequela of severe depression held to be of the same kind or class. 120. [1978] 2 NZLR 397 (CA). And see Jambrovic v ACT Health Authority (1992) 108 FLR 8 (injury by scalding more severe than anticipated due to plaintiff fainting and overturning urn). 121. (1970) 125 CLR 383 at 390 per Barwick CJ. 122. Hoffmueller v Commonwealth (1981) 54 FLR 48 at 53 (NSWSC); Rowe v McCartney [1976] 2 NSWLR 72 at 79. 123. See generally Greig and Davis, The Law of Contract, 1987, pp 1372–88. 124. Once the damage is foreseeable, the fact that it arises or is continued by reason of an unusual complex of events will not avail the defendant: Malcolm v Broadhurst [1970] 3 All ER 508 at 511. 125. Taupo Borough Council v Birnie [1978] 2 NZLR 397 at 410 per Cooke J, citing Lord Reid in C Czarnikow Ltd v Koufos [1969] 1 AC 350 at 385–6; [1967] 3 All ER 686 at 691–2; Jaensch v Coffey (1984) 155 CLR 549 at 562–3; 54 ALR 417 at 427. 126. Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 at 160 per Richmond J, discussing the judgment in The Wagon Mound (No 2) [1967] 1 AC 617 at 641; [1966] 2 All ER 709 at 717 (PC). 127. Jaensch v Coffey (1984) 155 CLR 549 at 561–3; 54 ALR 417 at 427 and authorities cited therein. 128. Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 642; Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159. 129. [1969] 3 All ER 1303. 130. Ibid at 1308. 131. [1967]1 All ER 267. 132. Also Havenaar v Havenaar [1982] 1 NSWLR 626 (CA)—pancreatitis held to be a foreseeable type of injury from road accident. 133. [1974] Qd R 14 at 21 per Hart J. 134. The High Court in Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 finally settled the matter in favour of recovery, stipulating only that ‘nervous shock’ must itself be foreseeable. See generally 7.41ff. 135. Jolley v Sutton London Borough Council [2000] 1 WLR 1082 at 1091; [2000] 3 All ER 409 at 418 per Lord Hoffmann. He added that the description of the injury depends on the nature of the foreseeable risk. 136. Per Lord Reid in Hughes v Lord Advocate [1963] AC 837 at 847; 1 All ER 705 at 708 discussing Glasgow Corporation v Muir [1943] AC 448; 2 All ER 44. 137. [1963] AC 837; 1 All ER 705. 138. Ibid at 858, 715 respectively per Lord Pearce. 139. Ibid at 858, 715–16 respectively. 140. Ibid at 856, 714 respectively. Yet insurance law commonly makes this distinction. 141. [1964] 1 QB 518; 1 All ER 98 (CA).

142. [2000] 1 WLR 1082 at 1090; 3 All ER 409 at 417 per Lord Steyn. 143. Chapman v Hearse (1961) 106 CLR 112 at 115. 144. McCarthy v Wellington City [1966] NZLR 481 at 511. 145. Hughes v Lord Advocate [1963] AC 837 at 853; 1 All ER 705 at 712 per Lord Morris; applied in Sianis v Barlow (1987) 48 SASR 471 at 482 per Matheson J. 146. For example, Dwyer v Southern [1961] SR (NSW) 896. 147. Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159 at 169. 148. Hayward v Georges Ltd [1966] VR 202. 149. Wells v Sainsbury [1962] NZLR 552. 150. Draper v Hodder [1972] 2 QB 556; 2 All ER 210 (CA). 151. Bidwell v Briant (1956) The Times, 9 May. 152. Love v Port of London Authority [1959] 2 Lloyd’s Rep 541; or exacerbation of pre-existing nervous disturbance: Malcolm v Broadhurst [1970] 3 All ER 508. 153. White v Chief Constable of South Yorkshire [1999] 2 AC 455 at 470; 1 All ER 1 at 11 per Lord Goff, citing Bourhill v Young [1943] AC 92 at 109–10. 154. [1962] 2 QB 405; [1961] 3 All ER 1159. 155. This received the specific endorsement of the High Court in Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 406 per Windeyer J; further, Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 858 (dormant tetanus spore activated by accident); Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 406. 156. [1973] 1 NZLR 152 at 160 per Richmond J. 157. A leading exponent of this view is Williams, ‘The Risk Principle’ (1961) 77 LQR 179. 158. Goodhart, ‘Liability and Compensation’ (1960) 76 LQR 567, supports this on the ground that negligence does not depend on exact foresight, which is impossible. 159. Negretto v Sayers [1963] SASR 313 at 318–19. (Plaintiff’s second mental breakdown could not, however, be attributed to motor accident but to the birth of her child.) 160. Sayers v Perrin (No 3) [1966] Qd R 89 (poliomyelitis caused by electric shock). But what if the rescuer, rather than the victim, suffers from a pre-existing condition? In Eaton v Pitman (1991) 55 SASR 386, the Full Court allowed a nurse to recover damages for aggravation to a preexisting condition of spondylolisthesis brought on by assisting in the rescue of an injured cyclist, because in the circumstances her presence at the scene of the accident was held to be foreseeable. 161. Sawicki v O’Sullivan [1960] Qd R 547 (anti-tetanus serum myopathy caused by reaction to antitetanus serum); Robinson v Post Office [1974] 2 All ER 737 (CA) (encephalitis caused by antitetanus serum used to treat laceration). 162. Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 247; Hoffmueller v Commonwealth (1981) 54 FLR 48; Wilson v Peisley (1975) 7 ALR 571. Cf Simmons v British Steel Plc (Scotland) [2004] UKHL 20: no liability where physical condition was triggered by plaintiff’s anger at employer’s treatment of him after the accident. 163. Lisle v Brice [2002] 2 Qd R 168 at [41]. 164. Hole v Hocking [1962] SASR 128 (haemorrhage hastened by accident); Zumeris v Testa [1972] VR 839 (accident accelerated pre-accident disease causing progressive degeneration); Von

Hartmann v Kirk [1961] VR 544 extends this rule to accelerated death. 165. Pastras v Commonwealth [1967] VR 161 (aggravation of a pre-existing congenital back condition); Watts v Rake (1960) 108 CLR 158; State Government Insurance Commn v Oakley (1990) Aust Torts Reports 81-003. 166. (2002) Aust Torts Reports 81-652 at [33]. 167. (1924) 41 TLR 21—on the generally held view that it matters not that the case was in contract, not tort. 168. The spark which followed the careless dropping of the plank in Re Polemis was thus not such a contingency. 169. Morrison SS Co Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265 at 295; [1946] 2 All ER 696 at 709 (HL). 170. Haber v Walker [1963] VR 339 at 349 per Lowe J. The High Court in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 528; 59 ALR 722 at 725 held that a novus actus interveniens marks the boundary of damage beyond which the tortfeasor will not be liable. 171. See Chapman v Hearse (1961) 106 CLR 112 at 122. 172. Whether by the plaintiff or by a third party. In Bennett v Minister of Community Welfare (1992) 176 CLR 408; 107 ALR 617 the plaintiff’s act of seeking independent legal advice which he followed was held not to have severed the chain of causation between the defendant’s initial negligence (failing to obtain legal advice for plaintiff) and its consequences in the harm to the plaintiff occasioned by his loss of the right to litigate; similarly, Medlin v State Government Insurance Commn (1995) 182 CLR 1; 127 ALR 180; see also Cook v ACT Racing Club Inc [2001] ACTSC 106: fall from a horse following a myocardial infarction not a novus actus interveniens but, rather, a consequence; but cf Postnet Pty Ltd v Wood & Brown [2002] ACTCA 5 at [14] where the plaintiff’s subsequent action was regarded as unreasonable. 173. See Hart and Honore, Causation in the Law, 2nd ed, 1985, pp 103–17, 123–34, 151–2, 157–9. 174. See Commr of Railways (Western Australia) v Stewart (1936) 56 CLR 520 at 536–7; Re Armstrong and State Rivers and Water Supply Commn [1952] VLR 187. 175. For example, Hart and Honore, fn 173 above. 176. For example, Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 860. Cf State Rail Authority of NSW v Chu [2008] NSWCA 14. 177. Havenaar v Havenaar [1982] 1 NSWLR 626 at 627 per Hutley JA. 178. This cautionary formulation was originally adopted by the High Court in Chapman v Hearse (1961) 106 CLR 112 at 122 and since then has been frequently cited by the courts. See, eg, Samuels JA in Rowe v McCartney [1976] 2 NSWLR 72 at 88; Hutley JA in Havenaar v Havenaar [1982] 1 NSWLR 626 at 627; Lowe and Smith JJ in Haber v Walker [1963] VR 339 at 352–3 and 355 respectively. 179. [1943] P 32 at 37, 39. Similar reasoning was applied in State of Victoria v Horvath [2002] VSCA 177 at [71], where the later event (deliberate use of force by police in conducting a raid was held to have completely overtaken any fault in its planning and supervision). 180. (1773) 2 Wm Bl 892. The decision of Keeffe v McLean-Carr (1993) Aust Torts Reports 81-224 (SASC) is justifiable on this basis (garbage collector jumped into truck to avoid savage dog and had his foot crushed by compactor mechanism; his voluntary action held not to be a novus actus interveniens).

181. (1889) 15 PD 15. 182. (1985) 157 CLR 424 at 467; 60 ALR 1 at 33 per Mason J. 183. (1988) 12 NSWLR 293 at 311 per Kirby P, at 334 per McHugh JA. 184. [1998] 2 All ER 381 at 389 per Buxton LJ; supported on appeal in [2000] 1 AC 360 at 374–5; [1999] 3 All ER 897 at 908 per Lord Jauncey, at 381; 914 per Lord Hope. 185. (2005) 224 CLR 627; 222 ALR 263, [27], [34], [40], [74]. 186. Haynes v Harwood [1935] 1 KB 146; [1934] All ER Rep 103 (CA). The court did, course, first decide that the careless defendant owed a duty of care to this would-be rescuer: Baker v TE Hopkins & Son Ltd [1959] 3 All ER 225 (CA). See 7.25ff. 187. D’Urso v Sanson [1939] 4 All ER 26. 188. Hirst v Nominal Defendant [2005] QCA 65. The court declined to regard the continued prosecution of the high-speed pursuit as a novus actus interveniens but nonetheless significantly reduced the damages owing on account of the police officer’s contributory negligence. 189. [1963] VR 339. Similarly, Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807 and Cavanagh v London Transport Executive (1956) The Times, 23 October. 190. [1963] VR 339 at 351. In Corr v IBC Vehicles Ltd [2008] 1 AC 884; 2 All ER 943, although the plaintiff was not insane, he suffered severe depression as a result of the physical injury for which the defendants were liable; accordingly, his subsequent suicide did not break the chain of causation. 191. (1961) 106 CLR 112; [1962] ALR 379. 192. These principles have also been applied in so-called ‘self-preservation’ cases where victims of crime, in seeking to escape violence, take extreme action and, in so doing, suffer injury or death: R v Lam [2005] VSC 296 and cases cited therein. 193. Pyne v Wilkenfield (1981) 26 SASR 441. And Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006. Similarly, the decision of the plaintiff in Medlin v State Government Insurance Commn (1995) 182 CLR 1; 127 ALR 180 to retire prematurely, although not inevitable or even probable, was not an abnormal response, given the deterioration to his health following the accident. 194. Watts v Rake (1960) 108 CLR 158 at 163 per Menzies J. 195. [1969] 3 All ER 1621 (HL); cf Jacques v Matthews [1961] SASR 205; Philmac Pty Ltd v Williams (1981) 48 SAIR (Pt 2) 451. As to whether the plaintiff was acting unreasonably in refusing an abortion when she conceived after an operation to sterilise her failed due to the negligence of the surgeon, see Emeh v Kensington, Chelsea & Westminster Area Health Authority [1985] QB 1012; [1984] 3 All ER 1044. This decision highlights the difficulties in deciding whether conduct is unreasonable, especially where it involves moral issues. 196. As to whether an accident victim who by her own choice accepts an injection of heroin from a drug pusher in order to relieve her pain, and who thereafter becomes addicted, has thereby broken the chain of causation, see Yates v Jones (1990) Aust Torts Reports 81-009 (NSWCA). 197. The tendency in motor vehicle accident cases is to regard the plaintiff’s negligent driving as contributory negligence rather than as unreasonable: see, eg, Shire of Corrigin v Hunter Holdings Pty Ltd [2007] WASCA 31. 198. Kavanagh v Akhtar (1998) 45 NSWLR 558 at 601. 199. Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404 at [43], [45]. The court rejected the

notion that the conduct in question should be reckless: at [19], [43]. 200. [2009] 1 AC 1339; 4 All ER 81 at [40], [69], [81], [99]–[101], overruling the decision of the Court of Appeal in [2008] EWCA Civ 713. 201. (1991) 25 NSWLR 500 at 514–15. 202. Distinguishing Wiegold and Gray from, eg, Corr v IBC Vehicles Ltd [2008] 1 AC 884; 2 All ER 943, where the plaintiff’s subsequent act, in that case suicide, was not a criminal act. 203. Cameron v Nottingham Insurance Co Ltd [1958] SASR 174. 204. See Encev v Encev (SC(Vic), BC 9706275, unreported) at 3133. And see generally Luntz, Assessment of Damages, 4th ed, 2002, [2.7.6]. 205. (1985) 156 CLR 522 at 529–30; 59 ALR 722 at 726–7 citing, inter alia, Martin v Isbard (1946) 48 WALR 52, described in Lawrie v Meggitt (1974) 11 SASR 5 at 8, by Zelling J, as an ‘extreme case … not to be taken as governing the ordinary situation in matters of this kind’. 206. Liston v Liston [1981] 31 SASR 245. 207. Lawrie v Meggitt (1974) 11 SASR 5 at 8. 208. Previously expressed, eg, in Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 859; Moore v AGC (Insurance) Ltd [1968] SASR 389 at 394; Lawrie v Meggitt (1974) 11 SASR 5 at 8; and subsequently in Viera v Water Board (1988) Aust Torts Reports 80-166 at 67,546 per Clarke JA (NSWCA). 209. Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514. 210. The High Court in Watts v Rake (1960) 108 CLR 158 at 159 held that where plaintiffs decline medical or surgical treatment, the burden of proof may shift to them on the question of mitigation of damages. 211. (1970) 92 WN (NSW) 1070. 212. Ibid at 1075 per Sugerman P. Also Mason JA at 1086; followed in English v Rogers [2005] NSWCA 327. The decision in Wormald v Robertson (1992) Aust Torts Reports 81-180 may also be explained in these terms. 213. Stansibie v Troman [1948] 2 KB 48; 1 All ER 599. 214. Curmi v McLennan [1994] 1 VR 513 (App Div). 215. (1991) 171 CLR 506 at 518–19; 99 ALR 423 at 432. This decision also illustrates the difficulty of applying these principles, the trial judge finding both parties liable (concurrent causes), the Full Court finding the plaintiff solely to blame (in effect his act being a novus actus interveniens), while the High Court found the defendant solely to be responsible for the reasons cited above. 216. Similarly with the rescuer situation such as that in Chapman v Hearse (1961) 106 CLR 112; see also Mt Isa Mines Ltd v Bates (1972) 46 ALJR 408 where the employer was held liable for injury to employee’s eye caused by the latter’s failure to wear the safety glasses provided by the employer. 217. [1981] QB 625; 2 All ER 408 (CA). 218. Ibid at 637 and 414 respectively. 219. [1970] AC 1004 at 1030; 2 All ER 294 at 300 (HL). 220. [1981] QB 625 at 644; 2 All ER 408 at 419. 221. Ibid at 647 and 421 respectively. Cf P Perl (Exporters) Ltd v Camden LBC [1984] QB 342;

[1983] 3 All ER 161 (CA). 222. And see Knightly v Johns [1982] 1 All ER 851 (CA) where the defendant negligently overturned a car in a road tunnel and the plaintiff, a police cyclist, riding the wrong way in the tunnel was then injured in a collision with another car, a police inspector having carelessly failed first to order the closure of the tunnel. The plaintiff’s injuries were held to be too remote because they were not reasonably foreseeable. 223. McPherson J in Nilon v Bezzina [1988] 2 Qd R 420 at 424 described several independent concurrent tortfeasors as ‘tortfeasors by whose acts a single indivisible harm is inflicted, but which is caused by independent acts of those two or more tortfeasors’. 224. [1930] NZLR 347 at 349 per Blair J. 225. The majority decision in Holtby v Brigham & Cowan (Hull) Ltd [2000] EWCA Civ III can be explained on this basis. Nevertheless, as noted by Stuart-Smith LJ at [20], the defendant who omits to plead that others were responsible in part runs the risk of being held liable for all the damage. 226. New South Wales v Burton [2006] NSWCA 12 at [73]. 227. For example, Barker v Permanent Seamless Floors Pty Ltd [1983] 2 Qd R 561 at 564 per Connolly J. 228. The victim may therefore recover damages from any one of the tortfeasors, or all of them: Grant v Sun Shipping Co Ltd [1948] AC 549 at 563; 2 All ER 238 at 245 per Lord du Parcq; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 429; 107 ALR 617 at 623 per McHugh J. 229. The Koursk [1924] P 140. Should the first defendant remain liable if the other ‘cause’ is the nontortious act of another person, or a natural cause, or is the act of the plaintiff? Cf Cummings (or McWilliams) v Sir William Arrol & Co Ltd [1962] 1 All ER 623. 230. Rouse v Squires [1973] QB 889 at 898; 2 All ER 903 at 910 (CA) per Cairns LJ: ‘If a driver so negligently manages his vehicle as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout, but not those who deliberately or recklessly drive into the obstruction, then the first driver’s negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction collides with it or with some other vehicle or some other person’. 231. (1961) 106 CLR 112. 232. Liability was apportioned three-fourths to Chapman. 233. (1985) 59 ALR 439 at 449–50 (FC). 234. As the court said in Speirs v Caledonian Collieries Ltd [1957] SR (NSW) 483 at 506, ‘there are many cases in which one person is responsible for damage which would not have occurred but for the act of a stranger’. See also Hale v Hants & Dorset Motor Services Ltd [1947] 2 All ER 628 (CA); Robinson v Post Office [1974] 2 All ER 737 (CA). Cf Burrows v March Gas and Coke Co (1872) LR 7 Exch 96; Ingram v United Automobile Services Ltd [1943] KB 612; 2 All ER 71 (CA); Grant v Sun Shipping Co Ltd [1948] AC 549; 2 All ER 238 (HL); Hartley v Mayoh & Co [1954] 1 All ER 375 (CA). On the problem of the consequential damage being caused jointly by the negligence of the plaintiff and the continuing negligence of the defendant, see Carlsholm (Owners) v Calliope (Owners), The Calliope [1970] P 172; 1 All ER 624. 235. Apportionment operates solely between tortfeasors, though the injured party is entitled only to a single satisfaction of the debt. For a full discussion of the apportionment principles see 29.24ff.

236. Golder v Caledonian Ry Co (1902) 5 F (Ct of Sess) 123 at 125 per Lord Kinnear. 237. As to this concept, see, eg Kerry v England [1898] AC 742; Von Hartmann v Kirk [1961] VR 544; Collins v Repatriation Commission (2009) 177 FCR 280; 258 ALR 204 (FC) at [67]ff per Mansfield and Stone JJ. 238. (1902) 5 F (Ct of Sess) 123. 239. Smith v Leech Brain & Co Ltd [1962] 2 QB 405. 240. Von Hartmann v Kirk [1961] VR 544 at 545 per Sholl J; Isitt v Railway Passengers Assurance Co (1889) 22 QBD 504 at 512. Can Commonwealth v Butler (1958) 102 CLR 465 be explained on the basis that the supervening occlusion was not in itself a natural and probable consequence of the defendant’s act? On the assessment of damages in the light of the plaintiff’s shortened lifespan, see 11.30. 241. [1962] SASR 128. 242. [1972] VR 839 at 843 (FC). 243. The onus of proving what injuries are received as a result of the defendant’s tort remains upon the plaintiff, as well as their extent and duration: Purkess v Crittenden (1965) 114 CLR 164. The High Court there explained away any apparent anomaly arising out of its previous decision in Watts v Rake (1960) 108 CLR 158. See also Pastras v Commonwealth [1967] VR 161 at 164. 244. For an application of these principles by the English Court of Appeal, see Cutler v Vauxhall Motors Ltd [1971] 1 QB 418; [1970] 2 All ER 56. 245. For example, cuts and bruises sustained in an accident which then precipitate the pre-existing injury. 246. The availability of damages under this head were noted by Russell LJ (dissenting) in Cutler v Vauxhall Motors Ltd [1971] 1 QB 418 at 423; [1970] 2 All ER 56 at 58–9. 247. See, eg, Edmund Davies LJ in Cutler v Vauxhall Motors Ltd [1971] 1 QB 418 at 426; [1970] 2 All ER 56 at 61–2. 248. For example, Newell v Lucas [1964–5] NSWR 1597. 249. [1970] AC 467 (HL). 250. For a justification of this approach, see Borrowdale, ‘Vicissitudes in Anglo-Australian Perspective’ (1983) 32 ICLQ 651. 251. [1970] AC 467 at 494. 252. Ibid at 495. 253. [1982] AC 794 (HL). 254. Ibid at 809 per Lord Edmund-Davies. 255. Ibid at 802 per Lord Wilberforce. 256. Ibid at 806 per Lord Edmund-Davies. 257. Ibid at 807 per Lord Edmund-Davies. 258. Ibid at 815. 259. (1971) 45 ALJR 80. 260. See, eg, ibid at 88 per Gibbs J.

261. Ibid at 85–6. 262. Jobling v Associated Dairies Ltd [1982] AC 794 (HL). 263. Per Brett LJ in Phillips v London and South Western Ry Co (1879) 5 CPD 280 at 291–2. 264. Per Lord Macnaghten in Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 at 431. 265. Curwen v James [1963] 1 WLR 748; Mulholland v Mitchell [1971] AC 666 at 680 per Lord Wilberforce. 266. Per Lord Keith in Jobling v Associated Dairies Ltd [1982] AC 794 at 814. 267. Jobling v Associated Dairies Ltd [1982] AC 794 (HL). 268. Williamson v John I Thorneycroft & Co Ltd [1940] 2 KB 658. 269. Curwen v James [1963] 1 WLR 748; also Mead v Clarke, Chapman & Co Ltd [1956] 1 WLR 76 where the widow’s remarriage was held to be a vicissitude affecting the needs of her children for support. 270. [1955] QWN 67. Similarly, State Rail Authority v Wiegold (1991) 25 NSWLR 500 at 515; Gray v Thames Trains Ltd [2009] 1 AC 1339; 4 All ER 81 at [81] per Lord Rodger, at [103] per Lord Brown. 271. [1970] AC 467 (HL). 272. See, eg, Kidd, ‘Damages for Personal Injuries: Taking Account of the Vicissitudes of Life’ (1982) 56 ALJ 389. Cf Borrowdale, ‘Vicissitudes in Anglo-Australian Perspective’ (1983) 32 ICLQ 651, who maintains that the essential distinction is not between tortious or non-tortious harm but between compensable and non-compensable injury. 273. [1981] QB 389; [1980] 3 All ER 769. 274. [1982] AC 794 (HL). See judgments of Lord Russell at 810–11 and Lord Keith at 815. The Full Court in Nilon v Bezzina [1988] 2 Qd R 420 at 429 held that in so far as the decisions in Baker and Jobling might suggest a distinction in the assessment of damages between a supervening second event the cause of which is a tort and one the cause of which is a natural cause, they should not be followed. 275. [1982] AC 794 at 805, 808–9 and 821 respectively. 276. [1970] AC 467. See particularly Fenton Atkinson LJ at 482. This decision of the Court of Appeal was followed in Australia in Griffiths v Commonwealth (1983) 50 ACTR 7; cf Nicholson v Walker (1979) 21 SASR 481. 277. Of course even the second tortfeasor is entitled to have the court take into account any vicissitudes that might be relevant to the assessment of damages. 278. [1962] 1 QB 33. 279. Ibid at 37, 39. Incidentally, there could be no question of the second collision being regarded as a vicissitude vis-à-vis the first tortfeasor because at the time of the original trial the second collision had not yet occurred. 280. [1970] AC 467 (HL). 281. Ibid at 493–4, 495.

[page 343]

CHAPTER 10 Defences to Negligence

10.1 There are two principal defences to an action in negligence — that the plaintiff’s own carelessness contributed to the injury sustained, and that the plaintiff had voluntarily assumed the risk of that injury. Each is considered in turn below. A further matter which may be pleaded by way of defence is that the plaintiff and defendant were engaged in a joint illegal activity at the time the harm was suffered. Because illegality is a defence that may also be pleaded to an action in trespass, it has been dealt with in Chapter 6.

Contributory Negligence 10.2 Contributory negligence consists of the plaintiff’s failure to take reasonable care for his or her own safety and wellbeing which contributes, at least in part, to a subsequent injury. At common law it was a complete defence if the defendant proved that the plaintiff was guilty of contributory negligence but since the advent of the apportionment legislation the effect of contributory negligence is no longer to afford a complete defence, but merely to reduce the damages to the extent to which the plaintiff’s lack of care has contributed to the harm.

Conduct constituting contributory negligence 10.3 In order to establish this defence the defendant must plead and prove that: 1. the injury of which the plaintiff complains results from the particular risk

to which that party was exposed by a lack of care; 2. the negligence of the plaintiff contributed to the injury; and 3. there was fault or negligence on the part of the plaintiff. Each of these elements will be considered in turn.

Injury within the risk 10.4 This is a requirement which may be compared with the rule that the plaintiff, in an action based on negligence, must prove that the risk which in fact materialises is the one which the defendant was under a duty to guard against: see 9.7ff. In order to satisfy this requirement the defendant must show that the harm sustained by the plaintiff belongs to that general class of perils to which the plaintiff was exposed by [page 344] his or her own negligent conduct. Jones v Livox Quarries Ltd1 illustrates the operation of this rule: the plaintiff was injured while riding down the slope of a quarry on the back of the defendants’ vehicle (contrary to their orders) when another of their vehicles, driven negligently, hit it from behind. The prohibition had been issued with the possibility in mind of an employee falling off or being crushed inside the vehicle, but, as Singleton LJ said:2 … those were not the only risks to which [the employee] had subjected himself. He had put himself in a dangerous position which in fact exposed him to the particular danger which came upon him … he ought [not] to be allowed to say that it was not a cause operating to produce the damage, even though … the prohibition against riding on the vehicle was not made with that particular risk in mind.

It is plain from the judgments in that case that, if the damage sustained by the plaintiff had been foreign to the risk created by his negligent conduct, the defence would have failed. If, for example, the plaintiff had sat on an unsafe wall and the driver of a car negligently crashed into it, injuring him, or if he had been injured in the instant case, not by another vehicle, but by a shot from a gun fired by a negligent sportsman,3 he would not have been contributorily negligent.

It is always necessary to examine the plaintiff’s ‘negligent’ conduct to ascertain whether the risk thereby created is, in fact, the risk that eventuates. A pillion passenger who was injured through the negligent driving of a motorcyclist with whom he had accepted a lift was not contributorily negligent even though he knew that the headlights of the motorcycle were deficient, because the accident was not occasioned by the absence of headlights, but by the driver’s lack of attention and driving on the wrong side of the road.4 Nor, in Gittens v O’Brien,5 was an intoxicated passenger, who was killed when the car in which he was travelling left the road and collided with a tree, held to be contributorily negligent for, even if his intoxicated condition deprived him of the ability to assess the sobriety of the defendant driver and thereby constituted a lack of reasonable care for his own safety, the evidence nevertheless did not disclose that this departure from the standard of care was relevant to the collision or death. The court held that there was insufficient evidence that the defendant was so drunk as to be incapable of driving the car safely.

That the negligence was contributory 10.5 This aspect of the defence of contributory negligence calls for the most careful examination. The essence of the matter is causation. As Lord Atkin has said:6 … if the plaintiff were negligent, but his negligence was not a cause operating to produce the damage, there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation.

The key to a proper understanding of the development of the case law on this subject is a full appreciation of the seriousness of the rule of common law which totally [page 345] deprived the plaintiff of a remedy, if he or she were guilty of any fault, however slight, contributing to the damage which had been suffered. The position at common law is illustrated by reference to the old leading case of Butterfield v Forrester.7 The defendant had negligently left a riding

pole lying on the highway where at dusk it was run into by the plaintiff. The court held the plaintiff to be solely responsible for the accident because, had he been riding with due care, he would have seen the pole and avoided colliding with it. The negligence of the defendant was thus entirely overshadowed by that of the plaintiff, in accordance with the application of the rule. Not unnaturally, the courts sought to mitigate the harshness of this doctrine of contributory negligence. In doing so they evolved various tests to cover different sets of circumstances. The best-known test was the so-called ‘last opportunity’ rule applied in the notorious case of Davies v Mann.8 The plaintiff negligently left his ass, fettered by its forefeet, on the highway. Some time later it was run into by the defendant who had been driving his horses and wagon at a smartish pace. Had he used proper care, the defendant could have avoided injuring the ass, but he was driving too fast. It was held that, notwithstanding his own prior negligence, the plaintiff could recover because the defendant could still have avoided the consequences of that negligence. Subsequently, attempts were made to establish as rules of law further classifications of facts based on the time of the several acts and the knowledge of the parties.9 So, for example, the doctrine of ‘constructive last opportunity’ was developed whereby the defendant was regarded as having had the last chance of avoiding the accident if, by reason of earlier actions, he or she was effectively disabled from taking the necessary precautions. The common flaw in all these rules was that they sought to allocate the totality of fault to only one party who thereby became solely responsible for the resultant damage. However, despite its shortcomings, the ‘last opportunity’ rule was, for some time, widely treated as if it were a test of causation. The High Court ultimately exposed the rule for what it was: an elaborate and, in the main, unsuccessful attempt to solve the problem created by the common law, which, despite the contributory nature of the acts involved in the accident, insisted on holding the plaintiff altogether to blame. The court held that the ‘last opportunity’ rule, though not necessarily without usefulness, had produced ‘a multiplication of intricacies’ such that the ‘intended panacea [had] become almost a poison’.10

10.6 With the advent of the apportionment legislation, the practical need

for the courts to select a particular cause as the predominant one has disappeared. As a consequence, the ‘last opportunity’ rule and its various offshoots and derivatives [page 346] were rendered obsolete.11 The legislation does not, however, alter the law of causation upon which contributory negligence depends: since a plaintiff whose acts contributed to the damage is now no longer altogether defeated, but merely has the damages proportionately reduced to the extent to which he or she was at fault, the courts are free to look for all the causes and apportion accordingly. As Lord Porter has put it:12 [The apportionment legislation] enables the court (be it judge or jury) to seek less strenuously to find some ground for holding the plaintiff free from blame or for reaching the conclusion that his negligence played no part in the ensuing accident inasmuch as owing to the change in the law the blame can now be apportioned equitably between the two parties.

In order to decide whether the plaintiff’s negligent conduct, within the risk, is contributory, one applies mutatis mutandis those rules of causation set out in Chapter 9. The House of Lords, in an early leading case, Admiralty Commissioners v SS Volute,13 stressed the need, in assessing the question of contributory negligence, to adopt ‘common-sense principles’ such as those a jury would use. In that case the Volute, a convoy leader, changed her course without signalling. The Radstock, on discovering that she was endangered, negligently put on full steam ahead, and a collision occurred. Both vessels were held to blame and apportionment was directed. Concentrating his attention on the timing of the negligent acts, Viscount Birkenhead pointed out that, despite the fact that cases of ‘strictly synchronous negligence’ were rare, the courts could still find that the negligence of both parties contributed to the resulting injury even though their acts were not ‘synchronous’. Situations occur, he added: … in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the party secondly negligent, while not held free from blame … might … invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution.

The test, he pointed out, is whether the plaintiff ‘in the ordinary plain common sense of this business … contributed to the accident’.

The value of espousing a common sense approach was echoed by the English Court of Appeal in Jones v Livox Quarries Ltd,14 where Denning LJ said: There is no clear guidance to be found in the books about causation. All that can be said is that causes are different from the circumstances in which, or on which, they operate. The line between the two depends on the facts of each case. It is a matter of

[page 347] common sense more than anything else … The man’s negligence here was so much mixed up with his injury that it cannot be dismissed as mere history. His dangerous position on the vehicle was one of the causes of his damage …

This does not, of course, mean that, whenever the negligence of the defendant is preceded by negligence on the part of the plaintiff, there is always contributory negligence; the acts may be so severable that only that of the defendant can be said to have contributed to the damage15 (but there is no need to retain a separate rule of law called ‘last opportunity’ in order to reach this conclusion). Evershed LJ explained this clearly in Davies v Swan Motor Co (Swansea) Ltd:16 As I understand the Davies v Mann principle … it is this: In that case the plaintiff’s negligence or fault consisted in placing the donkey upon the highway; but it having been observed in due time by the defendant … the negligence of the plaintiff had really ceased to be an operating factor in the collision … the plaintiff … as a negligent actor, was at the material time, functus officio, one might say functus culpa.17

The difficulties encountered in determining whether the plaintiff’s negligence is contributory are usually not of law but of fact:18 there is room for difference of opinion as to whether, in any particular case, the negligence of the plaintiff has ceased to be an operating factor. But only if this inference is made does the plaintiff’s conduct cease to be contributory negligence.19 The test of ‘proximate cause’ espoused by the High Court20 as well as that of ‘substantial cause’ adopted by the House of Lords21 remain valid but it should be borne in mind that one factor may be so powerful that it dispels other factors as contributing agents. One does not, however, apply a mechanical rule like that of ‘last opportunity’.

10.7 In some situations the negligent actions of the plaintiff might not be a

cause of the accident itself; they may, nevertheless, amount to contributory negligence where, but for those actions, the resultant harm would have been appreciably less. Typical of these situations, but not confined to them22 , are the ‘seat belt’ or ‘crash helmet’ cases. Discussing the position at common law,23 Lord Denning, in Froom [page 348] v Butcher,24 was quick to point out the distinction between causing the accident and causing the damage: In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving … and in part by the failure of the plaintiff to wear a seat belt.25

For a claim in negligence to succeed, the plaintiff has to prove damage and, to the extent that his or her own negligence has caused the injury, the amount of the damages falls to be reduced. Lord Denning again: If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the court thinks just and equitable.26

Where it can be shown that the plaintiff’s failure to wear a seat belt or crash helmet made no difference to the extent of the injuries,27 damages will not be reduced. In Kirk v Nominal Defendant (Qld)28 a pillion passenger was injured when two motorcycles collided. The court dismissed the argument that she was contributorily negligent in omitting to wear jeans or other protective clothing on the grounds that the evidence did not indicate that the wearing of jeans would have prevented the laceration which was the injury of which she complained. Thomas J observed further that, unlike the social awareness which has gradually developed with respect to the wearing of seat belts, it is not reasonable to presume that ‘the social consciousness of those who ride motorcycles in our community has reached the stage where it is recognised that one shows a lack of due care if one fails to wear jeans or other similar clothing’.29 Less acceptable is the suggestion made by Lord Denning30 that where the injury would have been prevented altogether by the use of a seat belt the

damages should be reduced by 25 per cent and that where it would have been partially prevented the damages should be reduced by 15 per cent. Such arbitrary figures ignore the fact that, in Australia if not in England, the extent of the reduction in any particular case (legislation aside) depends upon comparing the degree to which the two parties respectively fell below the standard of care expected of each — their comparative [page 349] culpability: see 10.17. In consequence, there can be no standard percentage by which damages are to be reduced.31

10.8 Legislation in New South Wales, South Australia and the Australian Capital Territory has modified these common law principles to some extent. The Motor Accidents Compensation Act 1999 (NSW) dictates, in s 138(2)(c) and (d), that a finding of contributory negligence must be made if the injured person was not wearing a seat belt or crash helmet at the time of the accident,32 but in s 138(3) permits a court to make such a consequent reduction in damages as it thinks just and equitable. If the court considers that the failure to wear a seat belt either did not contribute at all to the injuries, or was fully justified, the reduction under the latter subsection may be a percentage of nil.33 The Civil Liability Act 1936 (SA) s 49(3) requires that the damages awarded to a person who was not wearing a seat belt at the time of the accident must be reduced on account of that failure by 25 per cent, even though the fact that a seat belt was not being worn at the time did not have any effect on the extent or severity of the injuries.34 The Civil Law (Wrongs) Act 2002 (ACT) s 97(1) raises a presumption of contributory negligence and s 97(5) requires the damages to be reduced ‘to the extent that the court considers just and equitable’. In a road accident, it is not uncommon for either or both of the parties to suffer both personal injury and property damage to the motor car. In such a case the court must, for the purpose of assessing the degree of contributory negligence of each party, distinguish clearly between the two types of injury suffered. As was pointed out in Azzopardi v Bois,35 on the supposition that two drivers have been found to have been equally to blame for the collision:

… it may well be proper to reduce by 50 per cent the total property damage suffered by each. But the personal injuries suffered by one may have been significantly aggravated by his own failure to take reasonable care for his own safety; as, for example, where he failed to use his safety belt … or … where his injuries were aggravated by reason of his driving his car with his elbow … extended outside the car … [Here] it might well be appropriate to reduce by more than 50 per cent the [personal] damages awarded.

In other words, although the damages in each case have resulted from the same collision, different issues may need to be considered in assessing personal injury as opposed to property loss. [page 350]

The standard of care expected of the plaintiff 10.9 To establish the defence of contributory negligence, the defendant need not prove that the plaintiff owed a duty of care for, as was said in Nance v British Columbia Electric Ry Co Ltd:36 … when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.

In this regard it has hitherto been accepted that there is an important difference between establishing negligence simpliciter and proving contributory negligence; the existence of a duty owed by the defendant to the plaintiff to take good care being essential to the former but non-existent with respect to the latter.37 More recently, in Vairy v Wyong Shire Council, the view was expressed38 that this cannot be accepted without qualification and the plaintiff owes a duty not just to look out for himself but also ‘not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized’. However, whether this, in law, is what amounts to a ‘duty’ is doubtful — although it may influence the court’s opinion of what level of conduct is to be expected of a plaintiff in the modern world. Whether the plaintiff has been lacking in care for his or her own safety is in every case a question of fact39 to be judged objectively, eliminating the personal equation and independent of the personal idiosyncrasies of the plaintiff;40 and a decision will have to be made, in all the circumstances of

the case, whether a heedless or inadvertent act is indicative of such a lack.41 The obviousness of the risk42 is also a [page 351] factor.43 Although the question is one of fact, some general principles emerge from the cases as to the approach to be taken; those principles are considered below, followed by a discussion of the extent to which the individual characteristics of the plaintiff may be taken into account, when that party is either a child or intoxicated. A further particular factor which may be relevant in assessing the plaintiff’s negligence is whether the injury occurred in a situation of sudden emergency created by the defendant. The discussion concludes with a consideration of the circumstances in which a third party’s contributory negligence will be imputed to the plaintiff.

10.10 General principles The standard of care expected of the plaintiff is to be measured against that of a person of ordinary prudence.44 The question has tended to arise in industrial accident cases, where it has been held45 that, depending always upon the actual circumstances, even the ‘momentary inadvertence or thoughtlessness of a worker performing a routine task’ might be regarded as contributory negligence. In considering this question, account will be taken of the circumstances and conditions in which the work is to be done;46 more particularly, the courts have acknowledged that allowance should be made for the familiarity of the plaintiff with the conditions of work, the repetitive nature of the task and the noise and confusion of the surroundings, even when not in a factory environment.47 Other relevant factors include whether the plaintiff was acting in obedience to a direction or warning, or was under pressure to complete the job promptly.48 It may perhaps be assumed that decisions on the standard of reasonable care required of the defendant in negligence apply mutatis mutandis to determine whether the plaintiff has taken reasonable care for his or her own safety. Certainly, many of the problems relating to the standard of reasonableness discussed with reference to the standard of care in the tort of negligence occur here. Worth repeating is the rule that ‘a prudent man will guard against the possible negligence of others when experience shows such negligence to be common’.49

This rule has frequently been applied in road accident cases irrespective of whether the plaintiff was pedestrian or driver.50 In Purcell v Watson51 Gibbs J held a pedestrian walking along an unlit road at night to be contributorily negligent because he: … could not assume that the driver of the approaching vehicle was careful and alert and would see him in time to avoid him. The assumption that other users of the highway will act reasonably and safely is so often falsified that it cannot be said as a general rule that a user of the highway can reasonably act on that assumption.

[page 352] Although pedestrians are equally entitled, along with drivers, to use public roads, they do not have the right to ignore the reasonable precautions which the law expects them to observe.52 The High Court has regarded as contributorily negligent a pedestrian who, knowing the nature of his defective peripheral vision, nonetheless proceeded to cross with the green light without first checking that the crossing was clear for him and who was knocked down by a bus which had jumped an amber light.53 Nor will the fact that the obligation on the defendant to act in a particular manner is imposed by law necessarily mean that the plaintiff can rely upon its being observed: The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law.54

This is not to assert that the plaintiff can never proceed on the assumption that the defendant has complied with the law: in Grant v Sun Shipping Co Ltd 55 it was noted that where the negligence consists in a breach of regulations, made to secure the safety of workers, which are known to be strictly enforced in the usual course of events (for example, in the course of a ship’s discipline), a worker will not necessarily be negligent in assuming there has been compliance with the law. As stated in Astley v Austrust Ltd,56 ‘[i]n many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty … There is no absolute rule. The duties and responsibilities

of the defendant are a variable factor in determining whether contributory negligence exists’.57 In guarding against another’s negligence there is no need to anticipate profound folly.58 On the other hand, the plaintiff must not ‘cut things so fine as to allow no margin of safety for the mistakes or thoughtlessness’ of the defendant.59 But where the circumstances are such that it is impossible to be sure that the conduct of others is likely to conform to a definable and widely accepted practice, a reasonable plaintiff should be less content to rely upon their care and skill, and should be more ready to take account of their follies and imperfections.60

10.11

Children; physical and mental disabilities The standard of behaviour required of children is an issue of particular concern. It is trite law that even a [page 353] very young child is capable of contributory negligence61 and that, in an appropriate case, the consequent reduction in damages may well be more than nominal.62 The High Court in McHale v Watson63 established conclusively that age is a relevant factor, and, although a child is not to be judged by the same standard of care as that expected of an adult in a similar situation, the standard is nevertheless essentially objective.64 While it is true that the court was assessing the negligence rather than the contributory negligence of the child defendant, the objective standard espoused by it in that case has served as a model in many subsequent decisions65 involving the contributory negligence of children and an objective standard must now be regarded as the norm. In practical terms this entails that the child should demonstrate that degree of care for its own safety as could reasonably be expected of a child of similar age, intelligence and experience.66 Obviously, the younger the child, the less is expected of him or her. As the matter was put by Bright J in Beasley v Marshall: The descending line measuring reasonable expectation of care rapidly approaches zero as the age diminishes, but the line is apparently asymptotic. At an age of under five years the required

duty of care is close to zero …67

The standard of care is not fixed solely by reference to knowledge of the risk because young children have little capacity to remember and apply previously gained knowledge so as to avoid injury. Nor would the perception of danger of itself be decisive — what must be looked to is the child’s ability to apply its knowledge to its perception of the risk.68 In this regard deference must be paid to factors such as impulsiveness, selfishness and singlemindedness, which are behavioural characteristics of childhood.69 The most common setting for the contributory negligence of a child to be called into question is that of the motor accident. The court here must take account of two factors. The first is that the law does not expect a young child to exhibit the same [page 354] degree of concentration and responsibility that it requires of an adult. The second is the comparison that must be made between the respective standards of care required of a driver and a pedestrian. The standard required of the driver is invariably higher than that expected of the pedestrian because a breach of that standard by the former has the potential of causing serious injury to the latter. Inevitably, the result will be a marked apportionment against the (usually adult) driver.70 By the same reasoning, the standard of care required by the law of a child riding a pushbike would be somewhat higher than that demanded of a pedestrian of the same age.71 Despite some judicial sympathy72 for the view that where a person is unable to meet the standard of care generally applicable by reason of a physical, if not a mental, disability this may preclude a finding of contributory negligence,73 the weight of judicial authority leads to the conclusion that the question of the plaintiff’s contributory negligence falls to be resolved by the same rules that determine whether the defendant is negligent.74 It follows that any exceptions to or glosses on the objective test are in line with those ordinarily applicable to the assessment of the standard in negligence.75 The relevant provisions of the apportionment legislation which reflect recommendation 30 of the Ipp Report, ‘Review of the Law of Negligence’ (2002) should, moreover, be read in this light.

10.12 Intoxication Applying the principle that contributory negligence consists in a failure to take reasonable care for one’s own safety, it follows that a passenger injured by negligent drunken driving is contributorily negligent when accepting a lift knowing, or having reason to be aware,76 that the driver is so drunk as to have an impaired capacity to drive carefully.77 Some jurisdictions now make special provision for this circumstance: the Motor Accidents Compensation Act 1999 (NSW) s 138(2)(b)(ii) provides that a finding of contributory negligence shall be made in such a case,78 whereas the Civil Liability Act 1936 (SA) s 47(1) and the Civil Law (Wrongs) Act 2002 (ACT) s 96(1) raise a presumption of contributory negligence in this event. [page 355] The matter becomes more complex where the passenger has also been drinking. The view was taken in Insurance Commissioner v Joyce79 that if the passenger is sober enough to know and understand the risk, he or she will no doubt be negligent. There is, moreover, authority for the view that, where the passenger has imbibed so much alcohol that any capacity to know and understand the danger has been seriously weakened, and this incapacity is self-induced, contributory negligence will lie. Latham CJ in Joyce’s case regarded the passenger in this situation as having deliberately disabled himself from avoiding the consequences of the defendant’s negligent driving and thus responsible.80 However, too liberal an application of this view carries with it the possibility of imposing liability on the plaintiff largely on moral grounds. White J in Watt v Bretag81 warned against this: Does it matter why or how the pedestrian (drunk or sober) came to step into the path of heavy traffic or why the pedestrian stepped into the drunken driver’s car? I think not. What matters is the objective fact that he did … It should not matter, in assessing ‘fault’, whether the pedestrian stepped off the curb (or the passenger into the car) through insobriety, daring, stupidity, or poor eyesight. The objective act of lack of care for one’s safety is the most relevant fault, although other factors have a bearing.

Ultimately it is still a question of fact for the court to ascertain whether the plaintiff displayed an unreasonable disregard for his or her own safety. Where the passenger accompanies the driver on a pub crawl,82 setting out sober but ending up heavily intoxicated, it may be justifiable to say that the

passenger in that conduct has exhibited a lack of reasonable care for his or her own safety by continuing to allow the defendant to drive. It is certainly open to a court to arrive at such a decision where the evidence shows that both parties had spent some considerable time drinking together so that the plaintiff must have had some knowledge of the defendant’s condition.83 Other situations exist where the plaintiff may well be too drunk to make a rational judgment on the driver’s condition but where that fact alone may not necessarily be regarded as evidence of having acted without reasonable care for his or her own safety merely by accepting the lift.84 The circumstances in which the plaintiff became intoxicated may well be relevant.85 Take, for example, the situation where a person attends a party, anticipating that he or she may become too inebriated to drive home [page 356] and so arranges for another guest to provide that transport. So long, of course, as the person does not actually see the driver imbibing heavily, it may be wrong to hold the passenger contributorily negligent for an ensuing accident.86 This circumstance was doubtless what Dixon J had in mind when he said that:87 [F]or the plaintiff, who was not driving the car, to drink until he was too stupid to observe the defendant’s condition can hardly be considered contributory negligence of which the accident was a reasonable or natural cause.

10.13 Doctrine of alternative danger If the negligence of the defendant puts the plaintiff in a position of imminent personal danger, conduct by the plaintiff which in fact operates to produce harm, but which is nevertheless reasonable in the agony of the moment, is likely not to amount to contributory negligence. This approach, also known as the doctrine of alternative danger,88 applies, in principle, to both defendants and plaintiffs89 although, in practice, it has found its main application in the negligence of plaintiffs. The best-known Australian case is Caterson v Commissioner for Railways.90 The plaintiff, having deposited a friend’s luggage in a railway carriage, suddenly found himself, without warning, on board a moving train.

The next station was some 130 kilometres away and his 14-year-old son was alone on the platform 65 kilometres from home. The plaintiff attempted to jump from the train and in so doing injured himself. Finding for the plaintiff, Gibbs J91 dismissed the argument that the doctrine could not be applied where the plaintiff was taking the risk of injury merely to avoid an inconvenience, however great. The question was rather whether he had acted unreasonably in taking the risk and the answer was to be found by weighing the degree of inconvenience to which he would be subjected against the risk taken in the attempt to escape it. The judge referred in passing to the early English case of Jones v Boyce92 in which Lord Ellenborough formulated as a test the question whether the plaintiff had been ‘placed in such a situation as to render what he did a prudent precaution, for the purpose of selfpreservation’. The question is merely whether the plaintiff behaved reasonably in the dilemma in which the defendant had negligently placed him or her,93 due account being taken of [page 357] the alarm which such a situation would engender in the reasonable person similarly placed.94 Nonetheless, as was held in Cortis v Baker,95 the doctrine: … does not mean that what a party does in an emergency created by another can never amount to negligence. It means no more than this, that he is only required to exercise such care and skill as a person of ordinary prudence, firmness and experience might have exhibited in the circumstances of the emergency.

Because the principle is no more than a convenient guide in determining what is, at heart, an issue of fact, it is wrong to assert that it could not survive the introduction of the apportionment legislation.96 The doctrine was extended in Brandon v Osborne, Garrett & Co97 to enable the plaintiff to act without contributory negligence in an attempt to save a close relative from injury. Whether it extends to instinctive acts to protect strangers, or to protect interests other than personal safety, has not yet been tested.

10.14

Imputed contributory negligence In some circumstances the

defendant may plead as a partial defence not only the negligence of the plaintiff but also the negligence of a third party for whose actions the plaintiff is vicariously responsible.98 This is the doctrine of imputed contributory negligence. Its effect, where successful, is to reduce the plaintiff’s damages in much the same way as if the plaintiff had personally failed to take due care for his or her own safety. However, the only circumstances in which the common law continues to impute contributory negligence is that in which the plaintiff would have been vicariously liable for the conduct of another. As is discussed in 26.1, an employer is vicariously liable for an employee’s negligent conduct occurring in the course of employment, the purpose of this liability being to ensure that compensation is available from a party well able to bear the cost. Although the policy imperatives are completely different, the common law took the view that if an employer was liable for the employee’s negligence, the employer should also bear responsibility for the employee’s contributory negligence.99 This principle has been given statutory force in Western Australia and the Northern Territory,100 while the common law rule has been applied in New South Wales.101 Conversely, since an employer is not vicariously liable for the negligence of an [page 358] independent contractor, there is no imputed liability for an independent contractor’s contributory negligence.102 Although it might appear unjust that an apparently innocent employer should suffer a reduction in damages because of the actions of an employee, that perception must be balanced against the possible injustice to a defendant who might otherwise have to pay the full amount of an award of damages to a corporate employer and then seek to recover some part, in contribution proceedings, from those individual and possibly impecunious employees who were partly to blame for the loss. As the matter was put in a case in which a company was suing its auditors: ‘Why should the negligent auditor be exposed to the payment of the whole of the loss where much of the damage lies at the door of senior management of the plaintiff [company]?’103 Similar sentiments appear to underlie the recent decision of the New Zealand Court of Appeal in O’Hagan v Body Corporate 189855104 in which it held that,

although the apportionment legislation does not specifically refer to vicarious responsibility, policy considerations nevertheless dictate that the legislation does apply to such situations. Accordingly, a solicitor’s negligence in failing to make appropriate enquiries while acting as agent of his client in the purchase of a property was attributable to his client, as his principal, for the purposes of the legislation. But a much more questionable extension of the notion of imputed contributory negligent was made when it was applied to the owner of a motor vehicle that was driven at the relevant time by the owner’s agent. As we shall see in 26.15ff, the notion of vicarious liability for another’s negligence was extended, in relation to injury caused by the use of a motor vehicle, to expose the owner of the car to liability for the negligence of the owner’s agent. The unabashed purpose of this extension of vicarious liability was to allow a greater opportunity for those injured on the roads to have access to the owner’s third party insurance. Indeed, in respect of personal injury those principles have been overtaken by legislation relating to compulsory third party motor insurance in all the Australian jurisdictions which ensures that the driver, whoever he or she may be, shall be taken to be the owner’s agent. However, without giving any apparent thought to the matter, the courts have concluded that if an owner is vicariously liable for the negligence of an agent in driving a car, the owner must also have the contributory negligence of the agent imputed to him or her.105 Such an attribution of fault could have most unfortunate consequences as when the owner requests his or her spouse to drive the car, while remaining a passenger, and the car is involved in a collision that is partly attributable to the driver’s negligence. The owner, while free of any blame for the injuries sustained in the collision, must suffer a reduction in damages commensurate with the extent to which his or her spouse was at fault. It is to be hoped that at some stage heed will be taken of the judicial suggestion106 of a review of the legislation or common law rules which lead to that result. Although there were some other circumstances in which, at common law, the contributory negligence of one was imputed to another, the authorities establishing [page 359]

those principles have subsequently been overruled.107 Other situations of imputed contributory negligence, which may arise in some proceedings for wrongful death and (where it is still available) for loss of consortium, are referred to in the discussion of each of those rights of action: see 11.39 (wrongful death) and 24.4 (loss of consortium).

The apportionment legislation 10.15 Legislation in each of the Australian jurisdictions and in New Zealand108 is based broadly on the Law Reform (Contributory Negligence) Act 1945 (UK) s 1(1) which provides: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

Amendments to the legislation in the Australian jurisdictions in the wake of Astley v Austrust Ltd109 have resulted in the redrafting of the rule in order to accommodate actions for breach of contract.110 Among other matters, the notion of ‘fault’ has been replaced by terms such as ‘failure to take reasonable care’, ‘contributory negligence’ or ‘wrong’ (depending upon whether the plaintiff or defendant is being referred to), but the main thrust of the legislation has not been altered thereby. Contributory negligence must be specifically pleaded by a defendant or otherwise be made an issue.111 The legislation does not permit a judge to apportion liability of his or her own motion.112 In Christie v Bridgestone Australia Pty Ltd113 the judgment of a trial judge who had done so in the absence of a plea of contributory negligence was set aside on appeal and judgment entered for the plaintiff for the full amount of [page 360] the damages as assessed. In Broadhurst v Millman114 it was held that, in directing a jury, the judge should not merely read out the terms of the statute; the jury should be given some guidance as to the comparative approach to be

adopted in assessing the amount by which the plaintiff’s damages are to be reduced. However, in an earlier decision the same court had made the point that the language used by the legislature is ‘reasonably simple’ and requires little, if any, explanation so far as the jury is concerned. It follows that the duty of the judge in this regard will be satisfied with relatively minimal explanation.115

10.16 ‘Damage’ as used in the above-quoted provision is universally defined to include loss of life and personal injury, but it has also been held to cover the purely economic loss flowing from a negligent misrepresentation.116 This aspect has not been affected by the recent changes to the Australian legislation. Similarly, when the legislation speaks of damage which is the ‘result’ of the fault of both parties or the ‘result’ partly of the claimant’s failure to take reasonable care and partly of the wrong of any other person, it appears that deliberately neutral terminology has been chosen, which permits the courts to treat contributory negligence as a matter of causation.117 With respect to the assessment of ‘fault’ or ‘culpability’ the High Court in Pennington v Norris118 has held that no account is to be taken of moral blameworthiness, preferring instead to ascertain ‘the degree of departure from the standard [of care] of the reasonable person’. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant’s negligence is a breach of a duty owed to other persons and therefore blameworthy the plaintiff’s ‘contributory’ negligence is not a breach of any duty at all, and it is difficult to impute ‘moral’ blame to one who is careless of his own safety.119

It has been noted120 that the definition of ‘fault’ recognises that the term ‘negligence’ when used in the expression ‘contributory negligence’ bears a meaning different from that when negligence is the cause of action. A major point of difference is that, in actions for contributory negligence it is not necessary to prove a breach of a duty to another but merely that the plaintiff has exhibited a lack of care for his or her own safety, thereby contributing to the injuries suffered. Applying this logic the House of Lords, in Metropolitan Police Commissioner v Reeves,121 has held that the term ‘fault’ in [page 361]

the legislation is wide enough to cover the situation where the plaintiff (in that case a prisoner) has deliberately injured or killed himself.122 In Reeves’ case the plaintiff was held guilty of contributory negligence even though the act which occurred (his suicide) was the very act which the defendant was under a duty to guard against. Approaching the question from the perspective of causation, the court held that, while the deliberate nature of the plaintiff’s act was not such as to render it a novus actus interveniens, the plaintiff was nonetheless partly at fault and therefore liable under the apportionment legislation. In Astley v Austrust Ltd,123 a case involving very different facts, the High Court similarly arrived at the conclusion that a plaintiff may be guilty of contributory negligence ‘even if the “very purpose” of the duty owed by the defendant is to protect the plaintiff’s property [or other interests] …’.124 In Astley v Austrust Ltd, however, the High Court justified its decision by reference to the fact that: … contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule.125

In reducing the damages the court must have regard ‘to such extent as [it] thinks just and equitable … to the claimant’s share in the responsibility for the damage’. In approaching this task the courts have acknowledged the ‘very wide discretion’ given by the legislation to the judge or jury entrusted with the original task of making the apportionment.126 Consequently, it is difficult to mount a successful challenge to the trial court’s apportionment.127 This does not, however, preclude considerable differences of judicial opinion as to what constitutes a ‘just and equitable’ apportionment in the individual case.128 [page 362]

10.17 The apportionment must be ‘just and equitable’ from the point of view of both the plaintiff and the defendant.129 It has been said that a finding of apportionment is a finding upon ‘a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis

and of weighing different considerations’.130 This makes it difficult to determine apportionment by reference to decided cases.131 It involves not only a comparison of culpability, that is, of the degree of departure from the standard of care of the reasonable person132 (the acts of both parties are evaluated in this way), but also a comparison of the relative importance of the acts of the parties in causing the damage.133 Relative blameworthiness and causation must thus be taken into account in any apportionment exercise.134 The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to this comparative analysis; obviously, the significance of the various elements involved in such an examination will differ from situation to situation.135 Where a collision occurred at night between two motor vehicles travelling in opposite directions while each was overtaking a vehicle near the brow of a hill and each had pulled out to the centre of the road, it was said136 that the speed, size and weight of the vehicles in contributing to the severity of the damage should also be taken into account, not merely those factors which contributed to the collision. Accordingly, where the collision is between a semi-trailer or other juggernaut and a bicycle, even if the driver of each made an equal contribution to causing the collision, it would, nonetheless, be ‘just and equitable’ to apportion less responsibility to the rider of the bicycle. A similar approach is manifest in the train of authority in running-down cases which has tended to hold the motorist, who is capable of doing considerable damage to the pedestrian, more culpable than the pedestrian.137 Similarly, in Neumann v The Ship ‘Pelsaert’, account was taken of the ‘relatively helpless position of the vessel at anchor’, as opposed to the negligence of the crew of the Pelsaert in avoiding a collision at sea.138 [page 363]

10.18 One notable outcome of entering into a process of comparison of responsibility is that the courts in effect apportion liability between the parties rather than merely reduce the plaintiff’s damages. This is illustrated by the fact that a judicial determination that the plaintiff was, say, 40 per cent to blame necessarily carries with it the corollary that the defendant was 60 per cent responsible. In theory, if the only factor taken into account was the

degree of departure of each party from the standard of care of the reasonable person, there would be nothing to prevent a finding that totalled more (or less) than 100 per cent responsibility.139 The High Court ruled that the apportionment legislation does not permit an apportionment of 100 per cent to one party,140 although that conclusion was subsequently abrogated by the Civil Liability Act 2003 (NSW) s 5S which empowers a court to reduce damages by 100 per cent if it thinks that such a conclusion is just and reasonable. The application of the apportionment legislation in cases where the plaintiff has framed its action in both tort and for breach of contract was considered in Astley v Austrust Ltd.141 After ruling that concurrent liabilities in both contract and tort may arise in cases of professional negligence and, accordingly, that a client may sue a solicitor in either contract or tort or both,142 the High Court reversed a marked trend of recent decisions in the lower courts143 by holding that the apportionment legislation (in this instance the then Wrongs Act 1936 (SA) s 27A) was concerned only with actions in tort and did not affect awards of damages based on breach of contract.144 The court’s approach to the matter was stated to be one of ‘statutory construction which is to be resolved by reference to the relevant text, history and purpose of the statute’145 although policy considerations were also taken into account. The outcome of the judgment is that where the defendant is liable concurrently in tort and contract for breach of a duty of care (as was the position in Astley’s case) an award of damages may not be reduced on account of the contributory negligence of the plaintiff. Given the not inconsiderable practical implications of the judgment,146 particularly for those rendering professional services, it is not surprising that amending legislation has since been introduced in all the Australian jurisdictions.147 [page 364]

Voluntary Assumption of Risk Meaning of voluntary assumption of risk

10.19 It has been explained in 6.4 that the consent of the plaintiff may take two forms: consent to the actual invasion of a protected interest, as where a person invites someone to walk on to his or her land, or consent to the risk of a tort being committed. The latter will be discussed now, for although it is not solely concerned with negligence, the risk assumed by the plaintiff is usually that of the defendant’s negligent conduct. The Latin maxim, volenti non fit injuria, is commonly used to embrace both these aspects of consent. Assumption of risk has been summarised thus:148 If the defendants desire to succeed on the ground that the maxim volenti non fit injuria is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.

10.20 The point must be made at the outset of discussion of this defence that, as part of the reforms to the law of negligence introduced in 2002, legislation in each of the states149 (but not the territories) seeks to make it easier for the defendant successfully to rely on it.150 The legislation provides that a plaintiff who brings proceedings seeking compensation for harm151 caused by another’s negligence is presumed to have been aware of the risk of harm if it was an ‘obvious risk’ (as defined in the legislation) unless he or she proves, on the balance of probabilities, that they were not so aware.152 The effect of these provisions is to facilitate proof of the common law requirements of knowledge and appreciation of the risk, but not to impinge on the third element of the defence, namely that that the plaintiff must freely and voluntarily agree to assume that risk.153 The legislation accordingly modifies, rather than supplants, the common law defence of volenti.154

Volenti distinguished from other defences 10.21 The defence of voluntary assumption of risk is similar to a number of other means by which a person may seek to obtain exculpation for his or her careless conduct. These other means are: (1) arguing that the standard of care, in the light of the parties’ relationship, is such that, in all the circumstances there has been no breach of duty; (2) relying on a contractual exclusion of liability; and (3) invoking a non-contractual notice, which has been sufficiently brought to the plaintiff’s [page 365]

attention, which declares the defendant’s immunity from liability. Each of these will be considered in turn. It must, however, be stressed at the outset that, while each of these approaches, if successful, will exempt the defendant from liability, each is quite distinct from a plea of voluntary assumption of risk, the principal difference lying in the fact that in none of the three means of exculpation about to be considered is it necessary to show the plaintiff’s free acceptance, without pressure of any kind, of the risk that has eventuated. Generally, all that is required is knowledge by the plaintiff of the relevant circumstances, but not necessarily a willing acceptance of them.

No breach of duty 10.22 In a number of earlier cases in both Australia and England the view was taken that, rather than applying the defence of voluntary assumption of risk, a decision might just as properly and logically be arrived at on the basis that, in the circumstances of the case, the defendant had not breached the duty imposed upon him or her.155 Thus, in Insurance Commissioner v Joyce156 and Roggenkamp v Bennett,157 in each of which an inebriated car driver injured an equally drunk passenger, the High Court of Australia was prepared to find in favour of the defendant driver either on the basis of the passenger’s voluntary assumption of risk or on the ground that there had been no breach by the driver of the relevant standard of care.158 And in Murray v Harringay Arena Ltd159 and Wooldridge v Sumner,160 in which spectators at sporting events were injured by the actions of those taking part in the sport, the English Court of Appeal preferred to ascribe the lack of liability of each defendant to the fact that there had been no breach of duty161 rather than to the plaintiff’s voluntary assumption of risk. A distinction can, however, be made between the plaintiff voluntarily assuming a risk and the situation in which the standard of care is reduced to take account of the special and peculiar circumstances in which the parties are placed. In the latter situation, the failure to achieve even those lower expectations may result in liability. Thus, at common law, a participant in a sporting event, while owing a fellow participant a standard of care commensurate with the circumstances, may be held liable for a failure to measure up to that lower standard.162 However, as the High Court in Imbree v McNeilly has noted,163 the conclusion that a lesser standard of care should be

applied to any given set of facts cannot be reached merely by reference to a plaintiff’s ‘actual knowledge of good reasons to think that the defendant may not meet the standard of the reasonable person’ as the ‘plaintiff’s actual knowledge [page 366] of the defendant’s deficiencies provides no certain basis for a conclusion about what is the relevant standard of care’.164

Contractual exclusion of liability 10.23 A further means by which a person may seek to be free of liability for negligent conduct is to include a suitable disclaimer in a contract with the injured party, or to rely on such a clause in an agreement which includes the injured person as one of the contracting parties. Whether such means are successful is pre-eminently an aspect of the law of contract, and considered in texts on that subject;165 it requires no more than brief reference here. If the alleged tortfeasor argues that the plaintiff is contractually bound to accept the risk of the former’s negligence, two questions may need to be answered for that allegation to be sustained. The first is whether the disclaimer is in fact a term of the parties’ contract. If the exclusion clause is merely included in a notice displayed or document delivered to the plaintiff at or about the time that that party entered into a contract with the defendant, the clause will only form part of the contract if the plaintiff had adequate notice of its existence and contents.166 If, on the other hand, the plaintiff has formally demonstrated assent to the clause by signing a contractual document in which it is included, he or she is presumed to be bound by that signature.167 The second question is whether the clause, on its true construction, covers the risk which has eventuated. Very clear words of exculpation will be required if the defendant is to succeed in excluding liability for negligence causing physical injury168 or property damage.169 But where the risk is of purely economic loss, the courts are unwilling to give a clause an interpretation any more restrictive than the words would normally bear.170

If the defendant tortfeasor seeks to rely on an exclusion or limitation clause in a contract to which the plaintiff, but not the defendant, is a party, there are two routes by which that may be achieved, depending upon the effect which the court ascribes to the clause.171 If the provision is treated as one which provides a defence to an accrued cause of action, the difficulty facing the defendant is the doctrine of privity of contract. Since the defendant is not a party to the contract which contains the [page 367] exclusion clause, he or she is precluded from suing to enforce that term172 unless there has been a modification of the privity rule either by statute173 or judicial decision,174 or that rule has been avoided by the creation of a separate and collateral contract between the tortfeasor and the person suffering harm.175 Where the clause of limitation or exclusion is regarded as one which qualifies the obligations which the defendant would otherwise have undertaken, it is dealt with in the same way as any other non-contractual notice of exclusion, as discussed below. A contractual exclusion of liability differs from the defence of voluntary assumption of risk in that, while the consent required for the latter must be freely given, and based on a full understanding of the risk, all that is needed to demonstrate fulfilment of the former is an objective assessment of the plaintiff’s assent to the relevant terms.

Non-contractual notice of exculpation176 10.24 There is a heterogeneous collection of cases in which the defendant, by means of a notice sufficiently brought to the attention of the plaintiff, has been held to have excluded liability for injury suffered by the latter. These cases are discussed separately, since the notice of exculpation has in all of them been accepted as not forming part of a contract between the parties. In some instances, a landowner has successfully excluded liability for injuries suffered by a visitor to the premises by placing a suitable notice at the entry,177 in others a car driver has succeeded in gaining exemption from liability to a passenger by a notice on the dashboard of the vehicle.178 In yet

further instances, the notice denying that the defendant owes a duty of care to the plaintiff has been contained in a contract entered into by the plaintiff and a third party.179 In the last-mentioned cases, agreement to the defendant’s lack of liability is assumed from the acceptance of the other terms of the contract; those entering another’s premises are generally180 presumed to have accepted the exculpation so long as reasonable notice was given of the landowner’s intentions. [page 368] This method of excluding liability is subject to strict statutory control in England. Any notice that a car driver seeks to rely on is rendered void,181 as is a notice that attempts to exclude liability for death or bodily injury arising from other causes;182 exclusion of liability for other forms of damage must satisfy a statutory test of reasonableness.183 In Australia, on the other hand, the only exercise of parliamentary control is to render void a contract, as distinct from a non-contractual notice, which purports to free the driver or owner of a motor vehicle from liability to a passenger.184 The only form of control which the common law has sought to impose is to deny effectiveness to a disclaimer of responsibility when the injured person has no ability, objectively assessed, to accept or reject the exclusion.185 This defence is different from that of voluntary assumption of risk, in that the latter requires actual knowledge of the particular risk which has eventuated and a free and untrammelled acceptance of that risk, whereas the plea currently under consideration obliges the defendant to show no more than that the plaintiff ought, by reason of the defendant’s notice, to have realised that some such risk as that which has eventuated might befall him or her.186

When the plaintiff might be deemed to have assumed the risk Suits by employees against employers

10.25 Often no express agreement exists to modify the duty relationship of the parties; nevertheless, the circumstances may be such as to deem the plaintiff to have absolved the defendant from liability for any adverse consequences of the latter’s actions. The deemed assumption of risk rule was a formidable defence in nineteenth-century cases in which workers sued employers for injuries sustained at work. The courts in effect held that, if the employee knew of the danger and continued on the job, he or she forfeited all right to compensation. The House of Lords (no doubt reflecting changing social and economic mores) radically altered the law in the landmark decision of Smith v Baker & Sons.187 In this case the plaintiff, a servant of the defendants, railway contractors, was employed in drilling holes in a rock cutting, and was aware of the danger caused by a crane continually swinging crates of stones above his head. A stone fell out of a crate and injured him. His action of negligence against the defendants was met by a plea of volenti non fit injuria. It was held that, notwithstanding the plaintiff’s knowledge of the risk, [page 369] the evidence justified a finding by the jury that he had not voluntarily undertaken it. Significantly, although the House of Lords accepted that ‘a particular consent may be inferred from a general course of conduct’,188 it was held that knowledge alone is not enough to absolve the defendant from responsibility, but that the jury must affirm ‘that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself’. Lord Watson said:189 The question which has most frequently to be considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his master’s.

This means that, for the defence to operate, it must be proved that the plaintiff has assumed not merely the risk of physical injury but also the legal risk consequent upon that injury.190 The House of Lords did not rule out the possibility of an employee assuming the risk but the criteria which it stipulated must be satisfied191 have

been interpreted with increasing stringency by courts since then. The outcome has been a series of employer–employee cases in which this defence has been negatived on the ground of the employee’s want of consent, leading to the view that ‘[a]part from cases where the injury is due to the inherently hazardous nature of the work, it is difficult to visualise any scope for the defence in the case of an employee going about his ordinary work’.192 Although early authority supported the view that, where the employment entailed obvious and necessarily incidental risks, these were incurred with the full consent of the employee, the current view is that social and economic pressures may be such that consent will not be regarded as having been freely given.193 No consent to run the legal risk (as opposed to that of physical injury) can be inferred from the mere fact that a particular occupation is dangerous. On the other hand, where the injury results from a risk that the plaintiff is not specifically engaged to incur, the maxim may, theoretically, still apply, depending on whether an implied agreement can be found to the effect that the plaintiff is to take that risk without expecting compensation: The degree of probability of injury and the presence or absence of protest by the plaintiff at the presence of the risk are in such cases material. Those are cases where the risk is one not necessarily and inevitably involved in the very nature of the work but one which could be removed or lessened by the employer, or … by the employee himself. The question … is [one] of fact.194

The cases in which the maxim has been held to apply are few. Yet where the plaintiff was susceptible, to her and her employer’s knowledge, to dermatitis, and her employer found work for her which entailed slight risk of the disease, the employer was not liable for her then contracting it. The employer was not obliged either to dismiss her [page 370] or to make the work safe for her with her particular susceptibility; she took the risk and could not then complain.195 In Imperial Chemical Industries Ltd v Shatwell 196 the House of Lords expressly supported the general principle that assumption of risk will not ordinarily defeat a claim by an employee against an employer. At the same time, it recognised that where the claim rested on vicarious liability for joint and flagrant disobedience of a safety rule by the plaintiff and his wrongdoing fellow employee, and where the latter

was not the superior of the plaintiff or one whose orders the plaintiff was bound to obey, the employer would have the defence available against the plaintiff employee.

Participation in sporting activities 10.26 Participation in sporting activities poses a particular dilemma. On the one hand, it is undoubtedly the case that mere participation, even in a dangerous sport, does not necessarily equate with acceptance of each and every associated risk.197 Clearly, participants are entitled to rely on all reasonable care being taken by the organisers, including compliance with safety standards laid down in the by-laws of the sport’s governing body.198 Nor may the defence of volenti be invoked when participants are injured by other players in violation of generally accepted rules of the sport. In Rootes v Shelton, Barwick CJ referred to risks which are inherent in a sport which may be regarded as accepted by participants.199 On the basis that inherent risks are those which cannot be eliminated by the exercise of reasonable care, it may on the facts be possible to infer acceptance in situations where the participant has knowledge of the risk. Nevertheless, it has been pointed out that an inherent risk is not necessarily an obvious one, that is, absent evidence to the contrary it is unsafe to assume that it is known to everyone, including the participant200 or, even if known, that the participant has accepted it.201 In other cases it has been held that the obviousness of the danger, objectively considered, will not of itself be sufficient to establish the defence, absent a full appreciation on the part of the plaintiff that the danger will materialise.202 It is possibly these factors that have prompted the courts in recent cases to skirt the question of voluntary assumption of risk and to approach the situation from the perspective of whether the defendant owes a duty of care to the plaintiff,203 and, if so, whether it has been breached.204 [page 371]

10.27 Supplementing this judicial attitude of dealing with the risks of sporting activities as questions of duty and breach rather than of volenti is a

network of legislation205 which provides both for the imposition of liability on providers of services generally, and for the limitation of the liability of the providers of recreational services. Uniformly throughout Australia, the Australian Consumer Law 206 provides, in s 60, that a person who supplies, in trade or commerce, services of any kind to a consumer is subject to a statutory guarantee that the services will be provided with due care and skill. Furthermore, by virtue of s 236 of that Law, the remedies for breach of the guarantee are available to anyone who has suffered loss or damage by reason of that breach — there is no need for any contractual or tortious nexus between the supply of the services and the resulting loss or damage. And the Australian Consumer Law s 64 provides that a term in any contract which purports to exclude, restrict or modify the application of (among other things) the guarantee imposed by s 60 is void. However, a provider of recreational services — either by a corporation207 anywhere in Australia or by an individual in South Australia or Victoria208 — is not necessarily subject to the full rigour of this non-excludable guarantee of due care and skill. By virtue of the Competition and Consumer Act 2010 (Cth) s 139A, the Fair Trading Act 1987 (SA) s 42 and the Fair Trading Act 1999 (Vic) s 32N, a term of a contract for the supply of recreational services to a consumer is not void under the Australian Consumer Law s 64 only because it excludes, restricts or modifies the application of the Australian Consumer Law s 60. But such an exclusion, restriction or modification is not effective insofar as it attempts to apply to liability for significant personal injury caused by the supplier’s own reckless conduct.209 In New South Wales and Western Australia,210 the provider of recreational services does not owe the duty of care which would otherwise be placed on that person by the materialisation of a reasonably foreseeable risk when either the injured person has engaged in a dangerous recreational activity (as defined in the legislation), or when the defendant has provided a warning of that risk. In applying this legislation, it has been held that neither touch football211 nor dolphin watching212 are dangerous recreational activities for these purposes, so that the organisers of those recreations [page 372]

remain liable for injuries caused by an employee’s negligence,213 whereas diving from an enhanced height into water of uncertain depth is a dangerous recreational activity,214 as is going on a kangaroo shoot,215 partaking in skateboarding216 or riding a BMX bicycle at a skatepark.217 Further protection is given to providers of recreational services in these two states by a provision under which a term of a contract for the supply of recreational services may exclude, restrict or modify any liability which results from a breach of an express or implied warranty that the services will be provided with reasonable care and skill.218 In Western Australia, but not in New South Wales, such an exclusion clause does not avail a defendant against whom it is established that the harm resulted from a reckless disregard for the consequences of his or her conduct.219 The New South Wales provision, in so far as it purports to apply to corporate providers of recreational services, may well be inconsistent with the Competition and Consumer Act 2010 (Cth) s 139A in that it extends to liability for reckless conduct and defines recreational services more broadly than is the case under s 139A. In Insight Vacations Pty Ltd v Young,220 the High Court held s 5N of the New South Wales Act to be inconsistent with the Trade Practices Act 1974 (Cth) s 68B (the forerunner of s 139A), and it is assumed that the same conclusion would apply in relation to the current form of the Commonweallth legislation. The legislation in Queensland and Tasmania is much briefer, providing merely that a person ‘is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering the harm’, whether or not the injured person was aware of that risk.221 In South Australia,222 providers of recreational services may submit to the relevant minister a code of practice for a particular kind of recreational activity; once that code is registered, the provider may modify the duty of care otherwise owed to the participant, either by means of a contract between the parties or, in the case of services provided gratuitously, by a prominent notice. Any such modification of the duty of care must comply with the terms of the registered code of practice. [page 373]

Drunk or inexperienced drivers 10.28 Reference has been made in 10.22 to Insurance Commissioner v Joyce 223 and Roggenkamp v Bennett,224 in which the High Court took the view that if a passenger in a car suffered injury at the hands of its drunken driver, the passenger’s claim for compensation may be met indifferently by a plea of volenti or the defence that the driver had committed no breach of duty. But since those cases were decided, there has been a marked change in judicial attitude. At that time, contributory negligence was also a complete defence, so that it would have made no practical difference for the defendant to have relied on it rather than volenti or no breach of duty. Since the advent of the apportionment legislation, the courts have been much more inclined to support the defence of contributory negligence instead of volenti, to the extent that, in recent cases of a passenger suing a drunk driver, volenti has been described as defence which has ‘seldom succeeded’225 and is an ‘outworn maxim’226 or ‘practically a dead letter’.227 The reason for this shift is not hard to find: contributory negligence apportions the responsibility between the parties in the light of the causative influence of each, whereas a successful defence of voluntary assumption of risk will ‘excuse the defendant from the foreseeable consequences of his conduct, notwithstanding that that conduct remains a cause, and in many cases the only or a substantial cause, of the plaintiff’s injuries’.228 These judicial views have been reinforced by legislation in New South Wales, which abrogates the defence of volenti in respect of any motor accident and replaces it with a presumption of contributory negligence,229 and in South Australia and the Australian Capital Territory, which prohibits a drunk driver from raising the defence of volenti against a passenger in the car, but which also raises a presumption of contributory negligence against the passenger.230 Furthermore, a finding of no breach of duty has faced difficulties in application. It has been regarded as unreal to embark on an inquiry as to whether the driver’s intoxication, and the passenger’s awareness thereof, was such as to create the special and exceptional circumstances necessary to transform the content of the driver’s duty.231

Scope of risk

10.29 It is important for the defendant to define the precise risk that the plaintiff is alleged to have run, for it must be shown that the plaintiff consented not only to some risk of injury but also to that particular risk which culminated in injury. [page 374] This principle is illustrated by Beck v Mercantile Mutual Insurance Co Ltd 232 where it was held that although the plaintiff, a passenger riding pillion on a motorcycle, may have accepted the risk associated with the lack of a headlight, he was still entitled to rely upon the rider using due care in other respects. Accordingly, his claim was not barred by the defence of volenti non fit injuria when he was injured in a head-on collision with another vehicle caused by the rider’s failure to keep to the left-hand side of the road.233

Knowledge and appreciation 10.30 Mere perception of the existence of a danger will not, of itself, establish the defence of volenti — the defendant must also prove that the plaintiff fully comprehended the extent of the risk.234 Many drink-driving cases, in particular, founder on this point. In O’Shea v Permanent Trustee Co of New South Wales Ltd,235 for example, the Full Court was not prepared to disturb a finding that the plaintiff was not volens where, knowing that the driver’s capacity had to some extent been impaired by the imbibing of alcohol, he nevertheless accepted a lift in the belief that the driver was quite capable of driving safely. Moreover, where the plaintiff’s judgment has also been adversely affected by drink to the extent of being incapable of appreciating the full extent of the risk, the defence of volenti is unlikely to succeed, because the courts will not impute actual knowledge of the danger to a passenger merely on the basis that he or she ought to have known of it.236 The only circumstance where a finding of voluntary assumption of risk might be made where both plaintiff and defendant are affected by alcohol is if their joint enterprise in the consumption of liquor raises an inference that the plaintiff freely accepted the risks inherent therein.237 More usually the fact that the plaintiff is also

inebriated will demonstrate a failure to take care for his or her own safety and a consequent apportionment of the damages.238 The mere fact that a party claims not to have had a full appreciation of the risk is not, of course, determinative of the matter. The court is entitled to examine the evidence and to infer in an appropriate case whether the evidence justifies a finding of actual knowledge and full appreciation. Imperial Chemical Industries Ltd [page 375] v Shatwell239 may be explained on this basis. Given the plaintiff’s expertise and experience coupled with the knowledge that the practice was forbidden both by his employer and by statute, it was not open to him to plead less than full appreciation of the risk he had undertaken to run.

Voluntary act 10.31 Not only must the plaintiff consent to the risk, but he or she must also assume the risk freely and voluntarily.240 The logic behind the defence has been explained in the following terms:241 if a person is fully aware of the risk, which is one that no sensible person would take, but which the plaintiff takes without being under any form of compulsion, it is not unreasonable to regard any resultant injury as his or her own fault entirely. It follows from this that any form of coercion or duress will negative the defence.242 The decisions on suits by employees constitute, in effect, judicial recognition that economic pressures negative voluntary conduct in the sense indicated by Scott LJ in Bowater v Rowley Regis Corporation:243 For the purposes of the rule … a man cannot be said to be truly ‘willing’ unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will.244

The law in this regard reflects sound policy by acknowledging that a choice between loss of employment and loss of the right to sue is no real choice at all. The upshot is that the defence is likely to succeed only where the

employee has been paid specifically to run a particular risk245 and even then only in respect of unavoidable harm. The rescue cases (see 7.25ff) also reflect the judicial perception of behaviour which does not constitute voluntary conduct. The doctrine of assumption of risk does not apply to a person who has: [page 376] … under an exigency246 caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger …247

In many of these cases the rescuer could be said to have been acting in the course of discharging the duties of employment248 and in that sense was not free to choose but there is no reason to suppose that the courts might impose liability on rescuers motivated solely by a sense of civic duty;249 nor, it seems, will rescuers of property be regarded any differently.250 It may be said, too, that if the defendant places the plaintiff on the horns of a dilemma, this deprives the plaintiff of any true freedom of action with the result that a reaction is not voluntary.251 Nor will it be voluntary where the plaintiff has been exposed to the danger only because of the exigency of the situation.252 On the other hand, when a grossly intoxicated club member sought to sue the licensee of the club where she had been drinking for injuries incurred when she was struck by a car after leaving the club, a majority of the High Court held that the act of drinking until intoxicated is generally to be regarded as a voluntary, deliberate act taken by a person exercising full personal autonomy for which that person alone should carry responsibility in law.253 _______________ 1.

[1952] 2 QB 608 (CA).

2.

Ibid at 614.

3.

Ibid at 612 and 616 per Singleton and Denning LJJ, respectively; Monie v Commonwealth [2007] NSWCA 230 at [99]–[100] provides another example.

4.

Gent-Diver v Neville [1953] St R Qd 1.

5.

(1986) 4 MVR 27 (Vic FC).

6.

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 165; [1939] 3 All ER 722 at 730 (HL).

7.

(1809) 11 East 60; 103 ER 926.

8.

(1842) 10 M & W 546; 152 ER 588. Perhaps the most important of the cases following it is Radley v London & North Western Ry Co (1876) 1 App Cas 754 (HL).

9.

Especially British Columbia Electric Ry Co Ltd v Loach [1916] 1 AC 719 (PC); The Eurymedon [1938] P 41 at 49–50; 1 All ER 122 at 126 per Greer LJ (CA).

10.

Alford v Magee (1952) 85 CLR 437 at 457.

11.

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 513–14; 99 ALR 423 at 428–9 per Mason CJ, with whom Toohey and Gaudron JJ concurred; see also Teubner v Humble (1963) 108 CLR 491 at 502. For a contrary view, see Goodhart, ‘The “Last Opportunity” Rule’ (1949) 65 LQR 237 at 254–5; Keeler, ‘Alford v Magee and the Apportionment Legislation’ (1967) 41 ALJ 148; Kammerman v Baster (1981) 28 SASR 571 at 580–1 per Wells J.

12.

Stapley v Gypsum Mines Ltd [1953] AC 663 at 677; 2 All ER 478 at 483 (HL).

13.

[1922] 1 AC 129 at 144; the House of Lords was applying Admiralty law, which had long recognised and adopted principles of apportionment.

14.

[1952] 2 QB 608 at 616 (CA); see 10.4 for the facts. Cf St George v Home Office [2008] 4 All ER 1039 (CA) at [51], [56]: plaintiff’s ‘fault’ in becoming addicted to drugs and alcohol as a teenager was held to be so remote in time, place and circumstance that it should be viewed as mere history, rather than a potent cause of his brain injury suffered after falling some years later, whilst in prison, from a top bunk bed as a consequence of a seizure brought on by withdrawal symptoms.

15.

Similar logic applies mutatis mutandis when the plaintiff’s negligent act is later in time: Commonwealth v McLean (1996) 41 NSWLR 389 at 398.

16.

[1949] 2 KB 291 at 317; 1 All ER 620 at 628 (CA).

17.

And see Viscount Simon in Boy Andrew (Owners) v St Rognvald (Owners) [1948] AC 140 at 149 (HL): ‘The negligence of the donkey-owner was therefore a fault not contributing to the collision: it was merely a sine qua non’. Compare Barrett v Ministry of Defence [1995] 3 All ER 87 at 96 per Beldam LJ (CA) (although plaintiff’s negligence preceded that of defendant, it was a continuing fault and hence contributory to the harm).

18.

Cf Starke J in Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 454:‘Whether the deceased was guilty of contributory negligence is a question of fact which must be determined upon a consideration of all the circumstances of the case’; Billerwell v Nominal Defendant [1996] ACTSC 100 at [13].

19.

Cf Tucker LJ in Henley v Cameron [1949] LJR 989 at 992–3 (CA): ‘it must always remain a question of fact whether the negligence of B is “so mixed up” with the state of things brought about by A’s negligence as to make the negligence of both contributory causes of the accident’.

20.

Alford v Magee (1952) 85 CLR 437 at 460.

21.

Swadling v Cooper [1931] AC 1 (HL). Also Stapley v Gypsum Mines Ltd [1953] AC 663; 2 All ER 478 (all judgments but especially that of Lord Reid).

22.

In Ackland v Commonwealth (2007) Aust Torts Reports 81-916 (NSWCA) at [119], for example, the issue was the alcohol abuse and binge eating of the plaintiff sailor, consequent upon him suffering post-traumatic stress disorder and severe depression after a collision at sea between the

ship he was on and another vessel. 23.

Legislation in New South Wales, South Australia and the ACT has modified these principles: see 10.8.

24.

[1976] QB 286 at 292; [1975] 3 All ER 520 at 525 (CA).

25.

In O’Connell v Jackson [1972] 1 QB 270; [1971] 3 All ER 129 (CA), referred to in Froom v Butcher, a motorcyclist’s failure to wear a crash helmet was held to amount to contributory negligence in that it contributed to his injuries, but little consideration was given to this distinction.

26.

Froom v Butcher [1976] QB 286 at 292; [1975] 3 All ER 520 at 525 (CA).

27.

It is incumbent on the defendant who seeks to rely on the plaintiff’s failure to wear a seat belt as an act of contributory negligence to lead precise evidence on the question of how wearing a seat belt would have made a difference: Hoare v Rudd (1989) 9 MVR 229 at 234 per Meagher JA (NSWCA); Hannan v MacLean (1989) 9 MVR 219 at 226 per Wright J (Tas SC). In the ordinary case it should be sufficient to show that wearing a seat belt was likely to or would probably have reduced the plaintiff’s injury: per Cosgrove J in Smedley v Smedley (1984) Tas R 49 at 51; Wright J in Eaves v Huon Valley Council [1998] Tas SC 66.

28.

[1984] 1 Qd R 592.

29.

Ibid at 592–3.

30.

Froom v Butcher [1976] QB 286 at 296; [1975] 3 All ER 520 at 528.

31.

Bull v Batten (1987) 5 MVR 341 at 344 per Carter J (Qld FC); and see Ferrett v Worsley (1993) 61 SASR 234 (FC), in which the majority differed from the dissenting judge in assessing the proper percentage of reduction in a seat-belt case. Lord Denning’s approach has, however, been upheld by UK courts: eg, Stanton v Collinson [2010] EWCA Civ 81 at [26]; Hughes v Williams [2012] EWHC 1078 (QB) at [81], both courts also noting with approval the proposition that, absent something exceptional, there should be no reduction in a case where the injury would not have been reduced ‘to a considerable extent’ by the seat belt.

32.

The subsection also requires a finding of contributory negligence where the injured person has been convicted of an offence, in relation to the accident, of driving with a greater than prescribed concentration of alcohol in the blood, or where the injured person was at the time a voluntary passenger in the car and the driver was noticeably affected by alcohol or a drug.

33.

Nicholson v Nicholson (1994) 35 NSWLR 308 (CA).

34.

Barnard v Towill (1998) 72 SASR 24; Short v Wenham [2002] SASC 369 affirms that the defendant bears the onus of proving that the proper use of a seat belt would have reduced the severity of the plaintiff’s injuries (at [25]).

35.

[1968] VR 183 at 188 per Adam J.

36.

[1951] AC 601 at 611; 2 All ER 448 at 450 per Viscount Simon (PC); Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570–1 per Mason J; cf Jones v Livox Quarries Ltd [1952] 2 QB 608 at 615 per Denning LJ.

37.

Consistent with this, the court in Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375 at 384–5 held that, in the case of joint tortfeasors, one being the plaintiff’s employer, the other a stranger, the test whether the plaintiff is contributorily negligent is the same. See, too, Dowthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72 at [22].

38.

(2005) 223 CLR 422; 221 ALR 711 at [220] per Callinan and Heydon JJ, the reference to

‘obligations’ being to social security and the like. Cited with approval in Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815 (NSWCA) at [68]–[70], the court there emphasising the importance of personal responsibility and its consistency with the Civil Liability Act 2002 (NSW) s 5R(1); see also Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874 (NSWCA) at [10]. 39.

State Rail Authority of NSW v Barnes [2001] NSWCA 133 at [30]. Such decisions cannot therefore be regarded as establishing legal principles: SS Heranger (Owners) v SS Diamond (Owners) [1939] AC 94 at 101 (HL); an appeal court is accordingly as free to infer contributory negligence and thereby to reverse the trial judge as it is to infer negligence: Hicks v British Transport Commission [1958] 2 All ER 39 (CA).

40.

Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [32] per McHugh J, citing Lord Macmillan in Glasgow Corp v Muir [1943] AC 448 at 457;. cf Calvert v William Hill Credit Ltd [2009] Ch 330 (CA) at [71] where the court appeared to differentiate between a pathological gambler and one who was able to exercise some measure of control over his habit. In South Australia v Ellis [2008] WASCA 200, the plaintiff’s addiction to or dependence on nicotine was held to be a personal idiosyncrasy, which should accordingly be disregarded.

41.

As stated by Basten J in Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [47]: ‘There is no precise line to be drawn between mere inadvertence, consistent with taking reasonable care for one’s own safety, and the kind of carelessness which can properly reduce the degree of liability imposed on a defendant.’ Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202 is illustrative of the difficulty in deciding this issue.

42.

For example,, joining in a pub brawl: Quintano v BW Rose Pty Ltd [2009] NSWSC 446 at [82]ff.

43.

Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [46] per McHugh J and [162] per Hayne J; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452 at [37] per curiam.

44.

Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36 per Windeyer J. Kitto, Menzies and Owen JJ delivered a joint judgment to similar effect; TAL Structural Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545 at 552 (FC).

45.

Kakouris v Gibbs Burge & Co Pty Ltd [1970] VR 502 at 508 (FC); aff’d on appeal: (1970) 44 ALJR 384. As stated in Moller v Trollope Silverwood & Beck Pty Ltd [2004] VSCA 22 at [13]: many acts of contributory negligence are the products of misjudgment.

46.

McLean v Tedman (1984) 155 CLR 306 at 315; 56 ALR 359 at 365–6; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 531 (HCA).

47.

Commr for Railways v Ruprecht (1979) 142 CLR 563; 25 ALR 481 (work took place in a shunting yard).

48.

Czatyrko v Edith Cowan University (2005) 79 ALJR 839; 214 ALR 349 at [18] per curiam; Syd Matthews & Co Pty Ltd v Cavanagh [2005] WASCA 178 at [55].

49.

Per Lord du Parcq in Grant v Sun Shipping Co Ltd [1948] AC 549 at 567; 2 All ER 238 at 247 (HL).

50.

For example, Bradbury v Henshall (1987) 5 MVR 248 (Qld FC).

51.

(1979) 26 ALR 235 at 240 (HCA).

52.

Russell v Craddock [1985] 1 Qd R 377 at 379 per Andrews SPJ (FC).

53.

Henderson v Public Transport Commission (NSW) (1981) 37 ALR 29 at 34.

54.

Sibley v Kais (1967) 118 CLR 424 at 427.

55.

[1948] AC 549 at 567; 2 All ER 238 at 247 per Lord du Parcq (HL).

56.

(1999) 197 CLR 1; 161 ALR 155 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [30], referring to the statement of Jordan CJ in Trompp v Liddle (1941) 41 SR (NSW) 108 at 109. See, too, Dos Santos v C Morris Painting & Decorating [2006] NSWCA 54.

57.

As to the responsibility of passengers where the vehicle is being driven too fast, see Farrell v Farrell [2009] NSWSC 1122.

58.

See Karamalis v Commr of South Australian Railways (1977) 15 ALR 629 at 633 per Stephen and Aickin JJ (HCA).

59.

Per Napier CJ in Municipal Tramways Trust v Ashby [1951] SASR 61 at 64, approved by the Full Court of South Australia in Tea Tree Gully City Council v Doyle (1986) 4 MVR 63 at 68.

60.

Kammerman v Baster (1981) 28 SASR 571 at 576 per Wells J.

61.

In Bullock v Miller (1987) 5 MVR 55 (Tas SC), a child cyclist of five and a half years run down by a motor car was held 10 per cent responsible for his injuries; similarly, Charles v Zadow (1981) 28 SASR 492 at 495 where White J stated that a six and a half-year-old child had to accept some responsibility for his part in a traffic accident. In Speirs v Gorman [1966] NZLR 897 the court accepted that there is no age below which, as a matter of law, it can be said that a child is incapable of contributory negligence.

62.

For example, Berzins v Lulic (1986) 41 SASR 306 at 311 (30 per cent reduction).

63.

(1966) 115 CLR 199.

64.

Ibid at 229 per Owen J; also McTiernan ACJ at 205, Kitto J at 215.

65.

For example, Kelly v Bega Valley County Council (CA(NSW), 13 September 1982, unreported); Bullock v Miller (1987) 5 MVR 55 at 59 per Underwood J (Tas SC); Chan v Fong (1973) 5 SASR 1 at 5–6 per Walters J; McDonnell v Darwin City Council (1997) 118 NTR 9 at 26. In Mullin v Richards [1998] 1 All ER 920 at 929, Hutchison LJ commented that the approach in McHale v Watson has ‘the advantage of obvious, indeed irrefutable, logic’.

66.

Although in practice, the courts tend to place most emphasis on the age of the child, see, eg, Doubleday v Kelly [2005] NSWCA 151 at [24]ff; Waverley Council v Ferreira [2005] NSWCA 418 at [82]ff.

67.

(1977) 17 SASR 456 at 458–9. Of Bray CJ’s view in Cirjak v Todd (1977) 17 SASR 316 that a child of 4 years 11 months was too young to be capable of contributory negligence in the eyes of the law, Bright J commented on the enormous difficulties occasioned by an attempt to impute negligence to such a young child. And see Joseph v Swallow and Ariell Pty Ltd (1933) 49 CLR 578.

68.

Bullock v Miller (1987) 5 MVR 55 at 60 per Underwood J (Tas SC). In Edson v Roads & Traffic Authority (NSW) (2006) 65 NSWLR 453 (CA) the court took into account the plaintiff’s age (13), as well as her knowledge of, and the obviousness of, the risk (crossing a freeway at night). As to the road sense expected of a 16-year-old pedestrian, see Chotiputhsilpa v Waterhouse [2005] NSWCA 295 at [92].

69.

The difficulties in assessing these factors is illustrated by the successive judgments in Mobbs v Kain, culminating in the decision at [2009] NSWCA 301.

70.

Chynoweth v Anzil (SAFC, 23 October 1981, unreported). See cases discussed in Toropdar v D [2009] EWHC 567 (QB), especially at [45], [46].

71.

Guerin v Rossiter (1984) 37 SASR 312 at 318 per O’Loughlin J.

72.

For example, Hodder v Town of Port Hedland [2011] WADC 145 at [350]ff, [356].

73.

For example, Russell v Rail Infrastructure Corp [2007] NSWSC 402; Town of Port Hedland v Hodder (No 2) [2012] WASCA 212 at [227], [232], [259] per Martin CJ. Acknowledging, however, the difficulties inherent in taking intellectual impairment into account, the judge noted that that issue was best left for determination in a case where it was critical to the outcome.

74.

See, eg, observations of McHugh J in Joslyn v Berryman (2003) 214 CLR 552; 189 ALR 137 at [32]ff; and of McLure P and Murphy JA in Town of Port Hedland v Hodder (No 2) [2012] WASCA 212.

75.

For example, Carrier v Bonham [2002] 1 Qd R 474 at [28]–[33] (CA).

76.

See, eg, O’Neill v Chisholm (1972) 47 ALJR 1.

77.

Insurance Commr v Joyce (1948) 77 CLR 39 at 60 per Latham CJ; Sloan v Kirby (1979) 20 SASR 263; cf Banovic v Perkovic (1982) 30 SASR 34 (FC) (driver’s conduct did not betray his inebriated state, hence the passenger was held not contributorily negligent) a view that has been criticised in Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [36] per McHugh J and at [149] per Kirby J.

78.

As to what constitutes contributory negligence for the purposes of this provision, see Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137.

79.

(1948) 77 CLR 39 at 46 per Latham CJ. The Civil Liability Act 2002 (NSW) s 50(3), Civil Liability Act 1936 (SA) s 47(1), Civil Liability Act 2002 (Tas) s 5(1) and Civil Law (Wrongs) Act 2002 (ACT) s 95(1) presume in such a case that the passenger is contributorily negligent. In New South Wales and South Australia the damages are required to be reduced by at least 25 per cent, whereas in Tasmania the intoxication raises a presumption that the damages are to be reduced by 25 per cent. Cf s 14G(2) of the Wrongs Act 1958 (Vic), which requires only that the court must consider whether the plaintiff was intoxicated.

80.

Insurance Commr v Joyce (1948) 77 CLR 39 at 47; see also Morton v Knight [1990] 2 Qd R 419; Mendola v Warren (1993) Aust Torts Reports 81-240 (ACTFC); Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [36] per McHugh J, at [149] per Kirby J.

81.

(1981) 27 SASR 301 at 314 (FC) (varied on different grounds (1982) 41 ALR 597 (HCA)). Similarly, per Fryberg J in French v QBE Insurances (Australia) Pty Ltd (2011) 58 MVR 214 at [189] that ‘contributory negligence does not equate with moral delinquincy’.

82.

As happened, eg, in Roggenkamp v Bennett (1950) 80 CLR 292.

83.

For example, Duncan v Bell [1967] Qd R 425; Bolton v Pangallo (1987) 5 MVR 29 (Fed Ct, FC); Spence v Dimasi (1987) 6 MVR 231 (SASC).

84.

See on this point McPherson v Whitfield [1996] 1 Qd R 474 at 478 per Macrossan CJ, at 483 per Lee J, but cf the criticism of that decision in Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [36] per McHugh J, at [149] per Kirby J.

85.

Mackenzie v Nominal Defendant [2005] NSWCA 180 at [110].

86.

But see Spicer v Coppins (1991) 56 SASR 175 (FC) in which, despite the parties having agreed that the defendant would remain sober, he failed to keep his word; the plaintiff was nevertheless held contributorily negligent, as his friendship with the defendant should have led him to realise the likelihood of the defendant’s becoming inebriated. See also Johnstone v Whitten [1997] ACTSC 89.

87.

Insurance Commr v Joyce (1948) 77 CLR 39 at 60.

88.

For accidents at sea, it is known as the rule in The Bywell Castle (1879) 4 PD 219.

89.

Swadling v Cooper [1931] AC 1 at 9 per Viscount Hailsham (HL); United Uranium NL v Fisher [1965] ALR 99 (HCA).

90.

(1973) 128 CLR 99.

91.

Ibid at 111.

92.

(1816) 1 Stark 493 at 495; 171 ER 540 at 541. (Passenger in coach, reasonably believing it was about to overturn through the defendant’s negligent driving, jumped off, breaking his leg. The coach did not overturn. No contributory negligence.)

93.

The doctrine does not apply when the danger is of the plaintiff’s own making: see Municipal Tramways Trust v Ashby [1951] SASR 61. In Hirst v Nominal Defendant [2005] 2 Qd R 133 at [32]ff in issue was a decision by a police driver to continue a high speed pursuit of another vehicle.

94.

For example, Shelley v Shelley [1971] SASR 430 (FC) (plaintiff passenger grabbed the wheel of a car when a tyre blew out; no contributory negligence); Ferrett v Worsley (1993) 61 SASR 234 at 240–1 per Debelle J (FC) (plaintiff faced with choice of leaving defendant’s car, when it stopped at a remote location, or remaining despite defendant’s intoxication; held not contributorily negligent in remaining).

95.

[1968] SASR 367 at 369 per Bray CJ.

96.

Antonow v Leane (1989) 53 SASR 60 at 65 per Jacobs J, at 81 per Matheson J, contra at 70–1 per White J (FC).

97.

[1924] 1 KB 548.

98.

The question of identification has been discussed by MacIntyre, ‘The Rationale of Imputed Negligence’ (1943–44) 5 U Tor LJ 368.

99.

Chaplin v Hawes (1828) 3 Car & P 554; 172 ER 543.

100. Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 3; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 15(2). Similar legislation in SA, Tas and the ACT has now been repealed. 101. AWA Ltd v Daniels (1992) 7 ACSR 759 at 851–3 per Rogers J (NSWSC), aff’d (1995) 37 NSWLR 438 at 570 per Clarke and Sheller JJA (CA); and see Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30 at 78 per Thomas J. 102. Morton v Douglas Homes Ltd [1984] 2 NZLR 548 at 581 per Hardie Boys J. 103. AWA Ltd v Daniels (1992) 7 ACSR 759 at 852 per Rogers J (NSW SC). 104. [2010] NZCA 65 at [81], [82], [144], [146]: the client’s remedy is against the solicitor. 105. Pennell v O’Callaghan [1954] VLR 320; Manawatu County v Rowe [1956] NZLR 78; Doyle v Pick [1965] WAR 95; and see Unsworth v Commr for Railways (1958) 101 CLR 73 at 85 per Fullagar J. 106. Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311 at 317 per Fox J (ACTSC). 107. The notion that the passenger in a vehicle has imputed to him or her the contributory negligence of the driver (Thorogood v Bryan (1849) 8 CB 115; 137 ER 452) was rejected in Mills v Armstrong; The Bernina (1888) 13 App Cas 7 (HL), and the view that the contributory

negligence of an adult was imputed to a child in the adult’s care at the time (Waite v North Eastern Railway Co (1858) 1 EB & E 719; 120 ER 679; Russell v Jorgenson (1909) 9 SR (NSW) 164 (FC)) was rejected in Oliver v Birmingham & Midland Motor Omnibus Co Ltd [1933] 1 KB 35 (Div Ct). 108. Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1); Law Reform Act 1995 (Qld) s 10; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7(1) and (2); Wrongs Act 1954 (Tas) s 4(1); Wrongs Act 1958 (Vic) s 26(1); Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 4(1); Civil Law (Wrongs) Act 2002 (ACT) s 102; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 16(1); Contributory Negligence Act 1947 (NZ) s 3(1). 109. (1999) 197 CLR 1; 161 ALR 155. 110. As to whether the legislation applies to claims for breach of statutory duty, see 16.36–16.37. 111. See, eg, Balnaves v Smith [2008] QSC 76 at [11], [13], [14]; Beer v Australand Corp (Qld) Pty Ltd [2010] QSC 369 at [11] and cases cited therein. 112. In Spotless Services Australia Ltd v Herbath (2009) 26 VR 373 (CA) at [24], [25], Spotless, having abandoned its plea of contributory negligence and conducted its case on that basis was held not to be able to ‘take the benefit’ of the finding of Herbath’s contributory negligence as against the second defendant. As to whether a plea of contributory negligence may be raised on an assessment of damages, ie, after liability has been determined, see Lunnun v Singh [1999] EWCA Civ 1736. 113. (1983) 33 SASR 377 (FC); see also Fookes v Slaytor [1979] 1 All ER 137 (CA). Moreover, in Vail v Formato (1989) 10 MVR 12 at 13, King CJ of the SA Supreme Court held that the legislation ‘clearly contemplates an apportionment of responsibility as between the parties to the action’ (emphasis added); accordingly, the court set aside the decision of the trial judge which had included an apportionment of the liability of a third party who was not a party to the action at all. 114. [1976] VR 208 (FC). 115. Winter v Bennett [1956] VLR 612 at 627–8 (FC). 116. See, eg, AWA Ltd v Daniels (1992) 7 ACSR 759 (NSWSC), aff’d (1995) 37 NSWLR 438 (CA); see further 13.41. 117. See, eg, March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 512; 99 ALR 423 at 427–8 per Mason CJ. 118. (1956) 96 CLR 10 at 16. 119. The New Zealand Court of Appeal in O’Hagan v Body Corporate 189855 [2010] NZCA 65 at [67] noted that, while the Australian test had ‘obvious appeal’ it was unnecessary to choose between them because, in the case under consideration, they led to the same result. 120. Winter v Bennett [1956] VLR 612 at 623 (FC); Nance v British Columbia Electric Railway Co [1951] AC 601 at 612; 2 All ER 448 at 450 (PC). 121. [2001] AC 360; [1999] 3 All ER 897. 122. See, too, Corr v IBC Vehicles Ltd [2008] 1 AC 884; 2 All ER 943. The situation may be different where the prisoner is not of sound mind: Kirkham v Chief Constable of the Greater Manchester Police [1989] 3 All ER 882. 123. (1999) 197 CLR 1; 161 ALR 155 at [29]. The facts in this case did not involve deliberate acts on

the part of the plaintiff but a situation in which a firm of solicitors negligently failed to advise its client as to the legal implications of accepting a trusteeship. 124. For a comparison of this aspect of the case with that of Reeves’ case, see Davis and Knowler, ‘Astley v Austrust Ltd, Down But Not Out: Contributory Negligence, Contract, Statute and Common Law’ (1999) 23 MULR 795 at 797ff. 125. Astley’s case (1999) 197 CLR 1; 161 ALR 155 at [30]. 126. Pennington v Norris (1956) 96 CLR 10 at 15–16; Watt v Bretag (1982) 41 ALR 597 at 599 (HCA). 127. Appellate courts are reluctant to interfere with an assessment of responsibility unless the judge or jury has acted upon an error of fact or law or the apportionment is manifestly erroneous or unjust: see, eg, Bolton v Pangallo (1987) 5 MVR 29 at 34 per Gallop J (Fed Ct, FC); Phillis v Daly (1988) 15 NSWLR 65 at 75 per Mahoney JA, at 78 per McHugh JA (CA); Lobb v Ellis (1989) 10 MVR 88 at 91 per Legoe J (SAFC); Lacanale v Rudko [2001] SASC 10 at [4]; Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 at [45]; Australian Capital Territory v Badcock (1999) 169 ALR 585 at 589; Richardson v Sunraysia Institute of TAFE [2001] VSCA 170 at [23], [24]; Stevenson v Rodbourne [1998] EWCA Civ 1689; Pride Valley Foods Ltd v Hall [2001] EWCA Civ 1001 at [53]; Anikin v Sierra (2004) 211 ALR 621 at [50] per Gleeson CJ, Gummow, Kirby and Hayne JJ. 128. In Baxt and Kewley (eds), An Annual Survey of Australian Law 1982, 1983, p 249, it was noted, for example, that in Watt v Bretag (1982) 41 ALR 597, the share of responsibility attributed to the plaintiff as a result of a head-on collision at night near the crest of a hill, was 15% by two judges, 33% by one, 40% by three, and 50% by two judges. 129. Watt v Bretag (1981) 27 SASR 301 at 313 per White J (FC) (varied on appeal (1982) 41 ALR 597 (HCA)). 130. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532 (HCA), quoting British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201; 1 All ER 33 at 35 per Lord Wright (HL). 131. McPherson v Whitfield [1996] 1 Qd R 474 at 477; Bleathman v Peterson’s Industrial Paint Services [2001] TASSC 128 at [26]. 132. Pennington v Norris (1956) 96 CLR 10 at 16. 133. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532–3 citing Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; 2 All ER 478 at 486 per Lord Reid (HL); Smith v McIntyre [1958] Tas SR 36 at 44 per Burbury CJ (FC); Broadhurst v Millman [1976] VR 208 at 219 per Gowans and Menhennitt JJ (FC); Avram v Gusakoski (2006) 31 WAR 400 (CA) at [32]; Liverpool City Council v Millett (2004) 43 MVR 193 (NSWCA) at [144]. But such a comparative approach is not appropriate where the injury occurs in the context of a ‘blameless motor accident’ as defined in the Motor Accidents Compensation Act 1999 (NSW) s 7(A): Axiak v Ingram (2012) 62 MVR 59; [2012] NSWCA 311 at [83]ff. 134. Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 per Denning LJ; Browning v Hemmings London Borough of Haringey [1997] EWCA Civ 1972; Melleney v Wainwright [1997] EWCA Civ 2884. 135. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 533; reaffirmed in Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25. 136. Watt v Bretag (1982) 41 ALR 597 at 602 per Murphy J (dissenting), although no other judge entered into discussion on this point.

137. See, eg, Evers v Bennett (1982) 31 SASR 228 at 234 per Zelling J (FC); Healy v Munn (1991) 56 SASR 329 at 334 per Mullighan J; Anikin v Sierra (2004) 211 ALR 621; 79 ALJR 452 at [50]– [51] per Gleeson CJ, Gummow, Kirby and Hayne JJ; Hathaway v Thorpe [2006] NSWCA 163. But the ultimate conclusion is still one of fact, and no hard and fast rule can be stated: Teubner v Humble (1963) 108 CLR 491 at 504 per Windeyer J. 138. Neumann v The Ship ‘Pelsaert’ [1999] WASC 166 at [52]. 139. See generally Payne, ‘Reduction of Damages for Contributory Negligence’ (1955) 18 MLR 344. 140. Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 at 29–30; see also Perry v West Midlands Precision Engineering Ltd [1998] EWCA Civ 1677. 141. (1999) 197 CLR 1; 161 ALR 155. As to the application of the apportionment legislation to claims under the workers’ compensation legislation, see Hickson v Goodman Fielder Ltd (2009) 237 CLR 130; 253 ALR 405. 142. Ibid at [44], dissenting from the view of Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 583–5; 78 ALR 69 at 101–2 in favour of that of the House of Lords in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 193–4. 143. Some of which were examined in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ at [50]ff. Cf, too, a long line of decisions in the UK, especially Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488; affirmed by HL in [1989] AC 852; and in NZ, including Rowe v Turner Hopkins & Partners [1980] 2 NZLR 550; Mouat v Clark Boyce [1992] 2 NZLR 559; Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30. 144. 197 CLR 1; 161 ALR 155 at [71]. In Pilmer v Duke Group Ltd (2001) 207 CLR 165; 180 ALR 249 the High Court held that, a fortiori, the defence of contributory negligence did not operate to reduce awards of compensation for breaches of fiduciary duty. Nor does the apportionment legislation apply to cases of fraudulent misrepresentation: Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959; 1 All ER 173 (HL); see further 23.32. 145. Ibid at [49]. 146. Discussed by Davis, ‘Contributory Negligence and Breach of Contract: Astley v Austrust Ltd’ (1999) 7 TLJ 117 at 126ff; Swanton, ‘Contributory Negligence is Not a Defence to Actions for Breach of Contract in Australian Law — Astley v Austrust Ltd’ (1999) 14 JCL 251 at 260ff; Edwards, ‘Contributory Negligence Defence in Contract left Hanging’ (1999) 37 Law Soc J 55 at 57. 147. See fn 100 above; this possibility was canvassed by the majority of the High Court in Astley at [88]. 148. Letang v Ottawa Electric Ry Co [1926] AC 725 at 731 (PC), citing Osborne v London and North Western Ry Co (1888) 21 QBD 220. 149. Civil Liability Act 2002 (NSW) Pt 1A Div 4; Civil Liability Act 2003 (Qld) Pt 1 Div 3; Civil Liability Act 1936 (SA) Pt 6 Div 2; Civil Liability Act 2002 (Tas) Pt 6 Div 4; Wrongs Act 1958 (Vic) Pt X Div 4; Civil Liability Act 2002 (WA) Pt 1A Div 6. 150. Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874 at [87] per McClellan CJ at CL, with the concurrence of McColl JA and McDougall J. 151. Which may be purely financial or physical: see Dodge v Snell [2011] TASSC 19. 152. The plaintiff will not be able to rebut the presumption by claiming that ‘even though he or she was aware of the general risk of harm, he or she was not aware of all its possible manifestations, including the one that eventuated.’; Carey v Lake Macquarie City Council, above, at [90].

153. Dodge v Snell [2011] TASSC 19 at [213], [214] per Wood J. 154. Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 at [129] per Judd J 155. See generally Kidner,‘The Variable Standard of Care, Contributory Negligence and Volenti’ (1991) 11 Leg Stud 1; Hogg, ‘Guest Passengers: A Drunk Driver’s Defences’ (1994) 2 TLJ 37. 156. (1948) 77 CLR 39. 157. (1950) 80 CLR 292. 158. The effect in each case is the same: Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 at [81] per Gummow, Hayne and Kiefel JJ (Gleeson CJ, Kirby and Crennan JJ agreeing). 159. [1951] 2 KB 529; 2 All ER 320. 160. [1963] 2 QB 43; [1962] 2 All ER 978. 161. For the current approach taken to the relevance of this defence for participants in recreational activities, see 10.26ff. 162. See, eg, Rootes v Shelton (1967) 116 CLR 383. 163. (2008) 236 CLR 510; 248 ALR 647 at [86]. The court, overruling Cook v Cook (1986) 162 CLR 376, held that such a defence was no longer open to a learner-driver; on this point, see also Chadwick v Allen [2012] SADC 105 at [175]. 164. The High Court did not clearly articulate what other factors might be required to reach such a conclusion, noting merely that there was an ‘unarticulated middle step in reasoning from such knowledge to applying to the resolution of a claim in negligence a reduced standard of care by reference to some known attribute of the defendant: Imbree v McNeilly, above, at [86]. 165. See, eg, Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 10.62ff. 166. The leading case is Parker v South Eastern Ry Co (1877) 2 CPD 416; an Australian illustration is Sydney City Council v West (1965) 114 CLR 481. 167. L’Estrange v F Graucob Ltd [1934] 2 KB 394, affirmed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; 211 ALR 342. 168. See, eg, Hawkes Bay & East Coast Aero Club Inc v McLeod [1972] NZLR 289 (CA); Bright v Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 (CA); cf Unfair Contract Terms Act 1977 (UK) s 2(1), which renders void attempts to contract out of liability for causing death or bodily injury by negligence and the rather more limited circumstances in which liability for death or personal injury may be excluded in the Competition and Consumer Act 2010 (Cth) s 137C. 169. Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642; Producer Meats (North Island) Ltd v Thomas Borthwick & Sons (A’asia) Ltd [1964] NZLR 700 (CA); Graham v Royal National Agricultural & Industrial Assoc of Qld Inc [1989] 1 Qd R 624. 170. Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; 68 ALR 385. 171. For further consideration of the differing effects which exclusion clauses may have, see Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 10.62. 172. See, eg, Adler v Dickson [1955] 1 QB 158; [1954] 3 All ER 397 (CA); Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43 at 67 per Fullagar J; Midland Silicones Ltd v Scruttons Ltd [1962] AC 446; 1 All ER 1 (HL). 173. Property Law Act 1974 (Qld) s 55; Property Law Act 1969 (WA) s 11(2); Law of Property Act (NT) s 56; Contracts (Privity) Act 1982 (NZ).

174. London Drugs Ltd v Kuehne & Nagel International Ltd (1992) 97 DLR (4th) 261 at 366–7 per Iacobucci J (SCC). 175. New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154; [1974] 1 All ER 1015 (PC); Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Ltd (1981) 144 CLR 300; 30 ALR 588 (PC); Life Savers (A’asia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 (CA). 176. See generally Seddon, ‘Fault Without Liability — Exemption Clauses in Tort’ (1981) 55 ALJ 22. 177. Ashdown v Samuel Williams & Sons Ltd [1957] 1 QB 409; 1 All ER 35 (CA); White v Blackmore [1972] 2 QB 651; 3 All ER 158 (CA). 178. Buckpitt v Oates [1968] 1 All ER 1145; Bennett v Tugwell [1971] 2 QB 267; 2 All ER 248; Birch v Thomas [1972] 1 All ER 905 (CA). 179. See, eg, Hall v North Eastern Ry Co (1875) LR 10 QB 437 (CA); Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43 at 82–3 per Kitto J; Norwich City Council v Harvey [1989] 1 All ER 1180 (CA) and Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 7.37ff. 180. Cf Burnett v British Waterways Board [1973] 2 All ER 631 (CA), in which it was said that a notice was ineffective unless the plaintiff has freely accepted its terms; the decision is difficult to reconcile with all of the others on this issue: see Seddon, ‘Fault Without Liability — Exemption Clauses in Tort’ (1981) 55 ALJ 22 at 26. 181. Road Traffic Act 1972 (UK) s 148(3), subsequently repealed and replaced by Road Traffic Act 1988 (UK) s 149. 182. Unfair Contract Terms Act 1977 (UK) s 2(1); the provision applies to notices which seek to prevent liability from arising as well as to those which would exclude a remedy for negligence: Smith v Eric Bush [1990] 1 AC 831; [1989] 2 All ER 514 (HL). 183. Unfair Contract Terms Act 1977 (UK) s 2(2). 184. Motor Vehicles Act 1959 (SA) s 133; Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 26; see also Motor Accidents Compensation Act 1999 (NSW) s 140, which abrogates the defence of volenti non fit injuria but presumably does not affect the defence currently under consideration. 185. See Harris v Wyre Forest District Council [1988] QB 835 at 853; 1 All ER 691 at 702 per Kerr LJ (CA): ‘[It] would obviously be irrelevant for a driver sued in negligence [by another user of the road] to say that he had displayed a sign on the top of his car, “No liability accepted for any collision — keep out of the way”’ (rev’d on other grounds [1990] 1 AC 831; [1989] 2 All ER 514 (HL)). 186. Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 3) [1987] VR 289 at 293 per Nicholson J. 187. [1891] AC 325 (HL) expressly disapproving Thomas v Quartermaine (1887) 18 QBD 685 (CA). 188. Per Lord Halsbury LC [1891] AC 325 at 338. 189. [1891] AC 325 at 355. 190. Williams, Joint Torts and Contributory Negligence, 1951, p 308. 191. These include the nature of the risk, the worker’s connection with it, as well as other considerations which vary according to the circumstances of the case: [1891] AC 325 at 355 per

Lord Watson. 192. Tingle v JB Hinz & Sons [1970] Qd R 108 at 113–14 per D M Campbell J. Similarly Bowater v Rowley Regis Corporation [1944] KB 476 at 480–1; 1 All ER 465 at 407 per Goddard LJ (CA); Cvetkovic v Princes Holdings Pty Ltd (1989) 51 SASR 365 at 369–70 per Mitchell AJ. 193. Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 at 686; [1964] 2 All ER 999 at 1012 per Lord Pearce (HL). 194. Cianciarulo v HP Products Pty Ltd [1959] VR 170 at 172 per Sholl J. 195. Withers v Perry Chain Co Ltd [1961] 3 All ER 676 (CA); cf Paris v Stepney Borough Council [1951] AC 367; 1 All ER 42 (HL), discussed in 8.6. 196. [1965] AC 656; [1964] 2 All ER 999. 197. Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 at [14] per Gleeson CJ. 198. See, eg, Simms v Leigh Rugby Football Club Ltd [1969] 2 All ER 923 at 927 per Wrangham J; cf White v Blackmore [1972] 2 QB 651 at 663 per Lord Denning MR; Slack v Glenie [2000] EWCA Civ 145. 199. (1967) 116 CLR 383 at 386. 200. Per Hayne J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [143]. 201. Ibid per Kirby J at [125]. 202. See, eg, Wyong Shire Council v Vairy (2004) Aust Torts Reports 81-754 (NSWCA) at [309]ff (diving accidents); the issue was not raised on further appeal to the High Court: Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711. 203. As in Agar v Hyde (2000) 201 CLR 552; 173 ALR 665; see 8.28. 204. As in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145. In situations such as these contributory negligence may not be a viable option as it will not apply unless a participant has been heedless of his or her own safety. 205. For a highly critical review of some of the legislation, see Dietrich, ‘Liability for Personal Injuries from Recreational Services and the new Australian Consumer Law: Simplification and Uniformity or Still a Mess?’ (2011) 19 TLJ 55. 206. For details of the legislation by which the Australian Consumer Law was introduced into this country, see 22.1. 207. Section 131 of the Competition and Consumer Act 2010 (Cth) applies the Australian Consumer Law as a law of the Commonwealth to the conduct of corporations, but s 139A of the same Act substantially modifies the application of s 64 of the Australian Consumer Law to the conduct of corporations. 208. The Fair Trading Act 1987 (SA) s 14 and the Fair Trading Act 1999 (Vic) s 9 apply the Australian Consumer Law as a law of South Australia and Victoria respectively, but s 42 of the South Australian statute and s 32N of the Victorian statute substantially modify the application of that Law. 209. See the Competition and Consumer Act 2010 (Cth) s 139A(4); the Fair Trading Act 1987 (SA) s 42(3) and the Fair Trading Act 1999 (Vic) s 32N(3)(b) are to similar effect. 210. Civil Liability Act 2002 (NSW) Pt 1A Div 5; Civil Liability Act 2002 (WA) Pt 1A Div 4. 211. Falvo v Australian Oztag Sports Association [2006] NSWCA 17.

212. Lormine Pty Ltd v Xuereb [2006] NSWCA 200. 213. And in the Lormine case it was further held that the risk of a vessel being swamped by a rogue wave is not ‘inherent’ in the activity of dolphin watching, hence the company was liable for the injuries suffered when that risk eventuated. 214. Jaber v Rockdale City Council [2008] NSWCA 98; Great Lakes Shire Council v Dederer [2006] NSWCA 101 (and the risk of serious injury resulting therefrom was held in both cases to be an obvious one, rendering the respective councils not liable; the issue was not pursued on appeal in the latter case to the High Court, Roads & Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; 238 ALR 761). 215. Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 (but the plaintiff’s injuries did not result from the materialisation of that risk!). 216. Greater Taree City Council v Peck [2002] NSWCA 331. 217. Vreman v Albury City Council [2011] NSWCA 98. 218. Civil Liability Act 2002 (NSW) s 5N; Civil Liability Act 2002 (WA) s 5J. But these sections apply only to recreational services provided in the relevant state, no matter what the governing law of the contract is: Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; 276 ALR 497 at [35], [36]. 219. Civil Liability Act 2002 (WA) s 5J(6). 220. (2011) 243 CLR 149; 276 ALR 497. 221. Civil Liability Act 2003 (Qld) s 19; Civil Liability Act 2002 (Tas) Pt 6 Div 5. 222. Recreational Services (Limitation of Liability) Act 2002 (SA). 223. (1948) 77 CLR 39. 224. (1950) 80 CLR 292. 225. Radford v Ward (1990) 11 MVR 509 at 515 per Murphy J (Vic App Div), and see Avram v Gusakoski (2006) 31 WAR 400 at [67] per Murray AJA (CA). 226. Eaves v Huon Valley Council [1998] TASSC 66 at [10] per Wright J. 227. Suncorp Insurance & Finance Ltd v Blakeney (1993) 18 MVR 361 at 368 per Pincus JA (Qld CA); the defence has not completely disappeared, however: see Gala v Preston (1991) 172 CLR 243 at 254; 100 ALR 29 at 37 and the discussion in 10.30. 228. Whitfield v McPherson (1995) 21 MVR 18 at 23 per Lee J (Qld CA). 229. Motor Accidents Compensation Act 1999 (NSW) s 140. 230. Civil Liability Act 1936 (SA) s 47(1), (6); Civil Law (Wrongs) Act 2002 (ACT) s 96(1), (5). 231. Radford v Ward (1990) 11 MVR 509 at 517–18 per Murphy J (Vic App Div); see also Suncorp Insurance & Finance Ltd v Blakeney (1993) 18 MVR 361 at 368 per Pincus JA (Qld CA) but cf Hanson v Motor Accidents Insurance Board (1987) 6 MVR 131 (Tas SC). 232. [1961] SASR 311. 233. See also Gent-Diver v Neville [1953] St R Qd 1, the facts of which are very similar to those of Beck’s case, and Ranieri v Ranieri (1973) 7 SASR 418 (plaintiff had voluntarily accepted the risk of the defendant’s inexperience, but not of his inattention). 234. Once such proof is adduced, however, the defence of volenti is not affected by the gravity of the

plaintiff’s injury: see Ratcliff v McConnell [1999] 1 WLR 670 (CA). 235. [1971] Qd R 1; see also Suncorp Insurance & Finance Ltd v Blakeney (1993) 18 MVR 361 (Qld CA); Whitfield v McPherson (1995) 21 MVR 18 (Qld CA). 236. Insurance Commr v Joyce (1948) 77 CLR 39 at 57 per Dixon J; Banovic v Perkovic (1982) 30 SASR 34 at 37 per King CJ (FC); Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 3) [1987] VR 289 at 290–1 per Nicholson J. 237. Morris v Murray [1991] 2 QB 6; [1990] 3 All ER 801 (CA); see also Gala v Preston (1991) 172 CLR 243 at 254; 100 ALR 29 at 37. 238. See, eg, Duncan v Bell [1967] Qd R 425; Morton v Knight [1990] 2 Qd R 419; Mendola v Warren (1993) Aust Torts Reports 81-240 (ACTFC) and the discussion in 10.12. 239. [1965] AC 656; [1964] 2 All ER 999 (HL); Paltidis v The State Council of the Young Men’s Christian Assn of Victoria Inc (2006) Aust Torts Reports 81-850 at [29] per Ashley JA (Vic CA). As stated by Hayne J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [143], in the case of obvious risks, the court might conclude that such a risk was known to the plaintiff, absent evidence to the contrary; see also 10.25. 240. Where all that can be proved is that the plaintiff knew of the risk but nevertheless acted without taking it into account, the defence of volenti will not be made out: Carey v Lake Macquarie City Council [2007] NSWCA 4 at [108] per McClellan CJ. 241. Tingle v JB Hinz & Sons [1970] Qd R 108 at 113 per Campbell J; Standfield v Uhr [1964] Qd R 66; King v Commr for Railways [1971] Qd R 266. 242. See, eg, Akers v P (1986) 42 SASR 30 at 44–5 per Olsson J. In Corr v IBC Vehicles Ltd [2008] 1 AC 884; 2 All ER 943 at [18] the notion of voluntary consent was held inapplicable to the situation where a person committed suicide while suffering post-traumatic stress disorder involving severe depression. 243. [1944] KB 476 at 479; 1 All ER 465 at 465 (CA). 244. Cf Hodson LJ in Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141 at 151; 1 All ER 39 at 43 (CA), aff’d sub nom General Cleaning Contractors Ltd v Christmas [1953] AC 180; [1952] 2 All ER 1110 (HL). 245. Bowater v Rowley Regis Corporation [1944] KB 476 at 479–80; 1 All ER 465 at 466 (CA). As Scott LJ said, the worker here undertakes the risk for the sake of higher pay; cf Ogwo v Taylor [1988] AC 431 at 447; [1987] 3 All ER 961 at 965 per Lord Bridge (it would be ‘repugnant to … contemporary notions of justice’ for a firefighter, facing the inevitable risks of employment, to be met by the defence of volenti). 246. Whether such an exigency exists is a question of fact, see, eg, Morton v Tasmania [2006] TASSC 62 at [54]–[55]. 247. Haynes v G Harwood & Sons [1935] 1 KB 146 at 157 (CA) per Greer LJ citing Goodhart, ‘Rescue and Voluntary Assumption of Risk’ (1934) 5 Camb LJ 192 at 196. 248. Haynes v G Harwood & Sons [1935] 1 KB 146 (policeman); D’Urso v Sanson [1939] 4 All ER 26 (night watchman); Baker v TE Hopkins & Son Ltd [1959] 3 All ER 225 (CA) (doctor); Hirst v Nominal Defendant [2005] 2 Qd R 133 at [24] (traffic police). 249. In Ogwo v Taylor [1988] AC 431 at 447; [1987] 3 All ER 961 at 965 (HL), Lord Bridge regarded a professional firefighter and a lay person as equally entitled to invoke the principle of the rescue cases.

250. See Sylvester v GB Chapman Ltd (1935) 79 Sol Jo 777 per Lord Wright MR (although the plaintiff’s action here failed on the basis that he ‘was not rescuing anyone from imminent danger of death, nor even preventing damage to property, since there were people who could easily have done with precautions what he did’; see further 7.25, 7.27. 251. See the cases on alternative danger discussed in 10.13. 252. Insurance Commr v Joyce (1948) 77 CLR 39 at 57 per Dixon J. 253. Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52.

[page 377]

CHAPTER 11 Compensation in Personal Injury Actions1

Awards of Damages to Living Plaintiffs Introduction 11.1 A plaintiff who claims to have suffered personal injury as the result of another’s negligence is permitted to bring only one action in respect of all the damage that has been suffered up to the date of the trial and that which is likely to be suffered in the future: see 27.35. This means that damages in personal injury actions are, in the absence of statutory provisions to the contrary,2 awarded in the form of a lump sum intended to provide recompense for those past and future losses. But such a method of assessment clearly suffers from considerable inadequacies.

11.2 As with all other tort actions, the avowed aim of an award of damages for personal injury is to seek, so far as money can do it, to restore the plaintiff to the position he or she was in before the tort was committed. But this aim is confronted by two difficulties at the outset, when it is sought to be applied to a personal injury action. First, even when the victim has not been seriously injured, a part of the claim will constitute damages for pain and suffering. But clearly a sum of money cannot remove the pain that has been and will be suffered, and all that the courts seek to do is to provide fair and reasonable solace to the plaintiff for that suffering.3 Secondly, in the case of a seriously injured victim who is no longer able to earn a living, there is no means of

determining what employment he or she might have undertaken, or with what degree of financial reward, had this particular wrong not been committed.4

11.3 The further deficiencies of the common law method of assessing damages as a lump sum relate to the fact that, for the seriously injured plaintiff, a large proportion of that sum is designed to compensate for future losses. But any estimate [page 378] of those losses is fraught with obvious difficulties.5 Vital to the determination of such items as the plaintiff’s loss of future earning capacity, and the cost of future care, is the estimation of his or her life expectancy. That estimate can be based only on average figures, and cannot be related to the particular plaintiff.6 Further, the court must estimate the chances of the occurrence of other contingencies which will adversely affect the plaintiff, but for which the defendant is not responsible. However, such an estimate must necessarily result in a plaintiff being either under- or over-compensated. Suppose, for instance, that the court concludes that a particular plaintiff has a 30 percent chance of suffering a debilitating disease irrespective of the defendant’s conduct. The damages for future loss will then be reduced by 30 per cent to make due allowance for that contingency. But if the plaintiff does contract that disease, he or she will have been over-compensated, and if the disease does not eventuate, the plaintiff will have been under-compensated. The percentage by which the award is reduced merely reflects the chances of the plaintiff receiving too much or too little by way of damages.

11.4 It is no doubt partly because of the unsatisfactory nature of the common law approach to the assessment of damages for personal injury that it has been subject to statutory modification, limitation or abrogation in many of the Australian jurisdictions. A modification of the common law rules adopted in South Australia in 1967 with regard to all personal injury claims7 and in Western Australia in 1972 in relation to motor accidents8 is to permit the court to make an award by way of periodical payments. However, there are no reported cases in which this power has been availed of, and it has been suggested9 that injured persons are loath to make use of this facility because

the amount of the award may be varied on the application of either party.10 Legislative provision has subsequently been made in the other jurisdictions for the court to approve an action being settled by way of periodical payments being made to the plaintiff.11 A more fundamental change has been made by those statutes which have either abolished the right to sue an employer for damages at common law in respect of an industrial injury,12 or have limited the damages recoverable in such an action to those relating to non-pecuniary loss.13 [page 379] The respective statutes make provision for the periodical payment of compensation under administrative schemes which are referred to in Chapter 12.

11.5 The common law principles have also come under attack on a quite different ground — that the levels of awards have been increasing at a rate beyond that attributable to the normal pressures of monetary inflation. As a consequence, all the Australian jurisdictions have enacted legislation designed to limit particular items that go to make up the award, or the means of arriving at the overall sum.14 These statutory modifications will be referred to where relevant in the course of this chapter.

11.6 The courts itemise the award into the various categories of loss for which compensation is made. Such an approach is necessary, both as an aid to the predictability of an award, a factor which is crucial to the very large proportion of cases which are settled,15 and in order to assist an appellate court, should there be a review of the trial judge’s decision.16 The two principal categories of loss are pecuniary and non-pecuniary, the former being further subdivided into loss of earning capacity, the cost of medical (and similar) care and other losses that are reasonably susceptible of monetary valuation.

Pecuniary damages

Loss of earning capacity 11.7 Put in very broad terms, a plaintiff is entitled to recover for any diminution in his or her capacity to earn, to the extent to which that diminution is productive of financial loss.17 In determining the figure to be arrived at, a division is made between that part of the loss which has occurred prior to the date of trial and that which will occur thereafter; the former is part of the plaintiff’s ‘special’ damages18 and must be specially pleaded.19 Even when a claim is litigated, the victim’s ‘special’ damages for loss of earning capacity are often agreed on by the parties. They are generally computed by deducting any earnings which the plaintiff has made since the accident from those which would have been made had the pre-accident emolument continued until the trial. The figures to be used are those which are net of income tax.20 The total thus arrived at generally bears interest21 at half the prevailing commercial rates, to [page 380] allow for the fact that the loss has accrued gradually over the period,22 although in New South Wales limits are imposed on the award of such interest.23 The amount to be awarded to the plaintiff for the prospective loss of earning capacity — that is, for the period after the trial — is subject to greater difficulties of calculation, because it is based on an estimate of what may happen in the future, but is arrived at by essentially the same method as for the determination of the ‘special’ damages.

11.8 In a straightforward situation in which the victim was in full-time paid employment at the time of the accident, the court takes as its yardstick the after-tax24 earnings, together with the present value of any payments towards superannuation that the plaintiff’s employer would have made,25 as those amounts would have stood as at the date of the trial, and estimates the degree to which and the time during which he or she will not be able to realise that earning capacity.26 If the plaintiff, prior to the accident, had been in partnership with his or her spouse or other family member, the yardstick by

which the plaintiff’s lost earning capacity is measured is the amount which he or she is no longer able to contribute to the partnership; the extent to which the profits of the business had been divided between the partners is not relevant.27 If the plaintiff is seriously injured, it is assumed (in the absence of evidence to the contrary) that the plaintiff would otherwise have utilised that earning capacity until normal retiring age,28 but proof may be given that the capacity would have been exercised for longer than normal.29 The court then determines30 that lump sum which, when safely invested, will allow the victim, by drawing both on income and on capital, to receive the amount that will replace the lost stream of earnings. That lump sum may be increased (on adequate proof being advanced) to allow for the possibility that the plaintiff might otherwise have made greater use of his or her earning capacity by promotion or the acquisition of more skills;31 it may [page 381] also be reduced to make due allowance for ‘the vicissitudes of life’ — the chance32 that the plaintiff may have suffered sickness or become unemployed even had the tort not occurred;33 but outgoings in the nature of domestic assistance, not being necessary for the realisation of earning capacity, are not to be taken into account.34 The fact that the plaintiff is a young unmarried woman who might in the future have given up paid employment in order to raise a family is not a ground for reducing the award for lost earning capacity. As members of the High Court have observed,35 there are so many uncertainties inherent in seeking to assess the effect (if any) that such a course might have had on the plaintiff’s realisation of her earning capacity that it is more prudent simply to ignore this factor.

11.9 Where the victim, although capable of working full time prior to the accident, has chosen to exploit only part of that earning capacity, the court will not assess the loss on the basis of a loss of the whole of that capacity to earn. As has already been mentioned, the general principle is to provide recompense for a diminution of earning capacity to the extent to which that diminution is productive of financial harm. Hence, in such a situation as that posited, the plaintiff will receive a sum to compensate for the loss of that part of his or her earning capacity that was utilised prior to the commission of the

tort, together with an amount representing the loss of the chance to utilise the remainder of that earning capacity.36 If the plaintiff had not employed any capacity to earn, because he or she was fully engaged in raising a family, the loss suffered by reason of the incapacity to carry out those tasks is recompensed on different grounds, discussed in 11.19. If, however, the failure to employ any earning capacity arises from other causes, no damages will generally be awarded under this head.37

11.10 Where the victim is a child or teenager who had not entered the workforce at the time of the injury, compensation is still made for any loss of the future capacity to earn. It is a matter of assessing the level of remuneration that the plaintiff might reasonably have expected, had he or she not been denied the opportunity of earning by reason of the injury. Clearly, the younger the child at the time of commission of the tort, the more speculative will be the chances of his or her having eventually entered the workforce, and consequently the lower the level of the award under this head.38 [page 382]

11.11 Damages for loss of earning capacity are assessed on the basis of the plaintiff’s life expectancy immediately prior to the injury. If the injury itself has reduced that life expectancy to something less than normal retiring age, a part of the damages under this head will be referable to those ‘lost years’ . But for that part the amount of the loss will be reduced by the proportion of the earnings that the plaintiff would have spent on his or her own maintenance.39 If the plaintiff is likely to leave dependants on his or her premature death, the award of damages for the ‘lost years’ is justifiable, on the basis that it allows for a fund for their support for which they would be unable themselves to claim.40 But even if the plaintiff is a child who would not be survived by dependants, it has been observed that an award ought not to deliberately under-compensate a plaintiff because of the fear that the family will obtain a windfall benefit.41

11.12 In Victoria, the victim of a road or industrial accident is not permitted to recover damages for lost earning capacity or any other head of

pecuniary loss if the total of that loss is less than a statutorily prescribed minimum, or for such damages in excess of a maximum determined by legislation,42 in each case the limits being adjusted annually to take account of inflation, while in South Australia the victim of an accident is not to be awarded any more than the statutorily prescribed maximum.43 In the remaining jurisdictions (other than Western Australia) and in Victoria in respect of injuries suffered other than on the road or at work, the amount that may be awarded for lost earning capacity, whatever the cause of the injury, is limited to a figure based generally on no more than three times average weekly earnings,44 and the same limit is applied in Western Australia,45 but only in respect of injuries caused other than by an industrial accident.

Cost of medical and nursing care 11.13 A plaintiff is also entitled to recover the costs of medical, hospital and nursing care rendered necessary by the injury received. Expenses incurred prior to the trial are part of the ‘special’ damages, and those to be incurred in the future are capitalised in the same way as is prospective loss of earning capacity: see 11.25. The victim may expect to be compensated only for the level of care that is reasonable in all the circumstances. In the case of a seriously injured plaintiff, the issue may arise of whether the plaintiff’s needs for nursing care should be provided for in an institution, or by allowing him or her to remain at home. The question is resolved by comparing the relative costs of each alternative, and the corresponding [page 383] benefits available to the plaintiff.46 Since the cost of care in an institution is generally considerably less than the provision of such services in a private home, it is only when the latter is proved to be of substantially greater benefit to the plaintiff’s wellbeing that the cost thereof will be allowed as an item of the damages.47 Despite the additional evidence required, it is not uncommon for plaintiffs to be recompensed on the basis of their living at home or (where that is possible) independently.48

11.14 If the damages are assessed on the basis of the plaintiff being cared for in an institution, the costs on which the capital sum is based exclude that aspect of an institution’s charges as is referable to food and shelter. That proportion either will have already been included as a part of the victim’s lost earning capacity,49 or (if no award is made for lost earning capacity) is a cost which the plaintiff would have had to bear irrespective of being injured.50 But to the costs charged by the institution may be added the expense of visits there by close relatives, if they are shown to be a reasonable aspect to the plaintiff’s rehabilitation.51

11.15 Where the plaintiff has, up to the date of trial, been cared for at home, or where it is considered to be justifiable to continue to receive care at home, he or she is entitled (in the absence of statutory limitations) to receive compensation even though many of the services have been or will be provided gratuitously by family or friends. As the High Court pointed out in Griffiths v Kerkemeyer,52 the decision which finally established the propriety of recovery in this circumstance, the plaintiff is being recompensed for the reasonable need for services created by the injury, and not necessarily for the cost of their provision.53 And to the amount thus arrived at in relation to services provided up to the date of the trial, interest will, in the absence of countervailing legislation,54 be added.55 But, as with the recovery of the cost of institutional care, recompense for the provision of gratuitous services is available only when, and to the extent that, it is reasonable to do so. Thus, the plaintiff is not entitled to recover in respect of services which consist of no more than would ordinarily be provided by members of a family,56 nor in respect of those services which [page 384] exceed the bounds of that for which a defendant ought properly to be responsible,57 including therapeutic services provided free of charge by a charitable organisation.58

11.16 If damages are to include a component relating to gratuitous nursing and other services, they are generally to be valued by reference to the standard or market cost of the services that have been, and will be, rendered;

any income forgone by the family member or friend in providing that care is irrelevant.59 However, that market cost is no more than a guide to the appropriate measure of damages. Account should also be taken of the economies available to a family member, as compared with a commercial undertaking, in providing services,60 and factors such as the remoteness of a location or the lack of competition, which may have led commercial charges to exceed what is regarded as a reasonable figure.61 When the relevant amount of damages has been assessed, the plaintiff is under no duty to account to the gratuitous provider of the services.62 The fact that the person who provides the services to the plaintiff is also the defendant to the action (a situation which can often arise in a road accident) has no effect on the award of damages under this head. In Kars v Kars, the High Court stressed that the purpose of an award of damages under this head is to compensate the plaintiff for a need created by the injury, irrespective of the identity of the person who has brought about the injury.63

11.17 In all jurisdictions other than the Australian Capital Territory, the ability to claim for gratuitous services provided to the victim has been abrogated or substantially limited by legislation. In Victoria64 in respect of road and industrial accidents, the plaintiff can claim only for nursing and other services for which he or she has paid or is liable to pay.65 In South Australia,66 an injured person may recover only for gratuitous services provided by a parent, spouse or child, and even then limited in amount; in Western Australia, if the services are provided by members of the victim’s household, the amount that may be awarded in respect thereof is limited.67 In New South Wales, the Northern Territory and Tasmania (in respect of [page 385] all injuries),68 in Queensland (in respect of injuries suffered other than at work),69 and in Victoria (in respect of injuries suffered other than on the road or at work),70 although no restriction is placed on the class of persons for whose services the victim may claim, limits are placed on the amount of damages recoverable in respect of those services.

Other pecuniary losses 11.18 Loss of earning capacity and the costs of medical and nursing care are the major heads of pecuniary losses flowing from the victim’s injuries. They are not, however, the only ones which may be claimed; there is no closed list of recoverable pecuniary losses.

11.19 A head of loss which had been accepted by some intermediate courts of appeal in Australia was that suffered when a homemaker is no longer able to provide household services, and those tasks are undertaken gratuitously by other members of the family.71 The respective courts, drawing an analogy from Griffiths v Kerkemeyer,72 held that an injury to one member of a household created a need for someone else to perform the domestic duties that the injured person had previously undertaken. The fact that those duties were carried out gratuitously by other members of the family should not be taken into account in relief of the tortfeasor. However, a majority of the High Court, in CSR Ltd v Eddy,73 has held that the supposed analogy with Griffiths v Kerkemeyer cannot be sustained, and that it would be impermissible to extend the common law to allow such a head of loss, at least as measured by the market cost of the provision of such services. The furthest that the High Court was prepared to go was to say that the loss of the ability to provide household services was a factor properly to be taken into account in assessing the plaintiff’s non-pecuniary losses.74 The previous intermediate appellate court decisions were overruled and it was said that any development of the law should take place only after examination by a law reform body and acceptance by the legislature.75 Such a process had been followed previously in New South Wales and the Australian Capital Territory76 and subsequently in Queensland;77 each jurisdiction makes express provision for the payment of damages for the loss of the capacity to perform domestic services.78 [page 386]

11.20 A head of loss which has been sanctioned by the High Court is the cost of administering the award of damages. If the plaintiff is rendered incapable by the injuries of managing his or her own affairs, or is intellectually impaired by reason of some pre-existing disability, it has been

accepted that the award must necessarily be managed with professional assistance, and that the charges made for that service are properly to be included as part of the loss suffered.79 It has further been held that this head of loss should not suffer any reduction if the plaintiff were found to be contributorily negligent.80 However, in South Australia an award under this head has been abrogated by legislation.81

11.21 A plaintiff who is seriously injured may need modifications to be made to his or her home, such as ramps for wheelchair access, a swimming pool in which to exercise, or accommodation for a live-in carer. Provided that such modifications are regarded as reasonable in the circumstances, their cost may be included in the award;82 if they are such as are likely to deteriorate over the years that the plaintiff is expected to use them, no deduction should be made for the increase in capital value which they may initially represent.83 It has also been held that damages may include the capital cost of purposebuilt accommodation,84 or the capitalised value of the interest forgone by purchasing such accommodation rather than investing that part of the award in income-producing assets.85

Monetary benefits from other sources 11.22 After, and possibly as a result of, being injured, a plaintiff may receive money from a variety of sources in addition to the award of damages. Whether such benefits should be taken into account in reduction of the pecuniary damages available in accordance with the principles discussed above is a question to which the courts have given no clear answer.86 The reason lies in the fact that consideration of this issue brings into conflict two separate principles. On the one hand, it is said that a plaintiff is entitled to damages only in so far as the injury is productive of financial loss.87 But on the other hand it is felt that a tortfeasor ought not to benefit from the fact that a plaintiff has received a charitable subvention, or has had the prudence to make personal provision for possible future injury.88 [page 387] It has been re-affirmed by the High Court, in Zheng v Deju Cai,89 that the

treatment to be afforded to any particular payment depends upon the determination of whether the benefit in question was conferred on the plaintiff independently of any right or redress against others. The practical effect of the determination of that issue is that very few monetary or other90 benefits received by a plaintiff from other sources will be taken into account in reduction of damages. Thus, he or she will not have to account for moneys paid under a statutory91 or employer-funded92 pension nor an occupational disability pension,93 nor for redundancy pay received, whether or not the injury prevented any further employment,94 nor for ex gratia payments made by an employer.95 Equally, charitable payments made by others, including those made to the plaintiff to assist her in carrying out voluntary work,96 and a government disaster relief fund,97 will not be deducted. And the damages will not be reduced by the amount received under an insurance policy which the plaintiff,98 or the plaintiff’s employer,99 has taken out.

11.23 With regard to pensions, benefits or allowances paid under the Social Security Act 1991 (Cth), although the High Court held, in Redding v Lee,100 that an invalid pension was not, but an unemployment benefit was, to be taken into account in assessing the plaintiff’s ‘special’ damages, the effect of that decision has been abrogated by Pt 3.14 of the Act. By virtue of that Part, the amount of any pension or benefit paid under the Act will be recouped out of the damages paid or payable to the plaintiff. Hence the receipt of such pensions or benefits must in all cases be disregarded in the assessment of the victim’s damages, in order that he or she may be put in funds to make the recoupment required by the Act.101 The same principle applies to Medicare payments and nursing home benefits which will be recouped from any compensation payable to a recipient under the Health and Other Services (Compensation) Act 1995 (Cth). [page 388]

11.24 The only types of payment from another source which, at common law, are to be brought into account in reduction of the plaintiff’s damages are sick pay which an employer was contractually bound to pay the victim,102 ex gratia payments made by an employer who is also the tortfeasor,103 and, in New South Wales, benefits paid under the Workers Compensation (Dust

Diseases) Act 1942 (NSW).104 In those jurisdictions in which an employee has a right of action against an employer for loss arising out of an industrial injury, the workers’ compensation legislation provides for a reduction in the damages payable to the employee to the extent of the benefits paid or payable under the legislation.105

Capitalisation of the loss 11.25 Reference has been made in 11.1 to the fact that the victim’s prospective losses, although calculated on the basis of a periodic loss, are paid in the form of a lump sum. The determination of the amount of this lump sum raises a number of difficulties. If it were calculated merely by multiplying the annual assumed loss by the number of years for which that loss would be sustained, it might be thought that the victim would be overcompensated, since he or she could invest the award and have the advantage of the interest earned thereon. However, it must be borne in mind that the purpose of any interest payment is, to a large extent, to counteract the diminution in the value of the capital sum caused by monetary inflation: see 27.25. The damages award is calculated on the assumed loss to the victim, in money terms, at the time of the trial. But the monetary amount of that loss will increase as inflation and increased productivity leads to higher wage levels among the working community, and hospital and medical charges increase, in dollar amounts, due to inflation and other causes. The capital component of the damages award must therefore be augmented by a part, at least, of the interest earned on it, so that the award as a whole can continue to provide proper compensation to the victim. A further complication arises from the possibility that the interest earned on the award will be subject to income tax, to that extent reducing the ability of the victim to use those interest payments for the augmentation of the capital sum.

11.26 These factors are intended to be taken into account by the use of a ‘discount rate’ in the calculation of the award. The discount rate is the rate by which the award might be regarded as capable of augmentation if safely invested and after making due allowance for future monetary inflation, other increases in prices and the effect of taxation. If it is a rate greater than zero, it will be applied (using actuarial tables) as a notional rate of interest to be earned to reduce the amount arrived at by multiplying the assumed annual

loss by the number of years for which that loss will be sustained. [page 389] In 1981 the High Court decided, in Todorovic v Waller,106 that in future the discount rate should be three per cent.107 Each of the states (other than South Australia)108 and the Northern Territory109 have enacted legislation to increase the discount rate above that figure, in all states other than Victoria in relation to all actions for personal injury,110 while in Victoria a different discount rate applies to actions arising from motor accidents or industrial injuries from that otherwise applicable.111

Non-pecuniary damages 11.27 Non-pecuniary damages differ from pecuniary in that, while the latter attempt, however imperfectly, to compensate the plaintiff for the financial harm accruing from an accident, and are based on monetary amounts susceptible of objective proof, the former are recognised as doing no more than providing solace to the victim for the intangible effects of the accident. Non-pecuniary damages comprise pain and suffering, loss of amenity (or loss of faculty) and loss of expectation of life. While the former two are regularly assessed as one lump sum, they are dealt with separately here as each seeks to grant recompense for a different type of hurt.

Pain and suffering 11.28 This head is designed to provide relief (so far as money can do so) for the physical hurt that has been occasioned by the accident and its aftermath.112 The assessment of the damages under this head depends upon the consequences to the individual plaintiff of the accident.113 Hence, as a matter of principle the High Court sought to deny that there can be any ‘tariff’ with which a particular plaintiff’s damages can be compared.114 Nevertheless, this principle must yield on three grounds. First, by concluding, in Carson v John Fairfax & Sons Ltd,115 that a court hearing an appeal as to damages in a defamation action should take account of the scale of values

applied in assessing damages for pain and suffering, the High Court must necessarily have required the same process to operate when the damages in issue are indeed for pain and suffering.116 Secondly, there are practical concerns involved. Since the overwhelming majority of personal injury cases are settled rather than litigated, the parties’ legal advisers need to have some idea of the proper level of damages for pain and suffering. It has therefore been accepted that a judge is [page 390] entitled to be aware of the prevailing117 levels of awards in roughly comparable cases, in order to determine a range within which the particular award might fall,118 and it has been suggested that the High Court should review the relevant principles.119 And, thirdly, all legislatures have more recently either authorised courts to refer to earlier decisions in order to establish an appropriate award or provided for a scale of damages.120 But it must be remembered that the amounts decided on in previous cases can be no more than a guide, and that any particular determination must be dependent on such factors as the intensity of the pain felt by that plaintiff and its likely duration.121 Since damages for pain and suffering are assessed on a subjective basis, to provide solace for the physical hurt felt by the plaintiff, no award can be made for a victim who is rendered permanently unconscious by the accident.122

Loss of amenities 11.29 Loss of amenities is the phrase used to describe the provision of money to recompense for ‘the deprivation of the ability to participate in normal activities and thus to enjoy life to the full’.123 Under this head of loss is included such matters as the inability to engage in recreational pastimes and sport,124 or the deprivation of sexual pleasure.125 It may also include an amount in recognition of the fact that the plaintiff has lost the opportunity for cultural fulfilment.126 Although loss of amenities and pain and suffering are usually assessed

together as one sum, they are intended to relate to different aspects of the plaintiff’s loss. Pain and suffering is meant to provide solace for physical pain, past and prospective, whereas loss of amenities is intended to give recompense for the mental suffering and feelings of frustration that result from the victim’s inability to take part in [page 391] activities.127 The award of damages for loss of amenities also bears a relationship with the award for lost earning capacity. To the extent that the latter award replaces funds which the victim would have spent on pleasurable pursuits, the award for loss of amenities should be proportionately reduced.128 In the view of the High Court of Australia,129 the primary purpose of compensation under this head is the plaintiff’s realisation that the accident has deprived him or her of the opportunity to enjoy life as fully as was the case prior to the injury. Hence, if the plaintiff is rendered permanently unconscious by the accident, only a modest and conventional sum (approximately $20,000) is to be awarded.130 And, if the plaintiff’s injuries result in him or her being no more than dimly aware of that plight, the damages under this head are to be correspondingly reduced.131

Loss of expectation of life 11.30 This head of non-pecuniary damages is awarded when the plaintiff’s life expectancy has been shortened as a result of the accident. Its purpose is to seek to provide the victim with compensation (or solace) for the fact of the deprivation of part of his or her life.132 After some early differences of opinion in England as to the amount to be awarded, it was settled by the House of Lords133 that, in view of the extraordinary difficulty in seeking to put a money value on such an item as the balance of joy over sorrow, the courts should award no more than a modest and conventional sum. The High Court of Australia, in Skelton v Collins,134 accepted that approach, and agreed with their Lordships that the amount should not vary depending on the age of the victim or on the years by which his or her life has been shortened.

The only basis for a variation in the amount is that it should, by and large, take account of a fall in the value of money.135 The relevant amount, in money values at the end of the first decade of the twenty-first century, is of the order of $10,000 to $15,000.136 Since the amount is no more than a conventional award, it is available even if the plaintiff has been rendered permanently unconscious by the accident.137 [page 392]

Statutory limits on non-pecuniary damages 11.31 Although the courts in Australia have not sought to impose any upper limit on the amount of an award for non-pecuniary damages,138 the legislatures in five states have provided for limits in certain types of cases. If the injury occurred otherwise than in the course of employment,139 in New South Wales and South Australia legislation imposes both a minimum threshold of impairment before damages may be awarded, and a maximum monetary limit to those damages,140 while in Queensland a graduated scale, depending on the gravity of the plaintiff’s injury, of awards of ‘general damages’ is set by legislation,141 and in Western Australia a monetary minimum limit is imposed.142 In Victoria, the victim of a road accident or an industrial injury is not entitled to such damages if the amount that would have been awarded is less than the statutory minimum, and awards are also subject to a statutory maximum limit.143

Death 11.32 The previous section has been concerned with the award of damages for a plaintiff who is still alive at the date of trial. If death ensues within a relatively short time144 after the accident, two statutory provisions become relevant. The family of the deceased may claim, under the local equivalents of Lord Campbell’s Act, for the financial loss suffered as the result of the death, and the estate of the deceased may proceed with the cause of action which the deceased would have pursued but for the death.145

Death as a cause of action146 Historical introduction 11.33 At common law, no action in tort could be brought by third parties who suffered loss through the killing of another.147 Although the historical basis of that [page 393] rule is open to question,148 it has been accepted as correct both by the House of Lords149 and by the High Court.150 Fatal accidents became so frequent in England with the development of railways that in 1846 the parliament there passed the Fatal Accidents Act (‘Lord Campbell’s Act’ ), to allow a limited right of compensation to the family of a person killed in an accident. That Act provided the model for equivalent legislation in all the states and territories in Australia.151 Since the common law of torts refuses to recognise the interest of one person in the life of another, it is only the persons referred to in the legislation who may sue for another’s death. An employer cannot sue for the loss suffered by the death of an employee,152 nor can an employee bring an action if the employer is killed, leaving his or her workforce unemployed, even though that type of harm was reasonably foreseeable by the person who caused the fatal injury. Equally, an insurance company has no cause of action because it has to discharge its obligations under a life policy sooner than it otherwise would. The wording of the legislation differs among the various jurisdictions, but generally reflects the English model. The basis for recovery is that, if death is caused by a wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the injured person successfully to maintain an action, the person who would have been liable but for the death shall nevertheless be liable.153

Persons for whose benefit the action may be brought

11.34 The action is normally brought in the name of the executor or administrator of the deceased’s estate, and, in all jurisdictions other than Victoria, lies for the benefit of various members of the deceased’s family.154 The persons who are to be regarded as members of that family for this purpose vary from jurisdiction to jurisdiction. Universally it includes the spouse (whether de jure or de facto) of the deceased, and by amendments in all the remaining jurisdictions155 that includes a member of a same sex domestic relationship. Members of the deceased’s family also universally include his or her parents, step-parents and grandparents and his or her children, step-children and grandchildren; included also are ex-nuptial children.156 In addition, in all jurisdictions other than South Australia and Tasmania, the members of the family include a person to whom the deceased stood in loco parentis [page 394] and one who stood in loco parentis to the deceased; in all jurisdictions other than Queensland it includes the siblings of the deceased (whether of the whole blood or half-blood); and in Western Australia and the two territories the family of the deceased (for these purposes) includes the divorced wife or husband of the deceased. In Victoria, the category of persons for whose benefit the action may be brought is not limited to those who can show one of the above relationships, but is merely those who were wholly, mainly, or in part dependent on the deceased at the time of the injury from which the death resulted.157 If there is no executor or administrator, or if that person fails to bring an action within six months after the death of the deceased, the action may be commenced by anyone for whose benefit it lies.158

Nature of the act complained of 11.35 The legislation is couched in terms of a death being caused by a ‘wrongful act, neglect or default’ . While this phrase is generally applied to acts or omissions of the defendant which are in breach of a duty of care to the

deceased, it is not necessarily so confined. The words would presumably embrace any tort other than negligence,159 and were held by the High Court, in Woolworths Ltd v Crotty,160 to include a breach of contract where no negligence had been established against the defendant.161 By virtue of the Australian Consumer Law s 138(3), if a person dies as a result of a defect in manufactured goods, the dependants may rely on the relevant equivalent of Lord Campbell’s Act to seek damages from the manufacturer ‘as if … the safety defect were the manufacturer’s act, neglect or default’.162 But if the death was the result of misleading or deceptive conduct, contrary to the Australian Consumer Law s 18, the family will generally not be able to seek compensation for their loss under the Australian Consumer Law s 236,163 unless the action is commenced under the fair trading legislation of any state or territory other than New South Wales.164

11.36 In the light of the decision in Crotty’s case, it was clearly correct for a majority of the Full Court in Victoria, in Haber v Walker,165 to conclude that the action under Lord Campbell’s Act is not limited by the concept of remoteness of damage: see 9.7. The claimants need show only a causal link between the wrongdoer’s act and the death, and not that the death was a reasonably foreseeable consequence of the [page 395] accident.166 Hence, as was the case in Haber v Walker, if the victim commits suicide as a result of depression or mental illness brought about by the accident,167 the family may claim under the legislation.168 However, in Corr v IBC Vehicles Ltd,169 despite the defendant’s concession that its breach of duty had caused the deceased’s suicide, the House of Lords thought it necessary to determine that the suicide was also not too remote a consequence of the defendant’s conduct.

11.37 If the death was the result of successive acts of negligence by two persons, the claimants may recover from either, or both, tortfeasors,170 their proportionate share of the damages being determined by proceedings under the contribution legislation: see 29.31.

11.38 The ‘wrongful act, neglect or default’ which is the foundation of the

dependants’ action must, in terms of the legislation, not only be one that caused the victim’s death but also be one as would (if death had not ensued) have entitled the victim to ‘maintain an action and recover damages’ in respect thereof. Hence, if the victim would, in his or her own hypothetical action, have been met by the defence of volenti non fit injuria,171 the dependants can have no claim under the legislation.172 But if the deceased had merely agreed, prior to the accident, to a limitation on the damages which might be recoverable in the event of injury, the right of action is not barred and the family, not being parties to that contract, are not bound by its terms but may recover to the full extent of their loss.173

11.39

Prior to the enactment of the apportionment legislation, when contributory negligence was also a complete defence, the deceased’s right of action was barred by a failure to take care for his or her own safety and hence the dependants were unable to recover under the fatal accidents legislation.174 With the passing of the apportionment legislation, whereby contributory negligence was no longer a complete defence, it might have been thought that the family of a deceased victim could recover the full amount of their loss. However, in all jurisdictions other than Victoria and the Australian Capital Territory, either the contributory negligence legislation or the fatal accidents legislation requires that the damages to be awarded to the dependants shall be reduced in proportion to the degree to which the death [page 396] was the fault of the deceased.175 In Victoria and the Australian Capital Territory, no reduction is to be made to the dependants’ claims on account of the deceased’s contributory negligence.176 Although, on one reading of the fatal accidents legislation, the dependants may claim merely so long as the deceased had a good cause of action at the time of the initial injury, the accepted interpretation of the enactment is that, if death ensues some time after that injury, the victim must continue to have a right to sue the wrongdoer up until the date of death.177 Hence, the family’s claim will be barred if the death should occur after the expiry of the limitation period relating to the injury,178 and (in all jurisdictions other than the Northern Territory)179 if the deceased has, prior to the date of death, obtained

judgment or settled the action for personal injuries.180

The nature of the interests protected 11.40 The legislation makes no reference to the type of loss for which a claim may be made, but it has generally been interpreted narrowly. Recovery under the statutes is allowed only for the direct financial contribution to the dependant which the deceased would have made had he or she lived.181 There is, therefore, in all jurisdictions other than South Australia and the Northern Territory,182 no claim for the grief felt at the loss of a loved one,183 nor (apart from in the Northern Territory)184 can a husband maintain an action for loss of consortium185 if his wife is killed. Despite the fact that the death may have been caused by conduct of the defendant which was in high-handed disregard of the deceased’s rights, and thus such as normally to merit an award of exemplary damages, the family is not able to claim that non-compensatory award.186 [page 397]

11.41 The claim of the dependants is for the loss of the chance of financial support from the deceased.187 In the great majority of cases, in which the action is brought for the benefit of a family on the death of the breadwinner, that chance is a near certainty. Where the case does not fall into that category, it is for the claimant to prove that there was a real likelihood of prospective pecuniary advantage from the deceased, and not a mere speculative possibility.188 Thus, a father was able to recover when his 16-year-old daughter died, having almost completed her dressmaking apprenticeship,189 but the parent of a three-year-old child has been held to have no cause of action.190 Furthermore, because the legislation (in all jurisdictions other than Victoria) restricts the class of claimants to those who are related by blood or marriage to the deceased, the pecuniary benefit for which the claimant seeks recompense must be one that derives from that family relationship and not from any business relationship between the parties.191 This limitation has caused most difficulties of application where spouses are business partners,

and one of them is killed. The approach generally adopted is that if both in fact contribute equally to the profits of the business, and the fact of their being married is incidental to their combining in a business enterprise, the loss to the survivor derives from the business relationship and cannot be recovered.192 But if their joining in the entrepreneurial activity is for an ulterior reason (such as the minimisation of income tax), and one carries on the bulk of the business, the loss suffered if that one should be killed derives from the family relationship.193 With the amendment of the legislation in Victoria in 1982 to provide that the action may be brought for the benefit of anyone who was wholly or partly dependent on the deceased,194 it may be surmised that this restriction no longer applies in that state.

11.42 In South Australia and the Northern Territory there is provision in the legislation for the recovery of solatium for the grief suffered on the death of a loved one.195 The South Australian enactment is limited both as to the persons who may claim — father and mother of a deceased minor, and surviving spouse or domestic partner — and the amount which may be claimed — up to $10,000 in each case. No such limitations apply in the Northern Territory, so that a claim may be made by the [page 398] siblings of a deceased child,196 the mother (as well as the widower and children197) of a deceased woman,198 and by a de facto spouse.199 The amount that may be awarded in the territory depends solely on the very subjective factor of the degree of suffering endured by each of the respective claimants by reason of the death.200

Assessment of damages 11.43 As with a personal injuries action, the damages in a fatal accident case are awarded as a lump sum. In most jurisdictions, the courts have adopted the practice of arriving at that lump sum by a two-stage approach; first, by determining the losses suffered by the claimants up to the date of the trial, and secondly by assessing the prospective detriment likely to be suffered.201 Damages in the nature of interest202 may be awarded in respect

of the first, but not the second, of these stages.203 The two-stage approach is not, however, followed in Victoria, where the assessment of damages is made as from the date of death, account being taken of any matters which have occurred thereafter which may affect the assessment.204 Damages in the nature of interest are awarded on the whole of that sum for the period between the date of commencement of the proceedings and the date of the judgment.205 In determining the amount of that lump sum in relation to prospective losses, the court fixes the annual amount of the loss and capitalises it by reference to the expected period of the loss and a ‘discount rate’ , in the same way as with an award of damages for personal injuries: see 11.25. In the absence of statutory provision, the discount rate is three per cent,206 although legislation has prescribed a higher discount rate in New South Wales,207 Tasmania208 Victoria209 and Western Australia210 for all fatal accident claims.211 In New South Wales, an award of damages for a fatal accident claim when the death has occurred on the road or at work is also subject to a maximum limit.212 [page 399]

11.44 Although the fatal accidents legislation requires that only one action be brought, it also specifies that the damages are to be apportioned among the various members of the deceased’s family in such shares as the court thinks fit.213 While it often happens, in a straightforward case, that no such apportionment is made, it is clearly essential if, for any reason, the dependants have suffered differing types of loss,214 or one or more shares have to be reduced for any reason.215

11.45 There are two aspects to the determination of the damages after a fatal accident. First, there must be an assessment of the extent of the prospective pecuniary advantage that the dependants would have derived from the deceased, had the death not occurred, and, secondly, there must be a consideration of any factors which might diminish that loss. Each of these aspects will be considered in turn.

11.46 Extent of losses suffered If the deceased was the husband, father and

breadwinner for the family, the loss suffered by the surviving members is calculated by reference to the lost earning capacity216 of the deceased, after deducting income tax and the proportion of the product of that capacity which he would have spent on his own maintenance.217 To the figure thus arrived at may be added, if appropriate, the value of any substantial household services which the deceased had provided.218 The amount to be awarded to each member of the family also depends upon the length of time for which each had a reasonable expectation of receiving a benefit,219 so that each child’s share will be assessed on the basis that he or she will in due course achieve financial independence. In assessing the widow’s share, no account is taken of the fact that she has taken up employment after her husband’s death, since that fact does not diminish her expectation of financial support from her husband;220 if she had been earning prior to his death, the amount of her income is of relevance only in determining what proportion of the deceased’s earning capacity might have been spent solely for his own benefit;221 and if the deceased and his family had been [page 400] jointly running a business prior to his death, the fact that the business continues to operate as successfully after his death is not relevant in determining the level of dependency of the family.222

11.47 Where the deceased was the wife and mother of the family, and was in employment prior to her death, the damages for the surviving members of the family will be assessed in the same way as just discussed.223 If, on the other hand, the deceased had devoted the whole (or a large part) of her time to caring for the family, it has been recognised that the loss to the remainder of the family is the value of the services of which they have been deprived by the death, whether or not the widower has expended money in obtaining substitute services.224 The extent of that loss may be measured by reference to the commercial cost of providing such substitute services, but that is no more than a guide.225 And this head of damage must be discounted by the possibility that the widower will enter into a relationship with someone who will provide the same or similar services,226 or the occurrence of such an event.227

Whichever family member has been killed, the costs with which the rest of the family may be faced in obtaining professional assistance to manage a large award of damages is not a recoverable head of loss.228

11.48 In those jurisdictions in which there is a right of action against an employer for injuries suffered by an employee in the course of employment, which result in death, the workers’ compensation legislation provides for a reduction in the damages payable to the dependants to the extent of any benefits paid or payable under the legislation.229 In Victoria, there is, in addition, a limit of $500,000 on the damages payable to the dependants of one killed on the roads.230

11.49 Factors which may reduce the award While the application of the above principles provides an indication of the extent of the prospective pecuniary advantage which the family would have received but for the death, the assessment of each claimant’s damages must also take account of several countervailing factors.

11.50 If one of the claimants has been partly at fault in causing the death, and he or she is the only person who may be sued for that death, that family member [page 401] can claim nothing under the fatal accidents legislation.231 Where, however, one of the claimants has been partly to blame for the death, but there are others outside the family who are also liable for the death, the share that would otherwise have gone to that claimant is to be reduced in proportion to the degree to which he or she was responsible for the death.232

11.51 A further, and quite distinct, reason for reducing the amount to be awarded to a particular claimant is that, against the losses flowing from the death must be offset some of the pecuniary advantages which accrue by reason of the death.233 The most common instance of a pecuniary advantage which (in all jurisdictions other than Tasmania and the Northern Territory234) must be brought into account is the acceleration of a testamentary benefaction resulting from the early death.235 However, in a claim by a widow236 or

widower237 the general rule adopted by the courts is that any acceleration of the benefit of owning the matrimonial home is disregarded, since the beneficiary merely continues to enjoy as owner what had previously been enjoyed as spouse. This approach has been given legislative sanction in the two territories.238 The legislation in all jurisdictions also precludes account being taken of the proceeds of a life insurance policy, superannuation payments or pensions or benefits payable under social security or similar legislation.239 By virtue either of the legislation240 or judicial decisions,241 charitable gifts are also excluded.

11.52 One other matter which formerly was taken into account (in all jurisdictions other than the Northern Territory242) in reduction of the damages of a widow or widower was the prospect that the claimant would replace the pecuniary advantage provided by the deceased spouse with the same benefit from another person.243 In De Sales v Ingrilli,244 a majority of the High Court held that if, before the trial [page 402] of the action, a plaintiff has entered into a new partnership from which he or she derives substantial pecuniary advantage, that fact must be taken into account.245 But their Honours went on to hold that the prospect or contingency of the claimant entering into such a relationship should be ignored, as being incapable even of any sufficiently cogent estimation, let alone proof on a balance of probabilities.246 The Queensland legislation, enacted after the High Court decision, makes provision to the same effect,247 whereas that in Victoria prohibits any reduction being made on account of either the fact or the prospect of the claimant entering into such a relationship.248

Survival of causes of action 11.53 At common law, the death of either the victim of a tort or the one liable for it led to a cesser of the cause of action. This rule was almost entirely abolished by legislation in England in 1934, which has been adopted in all the Australian jurisdictions and in New Zealand.249 The only currently

relevant cause of action which (in all jurisdictions other than Tasmania: see 18.12) does not survive the death of either party is that for defamation.250 Although the legislation applies to all causes of action, the principal circumstance in which it is likely to be availed of is that in which the victim has suffered personal injury,251 and hence it is considered at this juncture. The death of the victim of a tort, and the consequent survival of the cause of action, affects the limitation period applicable to the action; this issue is considered below: see 28.35. The legislation provides for the survival both of an action vested in a deceased and of one subsisting against one who dies. Each situation requires separate discussion.

Action vested in deceased 11.54 In all cases in which a cause of action survives for the benefit of the victim’s estate, the latter may recover the pecuniary losses252 suffered by the victim in the period between the injury and the death. Thus, the estate may recover the amount [page 403] of the victim’s earning capacity lost during that period,253 the cost of medical, nursing and similar expenses254 and the value of voluntary services provided to the deceased.255 It is also arguable that the estate may recover damages for the loss of the chance of having legal proceedings conducted timeously.256 However, a claim for exemplary damages257 dies with the victim.258 In other respects, the heads of damage recoverable by the estate depend upon whether or not the death was caused by the negligent act or omission which gave rise to the victim’s cause of action.

11.55 Where the death is the result of the original injury, the legislation in all jurisdictions precludes recovery by the estate of damages for any nonpecuniary harm — pain and suffering, loss of amenities or loss of expectation of life. And, by amendments passed in Queensland in 1972,259 in the other Australian jurisdictions between 1982 and 1986,260 and in New Zealand in

1996261 the estate is unable to claim for the deceased’s lost earning capacity for the period after the death — the ‘lost years’: see 11.11. The legislation also provides that the damages awarded to the estate shall be calculated without reference to any loss or gain to the victim’s estate consequent on the death.262 The losses there referred to are those which could not arise during the deceased’s lifetime, such as the cost of obtaining probate and administering the estate,263 while the gains are intended to include, for example, the proceeds of a life insurance policy.264 Funeral expenses would normally be a loss to the estate which would be irrecoverable by virtue of the above provision, were it not for an express exception in that regard.

11.56 Where the death occurs from a cause independent of the accident which gave rise to the cause of action, the legislation in all jurisdictions other than Queensland, South Australia and Western Australia allows the estate to maintain an action for the non-pecuniary harm suffered by the victim between the time of the accident and the date of death.265 [page 404]

11.57 Although the survival of actions legislation comes into operation on the death of one who has been the victim of a tort, it is distinct, in all but one respect, from the fatal accidents legislation. The former does not create a new cause of action, but merely allows an existing one to be sued on; the latter, as has been shown in 11.33, creates a new cause of action in favour of third parties. Further, the survival of actions legislation is concerned (apart from the recovery of funeral expenses) with losses suffered prior to death, while the fatal accidents legislation provides compensation for losses accruing after, and as a result of, death.

11.58 It has already been mentioned that the survival of actions legislation allows for the recovery by the estate of the funeral expenses of the deceased: see 11.55. However, in all jurisdictions other than Queensland and Victoria, the fatal accidents legislation also provides for the recovery of such expenses, if they were incurred by the persons for whose benefit the action may be brought.266 Since, in the great majority of wrongful death cases, action will be brought under the latter statutes for the loss of dependency, it is assumed

that, where that is possible, the dependants will rely on that legislation for the recovery of funeral expenses rather than incurring the cost of separate proceedings under the survival of actions legislation for that purpose.

Action subsisting against a deceased 11.59 The survival of actions legislation provides that all actions subsisting against a tortfeasor survive his or her death apart from that for defamation (and even this limitation does not apply in Tasmania).And, whereas a claim for exemplary damages may not be continued if the plaintiff dies, it may still be pursued if it is the defendant who dies: see 27.12.

11.60 In the case of a road accident, it may well happen that the tortfeasor dies before the victim. In such a case, in the absence of statutory provisions to the contrary, the dependants of the victim would be precluded from pursuing a claim under the fatal accidents legislation. The cause of action under those statutes arises only on the victim’s death. But, the tortfeasor having already died, there would have been no cause of action under Lord Campbell’s Act in existence at the time of his or her death which might subsist against the estate. However, the survival of actions legislation provides for this eventuality,267 thus ensuring recovery to the dependants whatever the (possibly coincidental) order in which the victim and tortfeasor die. _______________ 1.

See generally Luntz, Assessment of Damages for Personal Injury and Death: General Principles, 2006.

2.

Referred to in 11.4.

3.

See, eg, Sharman v Evans (1977) 138 CLR 563 at 584-5; 13 ALR 57 at 75 per Gibbs and Stephen JJ; cf the comment of Windeyer J in Skelton v Collins (1966) 115 CLR 94 at 132 that it is anomalous to award damages for pain that has been suffered and will not recur.

4.

Todorovic v Waller (1981) 150 CLR 402 at 412-3; 37 ALR 481 at 486 per Gibbs CJ and Wilson J.

5.

See Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 at 183; [1979] 2 All ER 910 at 914 per Lord Scarman (HL): ‘… so much of the award as is to be attributed to future loss and suffering … will almost surely be wrong’.

6.

Cf Thurston v Todd [1966] 1 NSWR 321 (CA) and discussion of that case in Davis, ‘Damages for Personal Injury and the Effect of Future Inflation’ (1982) 56 ALJ 168 at 174. For a survey of the compensation experiences of victims of personal injury in the United Kingdom, see Law Commission, Personal Injury Compensation: How Much is Enough?, Law Com No 225, 1994.

7.

Supreme Court Act 1935 (SA) s 30B; but see the statutory limitation on damages recoverable at common law against an employer for an industrial injury, fn 12 below.

8.

Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 16.

9.

Law Reform Commissioner of Tasmania, Damages for Personal Injury, Report No 67, 1991, pp 38-9.

10.

Cf Damages Act 1996 (UK) s 2, which obliges a court awarding damages in respect of future pecuniary injury to consider whether to make part or all of the award in the form of a periodical payments order and Lewis, ‘The Politics and Economics of Tort Law: Judicially Imposed Periodical Payments of Damages’ (2006) 69 MLR 418.

11.

Civil Law (Wrongs) Act 2002 (ACT) s 106; Workers Compensation Act 1987 (NSW) s 151Q; Motor Accidents Compensation Act 1999 (NSW) s 143; Civil Liability Act 2002 (NSW) Pt 2 Div 7; Personal Injuries (Liabilities and Damages) Act 2003 (NT) Pt 4 Div 6; Civil Liability Act 2003 (Qld) Ch 3 Pt 4; Civil Liability Act 2002 (Tas) s 8; Wrongs Act 1958 (Vic) Pt VC.

12.

Workers Rehabilitation and Compensation Act 1986 (SA) s 54; Workers Rehabilitation and Compensation Act 1986 (NT) s 52.

13.

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 44, 45. 378

14.

The various limitations are discussed by Madden and Cockburn, ‘Full Compensation No Longer Sacrosanct: Reflections on the Past and Future Economic Loss “Cap” for High Income Earners’ (2012) 20 TLJ 90.

15.

Wright v British Railways Board [1983] 2 AC 773 at 776-7; 2 All ER 698 at 699 per Lord Diplock (HL).

16.

Sharman v Evans (1977) 138 CLR 563 at 572; 13 ALR 59 at 65 per Gibbs and Stephen JJ.

17.

See, eg, Graham v Baker (1961) 106 CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ; Todorovic v Waller (1981) 150 CLR 402 at 464; 37 ALR 481 at 528-9 per Brennan J.

18.

On the distinction between ‘specia’ and ‘general’ damages in this context, see 27.5.

19.

Ilkiw v Samuels [1963] 2 All ER 879.

20.

Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1; see also Supreme Court Act 1995 (Qld) s 15; Wrongs Act 1958 (Vic) s 28A.

21.

For the legislation under which, in all jurisdictions other than Tasmania, an award of damages may bear interest for the period up to judgment, see 27.24ff.

22.

Cullen v Trappell (1980) 146 CLR 1 at 19; 29 ALR 1 at 13 per Gibbs J.

23.

Workers Compensation Act 1987 (NSW) s 151M; Motor Accidents Compensation Act 1999 (NSW) s 137; Civil Liability Act 2002 (NSW) s 18.

24.

Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1. See also Supreme Court Act 1995 (Qld) s 15 and Wrongs Act 1958 (Vic) s 28A, both enacted to reverse the earlier decision in Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129. For a discussion of the effect of tax in assessing damages for a plaintiff whose pre-injury capacity had been remunerated through a family trust, see Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39 (FC).

25.

Villasevil v Pickering (2001) 24 WAR 167 (FC); NSW Insurance Ministerial Corp v Wynn (1994) Aust Torts Reports 81-304 (NSWCA) (rev’d on other grounds, Wynn v NSW Insurance Ministerial Corp (1995) 184 CLR 485; 133 ALR 154); Civil Liability Act 2002 (NSW) s 15C, discussed in Naidovski v Crnojlovic (2008) 71 NSWLR 728 (CA).

26.

Cf Tucker v Westfield Design & Construction Pty Ltd (1993) 46 FCR 20; 123 ALR 278 (FC) in which the plaintiff’s injuries allowed him to attain better qualifications than he would otherwise have had; his damages for lost earning capacity were consequently very modest.

27.

Husher v Husher (1999) 197 CLR 138; 165 ALR 384; cf Mastaglia v Burns (2006) 32 WAR 427 (CA).

28.

See, eg, Dykstra v Head (1989) Aust Torts Reports 80-280 (NSWCA); McGrath v NRMA Insurance Ltd (1996) 24 MVR 428 (NSWCA).

29.

See, eg, Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 24; 127 ALR 180 at 196 per McHugh J.

30.

For the method by which this sum is determined, see 11.25.

31.

See, eg, Western Australia v Watson [1990] WAR 248 at 321-2 (FC); Wynn v NSW Insurance Ministerial Corp (1995) 184 CLR 485 at 494-5; 133 ALR 154 at 161-2 but cf Civil Liability Act 2002 (NSW) s 13 which appears not to permit such an increase, and the comments thereon in Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235 (NSWCA) at [2]-[17] per Hodgson JA. For a dramatic illustration of the application of this principle, see Norris v Blake (No 2) (1997) 41 NSWLR 49 (CA) (plaintiff’s career as a film actor cut short by the accident).

32.

In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; 92 ALR 545 the High Court emphasised that all that is being assessed in these circumstances is a chance or possibility.

33.

In McGrath v NRMA Insurance Ltd (1996) 24 MVR 428 (NSWCA), Koeck v Persic (1996) Aust Torts Reports 81-386 at 63,359 (ACTFC) and Gilchrist v Taylor [2004] NSWCA 476 at [12] 15 per cent was regarded as the norm under this head, while in Villasevil v Pickering (2001) 24 WAR 167 (FC) that figure was regarded as a maximum, and between 5 and 10 per cent as the norm.

34.

Wynn v NSW Insurance Ministerial Corp (1995) 184 CLR 485; 133 ALR 154.

35.

Sharman v Evans (1977) 138 CLR 563 at 583-4; 13 ALR 59 at 74 per Gibbs and Stephen JJ; see also Hughes v McKeown [1985] 3 All ER 284; Housecroft v Burnett [1986] 1 All ER 332 at 345 per O’Connor LJ (CA); Psathas v Chenoweth (SAFC, 26 November 1993, unreported).

36.

Mann v Ellbourn (1974) 8 SASR 298 (FC); Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 151 NTR 1 at [209]-[212] per Mildren J. If the plaintiff is able to prove that, but for the accident, he or she would have fully utilised any earning capacity in the future, the proportion representing the lost chances will be that much greater: GMH Ltd v Whetstone (1988) 50 SASR 199 (FC); Varnas v Peake (2001) 80 SASR 351 (FC).

37.

Goodsell v Murphy (2002) 36 MVR 408 (NSWCA).

38.

See, eg, Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321 (nine-year-old); Burford v Allen (1993) 60 SASR 428 (FC) (seven-year-old); New South Wales v Moss (2000) 54 NSWLR 536 (CA) (14-year-old); Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235 (NSW CA) (12-year-old); Walshe v Prest [2005] NSWCA 333 (10-yearold).

39.

Skelton v Collins (1966) 115 CLR 94; Sharman v Evans (1977) 138 CLR 563; 13 ALR 59; James Hardy & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 (CA).

40.

Because recovery of damages by the victim bars the right of the dependants to claim under the local equivalent of Lord Campbell’s Act: see 11.39.

41.

Pettersen v Bacha (1995) 21 MVR 71 at 72 per Handley JA (NSWCA); cf Croke v Wiseman

[1981] 3 All ER 852 at 861-2 per Griffiths LJ (CA) (any award of damages under this head is so speculative as to admit of any semblance of reality). 42.

Transport Accident Act 1986 (Vic) s 93(7); Accident Compensation Act 1985 (Vic) s 135A(7).

43.

Civil Liability Act 1936 (SA) s 54(2).

44.

Civil Law (Wrongs) Act 2002 (ACT) s 98; Workers Compensation Act 1987 (NSW) ss 151H, 151I; Motor Accidents Compensation Act 1999 (NSW) s 125; Civil Liability Act 2002 (NSW) s 12; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 20; Civil Liability Act 2003 (Qld) s 54; Civil Liability Act 2002 (Tas) s 26; Wrongs Act 1958 (Vic) s 28F. For consideration of the application of the respective caps, see Fkiaras v Fkiaras (2010) 77 NSWLR 468 (CA); Tuohey v Freemasons Hospital [2012] VSCA 80.

45.

Civil Liability Act 2002 (WA) s 11; Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3F.

46.

Sharman v Evans (1977) 138 CLR 563 at 573-4; 13 ALR 57 at 65-6 per Gibbs and Stephen JJ.

47.

Campbell v Nangle (1985) 40 SASR 161 (FC); Beasley v Marshall (1985) 40 SASR 544 (FC); Farr v Schultz (1988) 1 WAR 94 (FC) are examples of cases in which the damages were assessed on the basis that the plaintiff would be cared for in an institution.

48.

Examples include Government Insurance Office (NSW) v Mackie (1990) Aust Torts Reports 81053 at 68,210 (NSWCA); Wieben v Wain (1991) 13 MVR 393 at 398-9 (Qld FC); Burford v Allen (1993) 60 SASR 428 at 437 (FC).

49.

Sharman v Evans (1977) 138 CLR 563 at 576; 13 ALR 57 at 68 per Gibbs and Stephen JJ (because the plaintiff, if capable of earning, would of necessity have spent part of the income on those items).

50.

Clark v Kramer [1986] WAR 54 at 61 per Brinsden J, at 65 per Kennedy J (FC).

51.

Wilson v McLeay (1961) 106 CLR 523; Wann v Fire & All Risks Insurance Co Ltd [1990] 2 Qd R 596.

52.

(1977) 139 CLR 161; 15 ALR 387.

53.

See also Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283.

54.

Motor Accidents Compensation Act 1999 (NSW) s 137 and Civil Liability Act 2002 (NSW) s 18(1), forbid the award of interest in such circumstances.

55.

Grincelis v House (2000) 201 CLR 321; 173 ALR 564; the rate of interest is the same as for damages for lost earning capacity, as to which see 11.26.

56.

Kovac v Kovac [1982] 1 NSWLR 656 (CA); Carrick v Commonwealth [1983] 2 Qd R 365 (FC); Brittliffe v Brittliffe (1990) Aust Torts Reports 81-060 (NSWCA); Van Gervan v Fenton (1992) 175 CLR at 340-1; 109 ALR at 292-3 per Brennan J, at 343-4; 295 per Deane and Dawson JJ; FAI Allianz Insurance Ltd v Lang (2004) 42 MVR 482 (NSWCA).

57.

Beasley v Marshall (1985) 40 SASR 544 at 565 per Lunn AJ; Newman v Nugent (1992) 12 WAR 119 at 123 per Franklyn J (FC).

58.

Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695 (NSWCA).

59.

Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283; and see Graycar, ‘Love’s Labour’s Cost’ (1993) 1 TLJ 122.

60.

Settree v Roberts [1982] 1 NSWLR 649 (CA); but cf Grincelis v House (1998) 84 FCR 190; 156 ALR 443 (FC); Goode v Thompson [2002] 2 Qd R 572 (CA) (award may include agency fee charged by commercial organisation).

61.

Van Gervan v Fenton (1992) 175 CLR at 334; 109 ALR at 287 per Mason CJ, Toohey and McHugh JJ. But no account is to be taken of the possible impact of income tax: Altman v Denning [1995] 2 VR 1 (App Div).

62.

Griffiths v Kerkemeyer (1977) 139 CLR 161 at 177; 15 ALR 387 at 400 per Mason J; at 193-4; 413 per Stephen J; cf Hunt v Severs [1994] 2 AC 350; 2 All ER 385 (HL) (damages to be held on trust for the provider).

63.

(1996) 187 CLR 354; 141 ALR 37, rejecting the opposite view expressed in Hunt v Severs [1994] 2 AC 350; 2 All ER 385 (HL)

64.

Transport Accident Act 1986 (Vic) s 93(10)(c); Accident Compensation Act 1985 (Vic) s 134AB(24)(b).

65.

The form of the legislation allows for the possibility of family members or friends entering into a binding contract with the victim to provide nursing and other services.

66.

Civil Liability Act 1936 (SA) s 58.

67.

Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3D; Civil Liability Act 2002 (WA) s 12.

68.

Motor Accidents Compensation Act 1999 (NSW) s 128; Workers Compensation Act 1987 (NSW) s 151K; Civil Liability Act 2002 (NSW) s 15; Roads and Traffic Authority (NSW) v McGregor (2005) 44 MVR 261 (NSWCA); Hill v Forrester (2010) 79 NSWLR 470 (CA); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 23; Civil Liability Act 2002 (Tas) s 28B.

69.

Civil Liability Act 2003 (Qld) s 59 (for the more extensive restrictions on the recovery of such damages in respect of work injuries, see Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 306C - 306H).

70.

Wrongs Act 1958 (Vic) ss 28IA, 28IB.

71.

Hodges v Frost (1984) 53 ALR 373 (Fed Ct); Sturch v Willmott [1997] 2 Qd R 310 (CA); Sullivan v Gordon (1999) 47 NSWLR 319 (CA); Thomas v Kula [2001] WASCA 362; cf Weinert v Schmidt (2002) 84 SASR 307 in which a majority of the Full Court considered that such an award could be established only by legislation.

72.

(1977) 139 CLR 161; 15 ALR 387; see 11.15.

73.

(2005) 226 CLR 1; 222 ALR 1.

74.

Ibid at [16] per Gleeson CJ, Gummow and Hayne JJ, approving Burnicle v Cutelli [1982] 2 NSWLR 26 (CA) and Maiward v Doyle [1983] WAR 210 (FC).

75.

Ibid at [67] per Gleeson CJ, Gummow and Hayne JJ.

76.

Civil Liability Act 2002 (NSW) s 15B, discussed in Liverpool City Council v Laskar (2010) 77 NSWLR 666 (CA); Civil Law (Wrongs) Act 2002 (ACT) s 100.

77.

Civil Liability Act 2003 (Qld) s 59A, inserted by an amendment in 2010.

78.

Cf Wrongs Act 1958 (Vic) s 28ID (inserted by an amendment in 2003), which assumes the correctness of the earlier decisions, and which is now largely inoperative.

79.

Willett v Futcher (2005) 221 CLR 627; 221 ALR 16; for earlier instances of this award being applied, see Campbell v Nangle (1985) 40 SASR 161 (FC); Farr v Schultz (1988) 1 WAR 94 (FC); Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 (CA); Mullens v Duck [1988] 2 Qd R 674; Crockett v Roberts (2002) 11 Tas R 393. On the method of assessing the amount of such damages, see esp Masinovic v Motor Vehicle Insurance Trust (1986) 42

SASR 161 (FC). 80.

Nicholson v Nicholson (1994) 35 NSWLR 308 (CA).

81.

Civil Liability Act 1936 (SA) s 57.

82.

See, eg, Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400 at 408 per Higgins J (ACT SC).

83.

Marsland v Andjelic (1993) 31 NSWLR 162 (CA); Nicholson v Nicholson (1994) 35 NSWLR 308 (CA).

84.

Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 (FC); Crockett v Roberts (2002) 11 Tas R 393.

85.

Weideck v Williams [1999] NSWCA 346 at [12] per Davies AJA; Rosecrance v Rosecrance (1995) 105 NTR 1 at 20-3 per Mildren J (an assessment upheld on appeal: Rosecrance v Rosecrance (1998) 8 NTLR 1 (CA)); see also Roberts v Johnstone [1989] QB 878 (CA) and Law Commission, Damages for Personal Injury: Medical, Nursing and Other Expenses, Law Com No 262, 1999, 4.15-4.16.

86.

Cf Redding v Lee (1983) 151 CLR 117; 47 ALR 241, in which various judges of the High Court gave different answers to the questions of the deductibility from a damages award of invalid pension and unemployment benefits. The outcome of that case has been overtaken by legislation: see 11.23.

87.

See, eg, Graham v Baker (1961) 106 CLR 340.

88.

See, eg, National Insurance Co of NZ Ltd v Espagne (1961) 105 CLR 569 at 572-3 per Dixon CJ.

89.

(2009) 239 CLR 446; 261 ALR 481.

90.

Equally within the same principle is the value of gratuitous physical assistance provided to the plaintiff: Powercor Australia Ltd v Thomas [2012] VSCA 87.

91.

New South Wales v Davies (1996) 43 NSWLR 182 (CA).

92.

Hall v Cramer (2003) 40 MVR 477 (ACT SC).

93.

Parry v Cleaver [1970] AC 1; [1969] 1 All ER 555 (HL); it is irrelevant that the employer, who provides the pension, is also the tortfeasor: Smoker v London Fire Authority [1991] 2 AC 502; 2 All ER 449 (HL); New South Wales v Davies (1996) 43 NSWLR 182 (CA). But a lump sum payment representing that part of the pension which would have been payable after normal retirement age will be deducted: Longden v British Coal Corporation [1998] AC 653; 1 All ER 289 (HL).

94.

Clay v Freda (1988) 144 LSJS 274 (FC); Hall v Cramer (2003) 40 MVR 477 (ACTSC).

95.

Cunningham v Harrison [1973] QB 942; 3 All ER 463 (CA); McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854 (CA); unless the employer is also the defendant: Williams v BOC Gases Ltd [2000] ICR 1181 (CA); Gaca v Pirelli General plc [2004] 3 All ER 348 (CA).

96.

Zheng v Deju Cai (2009) 239 CLR 446; 261 ALR 481.

97.

Wollington v State Electricity Commission [1980] VR 91 (FC).

98.

Bradburn v Great Western Rly Co (1874) LR 10 Ex 1 (accident policy); Oakley v McIntyre [1984] Tas R 44 (medical and hospital benefits policy).

99.

Richards v Mills (2003) 27 WAR 200 (CA); unless the employer is also the defendant: McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854 (CA); Gaca v Pirelli General plc [2004] 3 All ER 348 (CA).

100. (1983) 151 CLR 117; 47 ALR 241. 101. Camm v Salter [1992] 2 Qd R 342 (FC); McGill v Shield Contractors Pty Ltd [1998] 2 Qd R 398 (CA); Partridge v Hobart City Council [2012] TASFC 3. Under the motor accident compensation scheme in Victoria, the court is obliged to ensure the repayment to the Transport Accident Commission out of the damages awarded of the amount of any payments made by the commission to the victim: Transport Accident Act 1986 (Vic) s 93(11)(a); such payments must therefore be disregarded in assessing the victim’s damages. 102. Graham v Baker (1961) 106 CLR 340; see also Hussain v New Taplow Paper Mills Ltd [1988] AC 514; 1 All ER 541 (HL). 103. Williams v BOC Gases Ltd [2000] ICR 1181 (CA); Gaca v Pirelli General plc [2004] 3 All ER 348 (CA). 104. Harris v Commercial Minerals Ltd (1996) 186 CLR 1; 135 ALR 353 105. Workers Compensation Act 1987 (NSW) s 149(1)(c). Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 270; Workers Rehabilitation and Compensation Act 1988 (Tas) s 133; Accident Compensation Act 1985 (Vic) s 134AB(12); Workers’ Compensation and Injury Management Act 1981 (WA) s 92; Workers’ Compensation Act 1951 (ACT) s 184. 106. (1981) 150 CLR 402; 37 ALR 481. 107. The same rate was subsequently adopted in England and Wales: Wells v Wells [1999] 1 AC 345; [1998] 3 All ER 481 (HL). Pursuant to the Damages Act 1996 (UK) s 1(1), the Lord Chancellor has specified a rate of 2.5%: Damages (Personal Injury) Order 2001 (UK). 108. The Civil Liability Act 1936 (SA) s 55 provides that the discount rate shall be such percentage as is prescribed, but no regulations have been made under that section. 109. See the Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 22, setting a discount rate of 5%. 110. Motor Accidents Compensation Act 1999 (NSW) s 127 (5%); Workers Compensation Act 1987 (NSW) s 151J (5%); Civil Liability Act 2002 (NSW) s 14 (5%); Civil Proceedings Act 2011 (Qld) s 61 (5%); Civil Liability Act 2002 (Tas) s 28A (5%); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 5 (6%). In each case, the rate may be varied by regulation or Orderin-Council. 111. Transport Accident Act 1986 (Vic) s 93(13) (6%); Accident Compensation Act 1985 (Vic) s 134AB(32) (6%); Wrongs Act 1958 (Vic) s 28I (5%). 112. Teubner v Humble (1963) 108 CLR 491 at 507 per Windeyer J. 113. Bresatz v Przibilla (1962) 108 CLR 541 at 548 per Windeyer J. 114. See esp Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. 115. (1993) 178 CLR 44; 113 ALR 577. 116. NSW Insurance Ministerial Corp v Hay (1993) 18 MVR 373 (NSWCA); Ewins v BHP Billiton Ltd (2005) 91 SASR 303 at [62] per Doyle CJ. 117. In Heil v Rankin [2001] QB 272; [2000] 3 All ER 1173 the English Court of Appeal acknowledged that awards under this head must be adjusted in order broadly to take account of monetary inflation. 118. See, eg, Cull v Judd [1980] WAR 161 at 166 (FC), in which a comparison was made with the amount awarded under this head in Sharman v Evans (1977) 138 CLR 563; Campbell v Nangle

(1985) 40 SASR 161 at 184 (FC), where King CJ remarked that the award of $200,000 for noneconomic loss was apparently the highest figure allowed in that court under that head; Motor Accident Insurance Board v Pulford (1993) Aust Torts Reports 81-235 at 62,422 (Tas FC) where Cox J remarked on the levels of awards both in that state and in others. 119. See, eg, Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [72]-[76] per Mason P, with the concurrence of Stein and Heydon JJA (CA). 120. Civil Law (Wrongs) Act 2002 (ACT) s 99; Civil Liability Act 2002 (NSW) s 17A; Personal Injuries (Liability and Damages) Act 2003 (NT) Pt 4 Div 4; Civil Liability Act 2002 (Qld) s 61(1)(c)(ii); Civil Liability Act 1936 (SA) s 52; Civil Liability Act 2002 (Tas) s 28; Wrongs Act 1958 (Vic) s 28HA; Civil Liability Act 2002 (WA) s 10A. 121. See, eg, Clark v Kramer [1986] WAR 54 at 65 per Kennedy J (FC) (the fact that the plaintiff was 64 years old and had a life expectancy of only five years was a relevant consideration); Sullivan v Micallef (1994) Aust Torts Reports 81-308 (NSWCA); Namala v Northern Territory (1996) 131 FLR 468 at 473 per Kearney J (NTSC). 122. Skelton v Collins (1966) 115 CLR 94. 123. Teubner v Humble (1963) 108 CLR 491 at 506 per Windeyer J. 124. See, eg, Motor Accidents Insurance Board v Pulford (1993) Aust Torts Reports 81-235 at 62,421 per Cox J (Tas FC). 125. See, eg, Vassilef v BGC Marine Services (NSW) Pty Ltd [1980] Qd R 21; Stewart v Andri (1994) 19 MVR 1 (WAFC); Knight v Government Insurance Office (NSW) (CA(NSW), 13 April 1995, unreported); Electrolux Pty Ltd v Siniakis (CA(Vic), 10 April 1996, unreported). 126. Dixon v Davies (1982) 17 NTR 31; Napaluma v Baker (1982) 29 SASR 192; Weston v Woodroffe (1985) 36 NTR 34; Namala v Northern Territory (1996) 131 FLR 468 at 474 per Kearney J (NTSC). 127. Teubner v Humble (1963) 108 CLR 491 at 507-8 per Windeyer J. 128. Sharman v Evans (1977) 138 CLR 563 at 583; 13 ALR 57 at 75 per Gibbs and Stephen JJ; Campbell v Nangle (1985) 40 SASR 161 at 200 per Jacobs J (FC). 129. Cf the position in England, where loss of amenity is regarded as compensating for the fact of deprivation, allowing for a substantial award to a victim rendered permanently unconscious: Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174; [1979] 2 All ER 910 (HL). 130. Skelton v Collins (1966) 115 CLR 94 (the figure of $20,000 is based on the amount awarded in that case, with an adjustment for the subsequent decline in the value of money). 131. See, eg, Dundas v Harbour Motors Pty Ltd (1988) Aust Torts Reports 80-161 (Qld FC). 132. Skelton v Collins (1966) 115 CLR 94 at 97-8 per Kitto J; Sharman v Evans (1977) 138 CLR 563 at 584; 13 ALR 57 at 74 per Gibbs and Stephen JJ. 133. Benham v Gambling [1941] AC 157; 1 All ER 7. 134. (1966) 115 CLR 94. 135. Yorkshire Electricity Board v Naylor [1968] AC 529; [1967] 2 All ER 1 (HL); Sharman v Evans (1977) 138 CLR 563 at 584; 13 ALR 57 at 74 per Gibbs and Stephen JJ. 136. See, eg, Sullivan v Micallef (1994) Aust Torts Reports 81-308 at 61,790 per Mahoney AP (NSWCA) (the appropriate figure was accepted as being in a range between $5000 and $20,000);

McGilvray v Amaca Pty Ltd (SC(WA), BC200108076, 14 December 2001, Pullin J, unreported) ($15,000 awarded). 137. Skelton v Collins (1966) 115 CLR 94. 138. Cf the decision of the Supreme Court of Canada in Andrews v Grand & Toy Alberta Ltd (1978) 83 DLR (3d) 452, setting a limit of $100,000; to be adjusted to take account of inflation: Lindal v Lindal (1981) 129 DLR (3d) 263 (SCC). 139. The Workers Compensation Act 1987 (NSW) s 151G, prohibits the award of damages for noneconomic loss, while the Workers Rehabilitation and Compensation Act 1986 (SA) s 54, denies an employee any right to common law damages for injuries suffered in the course of employment. 140. Motor Accidents Compensation Act 1999 (NSW) ss 131-134; Hodgson v Crane (2002) 55 NSWLR 199 (CA); Civil Liability Act 2002 (NSW) ss 16, 17; Civil Liability Act 1936 (SA) s 52. 141. Civil Liability Act 2002 (Qld) ss 61, 62. 142. Motor Vehicles (Third Party Insurance) Act 1943 (WA) s 3C; George v Erikson (1998) 27 MVR 323 (WAFC); Civil Liability Act 2002 (WA) s 9. In each case, the amounts are subject to adjustment to take account of inflation. 143. Transport Accident Act 1986 (Vic) s 93(7)(b); Accident Compensation Act 1985 (Vic) s 134AB(22)(b). And see Wrongs Act 1958 (Vic) s 28G, which imposes a statutory maximum in relation to non-economic loss suffered otherwise than on the road or at work. In each case, the amounts are indexed to take account of inflation. 144. If, depending on the jurisdiction concerned, the death of the victim occurs more than three or six years after the accident, the right to sue is barred by the relevant limitation statute: see further 28.35. 145. The fact that the family’ s action is completely distinct from that of the estate has recently been reaffirmed in Reader v Molesworth Bright Clegg [2007] 3 All ER 107 (CA). 146. See generally Kutner, ‘Reforming Wrongful Death Law’ (1999) 7 TLJ 46. 147. Baker v Bolton (1808) 1 Camp 493; 170 ER 1033. 148. See Holdsworth, History of English Law, 4th ed, 1935,Vol 3, pp 333-6, 676-7; Rose v Ford [1937] AC 826 at 834; 3 All ER 359 at 362 per Lord Atkin (HL). 149. Admiralty Commissioners v SS Amerika [1917] AC 38. 150. Woolworths Ltd v Crotty (1942) 66 CLR 603; Barclay v Penberthy (2012) 291 ALR 608 at [22][27] per French CJ, Gummow, Hayne, Crennan and Bell JJ, at [80]-[84] per Heydon J, at [178] per Kiefel J. 151. ACT: Civil Law (Wrongs) Act 2002 Pt 3.1; NSW: Compensation to Relatives Act 1897; NT: Compensation (Fatal Injuries) Act 1974; Qld: Civil Proceedings Act 2011 Pt 10; SA: Civil Liability Act 1936 Pt 5; Tas: Fatal Accidents Act 1934; Vic: Wrongs Act 1958 Pt III; WA: Fatal Accidents Act 1959. 152. Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 (CA). 153. ACT s 24; NSW s 3(1); NT s 7(1); Qld s 64; SA s 23; Tas s 4; Vic s 16; WA s 4. 154. ACT s 25(1); NSW s 4(1); NT s 8(2); Qld s 65; SA s 24(1); Tas s 5; WA s 6(1). 155. Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 (ACT) Sch 1 Pt 1.5; Property

(Relationships) Legislation Amendment Act 1999 (NSW) Sch 2 Pt 2.3; Relationships Act 2011 (Qld); Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (NT) Sch 1; Statutes Amendment (Domestic Partners) Act 2006 (SA); Relationships (Consequential Amendments) Act 2003 (Tas); Acts Amendment (Equality of Status) Act 2003 (WA) Pt 20. 156. In WA, ACT and NT, by virtue of the fatal accidents legislation; in the other states by virtue of: Children (Equality of Status) Act 1976 (NSW); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA) Pt 2; Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic). 157. Vic s 17. 158. ACT s 28(3); NSW s 6B; NT s 13; Qld s 65(2); SA s 23; Tas s 8; Vic s 18; WA s 9. On the limitation period applicable to the claimant’ s action, see 28.35. 159. But see Companion Animals Act 1998 (NSW) s 26, which was apparently thought to be necessary to ensure recovery if the death were caused by a canine attack; as to liability generally for harm done by dogs, see 15.19ff. 160. (1942) 66 CLR 603. 161. The breach consisted of a failure to fulfil the term implied in a contract for the sale of goods that the goods would be reasonably fit for their purpose. 162. Australian Consumer Law s 138(3)(b). 163. See Competition and Consumer Act 2010 (Cth) s 137C(1); Fair Trading Act 1987 (NSW) s 74(4). 164. As is explained in 22.2, it is only provisions of the Australian Consumer Law which are picked up by the state and territory fair trading legislation; as the above limitation on a claim for damages is contained in the Competition and Consumer Act 2010 and not the Australian Consumer Law, it is up to states and territories to make their own provision for that limitation. 165. [1963] VR 339. 166. The correctness of the decision in Haber v Walker was left open in Versic v Connors [1969] 1 NSWR 481 (CA), but supported by Begg J in Zavitsanos v Chippendale [1970] 2 NSWR 495 at 499-500. It has, however, been doubted in Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 at 22 per Wanstall ACJ and rejected in Lisle v Brice [2002] 2 Qd R 168 at [9] per Thomas JA, at [39] per Williams JA (CA) and in Lyle v Soc (2009) 38 WAR 418 at [28]-[32] per Steytler P (CA) (although in that case the court did not have the benefit of argument on this issue). 167. If the suicide results from an extraneous reason, it may well be regarded as a novus actus interveniens: Zavitsanos v Chippendale [1970] 2 NSWR 495 at 500 per Begg J, and see generally 9.13. 168. The family may similarly claim if the victim’ s suicide results from the defendant’ s failure to take adequate steps to prevent that occurrence: Kirkham v Chief Constable for Greater Manchester [1990] 2 QB 283; 3 All ER 246 (CA); Reeves v Metropolitan Police Commissioner [2000] 1 AC 360; [1999] 3 All ER 897 (HL); see 7.24. 169. [2008] 1 AC 884; 2 All ER 943. 170. Chapman v Hearse (1961) 106 CLR 112; Commonwealth v Martin (1985) 5 FCR 351 (FC); see also 9.10. 171. See generally 10.19. 172. Griffiths v Earl of Dudley (1882) 9 QBD 357; Murphy v Culhane [1977] QB 94; [1976] 3 All ER

533 (CA). 173. Nunan v Southern Rly Co [1924] 1 KB 223 (CA); cf Unsworth v Commr for Railways (1958) 101 CLR 73 (statutory limit on defendant’ s liability applied to plaintiff’ s wrongful death claim). 174. Senior v Ward (1859) 1 El & El 385; 120 ER 954; Wright v Midland Rly Co (1884) 51 LT 539; and see Kain and Shelton Ltd v Virgo (1956) 97 CLR 230 at 245 per Fullagar J. 175. Law Reform Act 1995 (Qld) s 10(5); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7(4); Wrongs Act 1954 (Tas) s 4(4); Compensation (Fatal Injuries) Act 1974 (NT) s 11. Because of the different wording employed in the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 4(1), the common law rule continues to apply where the death was caused by a wrong other than negligence. In New South Wales, the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 13(2) provides that no apportionment is to be made in the case of a fatal accident, but that provision has been disapplied by Workers Compensation Act 1987 (NSW) s 151N(5) and Civil Liability Act 2002 (NSW) s 5T(2). 176. Wrongs Act 1958 (Vic) s 26(4); Civil Law (Wrongs) Act 2002 (ACT) s 27. 177. Harding v Lithgow Corp (1937) 57 CLR 186 at 196 per Evatt J; Pickett v British Rail Engineering Ltd [1980] AC 136 at 146-7; [1979] 1 All ER 774 at 780 per Lord Wilberforce; at 152; 787 per Lord Salmon (HL). 178. On the length of the limitation period in these circumstances, see 28.35. 179. NT s 7(2), but see s 10(5) (payment made in pursuance of a judgment or settlement within six months after the accident to be taken into account in assessing the dependant’ s damages). 180. But if the deceased had merely commenced proceedings before death ensued, the family may pursue its separate cause of action after the victim’ s death: Kupke v Corporation of Sisters of Mercy [1996] 1 Qd R 300. 181. This approach was adopted soon after the passing of the original legislation in England, in Blake v Midland Rly Co (1852) 18 QB 93; 118 ER 35, and has been accepted as correct by the High Court: see, eg, Public Trustee v Zoanetti (1945) 70 CLR 266 at 276 per Dixon J; Parker v Commonwealth (1965) 112 CLR 295 at 308 per Windeyer J. 182. For the relevant legislative provisions in these jurisdictions, see 11.42. 183. But if the plaintiff suffers a recognisable psychiatric disorder, going beyond mere grief, at seeing (Hinz v Berry [1970] 2 QB 40; 1 All ER 1074 (CA)) or hearing of (Bassanese v Martin (1982) 31 SASR 461) the death of a loved one, an action lies for pure mental harm: see 7.41. 184. NT s 10(3)(c) (other than for a death on the roads or at work: see 24.3). 185. This action is discussed in 24.3. 186. Reindel v James Hardie & Co Pty Ltd [1994] 1 VR 619. On exemplary damages generally, see 27.10. 187. Davies v Taylor [1974] AC 207 at 213; [1972] 3 All ER 836 at 838-9 per Lord Reid (HL). 188. Parker v Commonwealth (1965) 112 CLR 295 at 308 per Windeyer J. 189. Taff Vale Rly Co v Jenkins [1913] AC 1 (HL); see also Chief Commr for Railways & Tramways (NSW) v Boylson (1915) 19 CLR 505; Kandalla v British European Airways Corp [1981] QB 158; [1980] 1 All ER 341. 190. Barnett v Cohen [1921] 2 KB 461; see also Edwards v Breeze [1964] NSWR 736 (FC) (plaintiff,

son of divorced parents, had received no maintenance from his father in the latter’ s lifetime, hence the chance of prospective advantage from the father regarded as fanciful). 191. Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349; 1 All ER 511; Henry v Perry [1964] VR 174 at 175 (FC). 192. Burgess’s case, fn 191 above; but see Civil Liability Act 1936 (SA) s 61, applied in Lott v Cameron (1983) 35 SASR 61 (FC). 193. Malyon v Plummer [1964] 1 QB 330; [1963] 2 All ER 344 (CA); Henry v Perry [1964] VR 174 (FC); Catanzariti v Steadfast Insurance Co Ltd (1976) 14 SASR 15 (FC); Dwight v Bouchier (2003) 37 MVR 550 (NSWCA) at [51]-[53] per Stein JA. 194. See Wrongs (Dependants) Act 1982 (Vic) ss 3 and 4. 195. SA ss 28-30; NT s 10(3)(f). 196. Cook v Cavenagh (1981) 10 NTR 35; Anderson v Smith (1990) 101 FLR 34. 197. Who may be as young as four at the date of the parent’ s death: Hall v Alice Springs Veterinary Clinic Pty Ltd (1989) 98 FLR 85 at 94 per Asche CJ; see also Anderson v Smith (1990) 101 FLR 34 at 52 per Nader J. 198. Jones v Bleakley (1981) 12 NTR 1. 199. Australian Telecommunications Commn v Parsons (1985) 59 ALR 535 at 545-6 (Fed Ct FC). 200. For examples, see the cases cited in the preceding four footnotes and Preti v Conservation Land Corporation (No 1) (2007) 20 NTLR 97 in which a range of relatives of the deceased were awarded solatium. With the enactment of schemes for no-fault compensation in the Northern Territory for road accidents and work injuries which abrogate the right to sue at common law (see 12.11 and 12.34), the fatal accidents legislation is likely to be of diminishing importance. 201. Jacobs v Varley (1976) 9 ALR 219 (HCA); Heffernan v Occidental Minerals Corp [1978] 2 NSWLR 412 at 418 (CA); State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539 at 547-8; 49 ALR 247 at 253; Australian Telecommunications Commn v Parsons (1985) 59 ALR 535 at 542 (Fed Ct FC). 202. For the legislation in all jurisdictions other than Tasmania, which allows for such an award, see 27.28. 203. State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539; 49 ALR 247. 204. Wright v WA Trustee Executor & Agency Co Ltd [1987] VR 771 (FC); Evans v Anderson [1992] 1 VR 411. 205. Wright v WA Trustee Executor & Agency Co Ltd [1987] VR 771 (FC). 206. Todorovic v Waller (1981) 50 CLR 402; 37 ALR 481. 207. Civil Liability Act 2002 (NSW) s 14 (5%); Workers Compensation Act 1987 (NSW) s 151J (5%); Motor Accidents Compensation Act 1999 (NSW) s 127 (5%). 208. Civil Liability Act 2002 (Tas) s 28A (7%). 209. Wrongs Act 1958 (Vic) s 28I (5%); Accident Compensation Act 1985 (Vic) s 134AB(32) (6%);Transport Accident Act 1986 (Vic) s 93(13) (6%). 210. Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 5 (6%); 211. The statutory prescription of a discount rate in Queensland and South Australia does not apply to fatal accident actions: Gwydir v Peck [1983] 1 Qd R 351 (FC).

212. Motor Accidents Compensation Act 1999 (NSW) s 125; Workers Compensation Act 1987 (NSW) s 151I; Kaplantza v Pascoe (2003) 40 MVR 146 (NSWCA). 213. ACT s 26(3); NSW s 4(1); NT s 10(2); Qld s 64(3); SA s 24(2); Tas s 5; Vic s 17(1); WA s 6(4). 214. See, eg, Wright v Johnson (1980) 25 SASR 595 at 599 per King CJ and NSW Insurance Ministerial Corp v Willis (1995) 35 NSWLR 668 (CA), in which the deceased was the mother of children whose paternity differed and who consequently needed separate care. 215. Gullifer v Pohto [1978] 2 NSWLR 353 at 362-3 (CA); the reasons for a reduction in a claimant’s damages are discussed in 11.49ff. 216. After taking account of possible beneficial or adverse contingencies, as in the case of a personal injury claim: see 11.8. 217. See, eg, Pannell v Fischer [1959] SASR 77 at 79-80 (FC); Parker v Commonwealth (1965) 112 CLR 295 at 310 per Windeyer J; Parsons v Australian Telecommunications Commn (1983) 28 NTR 19 at 28 per Muirhead J, aff’ d (1985) 59 ALR 535 (Fed Ct FC); Lamb v Southern Tablelands County Council (1988) Aust Torts Reports 80-220 at 68,197-9 per Campbell J (NSWSC); Knight v Anderson (1997) 17 WAR 85 (FC). 218. Evans v Anderson [1992] 1 VR 411 at 424-6 per Hedigan J; Axiak v Pezzano (2002) 35 MVR 424 (NSW CA). 219. Hence a discount must be made, on sufficient proof being adduced, to allow for the possibility of the widow dying before the deceased would otherwise have reached retiring age (Evans v Anderson [1992] 1 VR 411 at 427 per Hedigan J); or that the marriage might have broken down: Moore v Limb (1994) Aust Torts Reports 81-295 at 61,577 (NSWCA); Roads & Traffic Authority v Cremona (2001) 35 MVR 190 (NSW CA). 220. Carroll v Purcell (1961) 107 CLR 73; Dominish v Astill [1979] 2 NSWLR 368 (CA); Cowland v Telkesi (2000) 209 LSJS 70 at [25] per Doyle CJ (SAFC). 221. Dominish v Astill [1979] 2 NSWLR 368 at 374 per Reynolds JA (CA); Axiak v Pezzano (2002) 35 MVR 424 (NSWCA); and see Rouse v Shepherd (1994) 35 NSWLR 250; cf Allan v Commonwealth (1980) 24 SASR 581 at 584-5 per Wells J. The widow’s hope that she would in due course have given up paid employment in order to raise a family is also irrelevant: Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 (CA). 222. Williams v Welsh Ambulance Service NHS Trust [2008] EWCA Civ 71. 223. See, eg, Halligan v Drinkwater (1991) 61 SASR 185; Jackson v Reid (1993) Aust Torts Reports 81-213 (SAFC). 224. Tripodi v Leonello (1982) 31 SASR 9 (FC); Budget Rent-a-Car Systems Pty Ltd v Van Der Kemp [1984] 3 NSWLR 303 (CA); Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161; Targett v Targett (1999) 9 Tas R 234; Nicol v Rabbitt (2000) 31 MVR 416 (Qld CA). 225. Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 186 per Samuels JA (CA); Nguyen v Nguyen (No 2) [1992] 1 Qd R 405 (FC). 226. Nistico v Fanning (1990) 54 SASR 6. 227. Halligan v Drinkwater (1991) 61 SASR 185 at 190 per Mullighan J; Jackson v Reid (1993) Aust Torts Reports 81-213 (SA FC). 228. Rouse v Shepherd (1994) 35 NSWLR 250 at 268 per Badgery-Parker J. 229. Workers Compensation Act 1951 (ACT) s 184; Workers Compensation Act 1987 (NSW) s 149(1)(c); Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 270; Workers

Rehabilitation and Compensation Act 1988 (Tas) s 133; Accident Compensation Act 1985 (Vic) s 134AB(25); Workers’ Compensation and Injury Management Act 1981 (WA) s 92. 230. Transport Accident Act 1986 (Vic) s 93(8) and (9); the amount is not indexed to take account of monetary inflation. 231. Thompson v Mandla [1976] 2 NSWLR 307; if the deceased was also partly to blame, the damages awarded to the remainder of the family are (in all jurisdictions other than Vic and the ACT) reduced proportionately: see 11.39. 232. Benjamin v Currie [1958] VR 259 (FC). 233. Public Trustee v Zoanetti (1945) 70 CLR 266 at 276-7 per Dixon J. 234. Tas s 10(1)(b) precludes consideration of up to $250,000 of the value of the deceased’s estate which passes to the family; NT s 10(4)(g) prohibits the consideration of any gains or benefits consequent upon the death. 235. See, eg, Public Trust (WA) v Nickisson (1964) 111 CLR 500; Gullifer v Pohto [1978] 2 NSWLR 353 (CA); the deduction is only of the value of the acceleration, not of the amount of the benefaction. 236. Zordan v Metropolitan (Perth) Passenger Transport Trust [1963] ALR 513 at 516 (HCA); Tripodi v Leonello (1982) 31 SASR 9 at 12-13 (FC); McCullagh v Lawrence [1989] 1 Qd R 163 at 165-6 (FC). The same principle applies in relation to family chattels such as a motor car: Worden v Yeats [1964] SASR 381 at 390 per Hogarth J; Lamb v Southern Tablelands County Council (1988) Aust Torts Reports 80-220 at 68,198-9 per Campbell J (NSWSC). 237. O’Connor v Lloyd [1962] WAR 37; Rowe v Scanlan [1969] 1 NSWR 43 (CA); Halligan v Drinkwater (1991) 61 SASR 185 at 193-4 per Mullighan J. 238. ACT s 26(e); NT s 10(4)(e). 239. ACT s 26(a)-(c); NSW s 3(3); NT s 10(4); Qld s 70; SA s 24(2aa); Tas s 10(1); Vic s 19(1)(a)(c); WA s 5(2). 240. ACT s 26(d); NT s 10(4)(d); Qld s 70(e); SA s 24(2aa)(b); Vic s 19(1)(d). 241. Papowski v Commonwealth [1958] SASR 293; Mockridge v Watson [1960] VR 405 (in both cases, the decisions were given prior to the enactment of the relevant provision referred to in the preceding note, and hence are relevant to those jurisdictions without such statutory provision). 242. See NT s 10(4)(h). 243. In Carroll v Purcell (1961) 107 CLR 73 at 79 the rule was regarded as so well established as no longer to require justification. 244. (2002) 212 CLR 338; 193 ALR 130. 245. De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 at [77] per Gaudron, Gummow and Hayne JJ, at [137] per Kirby J. For an example of such a situation, see AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591 (CA); cf Oldfield v Dabrowski (Fed Ct FC, on appeal from ACTSC, 20 August 1982, unreported) (second husband found to be unable to make any substantial contribution to the household). 246. De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 at [46] and [77] per Gaudron, Gummow and Hayne JJ, at [166] per Kirby J. 247. Qld s 67. 248. Vic s 19(2).

249. Civil Law (Wrongs) Act 2002 (ACT) Pt 2.4; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Pt 2; Law Reform (Miscellaneous Provisions) Act 1956 (NT) Pt II; Succession Act 1981 (Qld) s 66; Survival of Causes of Action Act 1940 (SA); Administration and Probate Act 1935 (Tas) s 27; Administration and Probate Act 1958 (Vic) s 29; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4; Law Reform Act 1936 (NZ) Pt 1. 250. ACT s 15(2); NSW s 2(1); NT s 5(2); Qld s 66(1); SA s 2(2); Vic s 29(1); WA s 4(1); NZ s 3(1). The Australian provisions (other than in Qld, Tas and the ACT) also exclude the survival of actions for damages for adultery, but this action was abolished by the Family Law Act 1975 (Cth) s 120; the New Zealand enactment still exempts from survival the action for inducement, despite its abolition by the Family Proceedings Act 1980 (NZ) s 190. 251. Including, by force of the Australian Consumer Law s 145, death resulting from the defective manufacture of consumer goods, for which the manufacturer is liable under Pt 3-5 of that Law. 252. As distinct from non-pecuniary harm: see 11.55, 11.56. 253. Curator of Deceased Estates v Fernandez (1977) 16 ALR 445 at 449 per Ward J (NTSC); see also Fitch v Hyde-Cates (1982) 150 CLR 482 at 493-4; 39 ALR 581 at 589 per Mason J. The amount is subject to a set-off for any workers’ compensation benefits which the victim may have received: CSR Ltd v Heys (1989) 1 WAR 294. 254. Sellick v De Young [1955] SASR 191. The fatal accidents legislation in all jurisdictions other than NSW, Qld and Vic allows for medical expenses to be recovered if they were incurred by the dependants. 255. Harper v Phillips [1985] WAR 100 (FC). 256. Talbot & Oliver v Whitcombe (2006) 32 WAR 179 at [37] per Steytler P, at [54] per Pullin JA (WACA). 257. See 27.10. 258. ACT s 16(2); NSW s 2(2)(a)(i); NT s 6(1)(a); Qld s 66(2)(b); SA s 3(1)(b); Tas s 27(3)(a); Vic s 29(2)(a); WA s 4(2)(a); NZ s 3(2)(a); see Hartley Poynton Ltd v Ali (2005) 11 VR 568 (CA). The Australian legislation (other than in the ACT) also imposes limits on the damages that may be recovered in an action for breach of promise of marriage, but that action was abolished by the Marriage Act 1961 (Cth) s 111A. 259. Common Law Practice Act Amendment Act 1972 (Qld). 260. For the background behind this legislation see Workcover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; 271 ALR 203 at [39]-[46] per French CJ, Gummow, Crennan, Kiefel and Bell JJ. 261. Law Reform Amendment Act 1996 (NZ). 262. ACT s 16(3)(a); NSW s 2(2)(c); NT s 6(1)(c)(i); Qld s 66(2)(d)(i); SA s 3(1)(d); Tas s 27(3)(c)(i); Vic s 29(2)(c)(i); WA s 4(2)(c); NZ s 3(2)(c). 263. Gammell v Wilson [1982] AC 27 at 47; [1980] 2 All ER 557 at 571-2 per Brandon LJ (CA), referred to with approval in Fitch v Hyde-Cates (1982) 150 CLR 482 at 491; 39 ALR 581 at 587 per Mason J; cf Smith v Mackrill [1978] Qd R 403. 264. Rose v Ford [1937] AC 826 at 842; 3 All ER 359 at 368 per Lord Wright (HL), also referred to in Fitch v Hyde-Cates (1982) 150 CLR 482. 265. ACT s 16(3)(b)(i); NSW s 2(2)(d); NT s 6(1)(c)(ii); Tas s 27(3)(c)(ii); Vic s 29(2)(c)(ii); NZ s 3(2)(c). 266. Civil Law (Wrongs) Act 2002 (ACT) s 25(4)(a), the predecessor of which was considered in

Cunningham v Nominal Defendant (1970) 17 FLR 61 (ACTSC); Compensation to Relatives Act 1897 (NSW) s 3(2), considered in Edwards v Breeze [1964] NSWR 736 (FC); Compensation (Fatal Injuries) Act 1974 (NT) s 10(3)(a); Civil Liability Act 1936 (SA) s 24(2a); Fatal Accidents Act 1934 (Tas) s 10(2); Fatal Accidents Act 1959 (WA) s 5(1). 267. ACT s 17; NSW s 2(4); NT s 8; Qld s 66(3); SA s 5; Tas s 27(4); Vic s 29(4); WA s 4(4); see Partridge v Chick (1951) 84 CLR 611; Gronow v State Government Insurance Office (Qld) [1980] Qd R 425.

[page 405]

CHAPTER 12 Alternative Sources of Compensation for Personal Injuries

12.1 Although the award of damages, in accordance with the principles discussed in the preceding chapter, is a major source of compensation for a seriously injured victim, it is by no means the only one. This chapter discusses briefly some of the other means by which a person in Australia may receive financial support for losses suffered as a result of personal injury. While each of the schemes referred to is available to one who has been injured as the result of another’s negligence, they can also be availed of by those who would be unable to rely on the law of torts. The philosophy behind much of the legislation is that those who have suffered an injury deserve at least a measure of financial support from the state. It has also been recognised that the law of negligence is not equal to the task of providing compensation. Among the perceived shortcomings of the common law are the need to prove that another was at fault for the injury, the fact that the plaintiff may have been contributorily negligent, and consequently suffer a diminution in damages, and the fact that damages are payable only in a lump sum. The statutory schemes remove the need to prove fault, are not affected by the contributory negligence of a victim, and generally provide for the payment of benefits periodically. However, it has also been felt necessary to contain the overall cost to society of accidents. Hence the benefits payable under the schemes discussed in this chapter, while being available to a wider range of people than those who might succeed in a negligence action, are generally less in amount than might be recovered at common law for a similar injury. The chapter concludes with a consideration of the comprehensive accident compensation scheme which has been operating in New Zealand since 1974.

Social Security 12.2 The most comprehensive scheme for providing a bare minimum of financial support for those who are injured is that available under the Social Security Act 1991 (Cth). It is comprehensive in that it provides assistance for any person who is unable (either temporarily or permanently) to earn a living, whatever the cause of the incapacity. Whether a person is incapacitated for a brief period as a result of an accident, or suffers from a congenital mental disorder that renders him or her permanently incapacitated for work, there is a right to seek a pension [page 406] or benefit under the Act. The legislation, when originally enacted as the Social Services Consolidation Act 1947, was a means of bringing together in one statute the various Acts which had, during World War II, introduced such federally funded benefits as children’s endowments, widows’ pensions and support for sickness or unemployment. The legislation now provides for a wide variety of pensions, benefits and allowances, including age pensions, carer pensions, family payment and child disability allowances. The principal ones that cover much the same ground as an award of damages for personal injury or death are the disability support pension, sickness allowance and widowed person allowance.

12.3 The disability support pension may be claimed by an Australian resident who has a continuing inability to work or is permanently blind,1 and is over 16 years of age and less than 65.2 A person is regarded as having a continuing inability to work if he or she has a physical, intellectual or psychiatric impairment of whatever aetiology which is of 20 per cent or more under the Impairment Tables scheduled to the Act, and which prevents the person from doing his or her usual work for at least two years.3 The amount of the pension is, in most circumstances, approximately $755 per fortnight for a single person, and $570 if a member of a couple, in money values of 2012,4 with provision for the indexation of that amount to allow for subsequent monetary inflation.5 The pension may be increased if the rent payable for

accommodation is greater than a statutorily fixed sum. The pension is also subject to reduction on a graduated scale depending on the pensioner’s income from other sources or the net worth of his or her assets (excluding the value of the home).6

12.4 A sickness allowance is payable to an Australian resident who is between the ages of 21 and 65 and is temporarily incapacitated for work by reason of sickness or accident, provided that the incapacity has caused a loss of salary or wages.7 The benefit is, therefore, not available while the person is receiving occupational sick pay. The rate of allowance is approximately $490 a fortnight for a single person, and $440 a fortnight for a member of a couple, in money values of 2012,8 but these amounts are indexed to take account of monetary inflation.9 The benefit may be increased if the beneficiary has dependent children, and assistance is also available if the rent payable for accommodation exceeds a specified amount. The benefit is subject to a progressive reduction, depending upon the combined income of the beneficiary and his or her spouse (which includes a de facto spouse).10 [page 407]

12.5 An Australian resident whose partner dies may claim a bereavement allowance while he or she remains single.11 The partnership which has been terminated by death may have been either a legal marriage or a de facto union.12 The rate of allowance is, in general, the same as that of a disability support pension, and is subject to the same reductions depending on the claimant’s income or the net worth of his or her assets.13

12.6 It is the policy of the Commonwealth Government to see that the social security system does not subsidise those who provide the funds for the compensation of road, industrial and other accident victims. Hence, the Social Security Act Pt 3.14 provides that many of the pensions and benefits available thereunder shall be reduced by the amount of any periodical payment of compensation received by the beneficiary, and that the total of the pension or benefit received shall be repaid out of a lump sum award of compensation.

Workers’ Compensation 12.7 Second only to the social security system in the range of persons and types of disability for which financial relief is available is the legislation providing compensation for industrial injuries and diseases. During the nineteenth century in England, persons injured at their place of work faced grave difficulties in succeeding in an action against their employer in negligence, as the employee was likely to be met with any of the three defences of volenti non fit injuria, contributory negligence, or common employment. In an attempt to remedy this situation, and place the cost of industrial accidents on the employer, the British Parliament passed a Workmen’s Compensation Act in 1897, which allowed an injured employee to recover compensation without the need to prove fault on the part of anyone else.14 This legislation was adopted as a model for similar statutes passed by the states (and by the Commonwealth in respect of persons in the service of that government and in respect of some seafarers) between 1911 and 1918, and in due course in the territories. During the 1980s most of the legislatures enacted new statutes, which make express provision for the rehabilitation of persons suffering from industrial accidents and diseases, as well as for compensation for the losses suffered. There are 10 statutes in force in Australia in this field — one in each of the states and territories, one relating to employees of the Commonwealth and its instrumentalities, and one covering seafarers on ships engaged in international or interstate trade.15 In view of the diversity of the legislation, it is not possible to give any more than a broad conspectus of the effect of the various statutes. [page 408]

12.8 The persons covered by the legislation are, in general terms, those who are regularly employed under a contract of service and those undergoing apprenticeship. Some of the statutes expressly include within that class members of the police force,16 and other public officials including, in Victoria and Western Australia, judges and Members of Parliament.17 Apart

from South Australia, the legislation does not apply to the self-employed, although, in the absence of provision to the contrary,18 it does cover a person employed by a company, even when that person manages the company and owns all but one of the shares therein.19 Such employees may recover compensation not only for physical injury but also for disease contracted as a result of the employment or where the aggravation or acceleration of a disease results from that employment.20 The legislation covering Commonwealth Government employees and interstate seafarers, and that in New South Wales, South Australia, Victoria and the two territories, also makes provision for compensation of mental suffering as well as physical injury.

12.9 For an injury to be compensable, it must have arisen, in the phrase used in all the legislation, ‘out of or in the course of the employment’.21 That is, there must be either a causal or a temporal link between the injury and the employment, although the temporal link has been extended by specific provision to include an injury suffered while travelling to and from the place of employment.22 Each of the statutes other than those in South Australia and Western Australia prohibits recovery for deliberately self-inflicted injuries.23 If the disability complained of is a disease, or its aggravation or acceleration, a causal link must be shown between that disability and the employment.

12.10

The benefits payable under the legislation include: periodical payments to compensate for a loss of earnings caused by the disability; a lump sum payment either to compensate for the loss of use of a particular bodily function or to recompense for the pain suffered as a result of the injury; death benefits payable to an employee’s dependants; and the amount of hospital and medical expenses incurred. The amount of such benefits varies widely depending on the legislation concerned;24 the general pattern with regard to periodical payments for incapacity to work is to provide compensation for an initial period (ranging from six to 12 months) of the [page 409] amount of the employee’s pre-accident average weekly earnings, and thereafter of a reduced proportion of that amount.

12.11 The statutes make varying provision as to the right of employees to take an action at common law. So far as concerns an action against the employer, the legislation in the Northern Territory has barred the right altogether,25 that in South Australia permits a right of action, but only for liability arising out of the use of a motor vehicle,26 that in Queensland makes any right to seek damages conditional upon the worker satisfying a variety of conditions,27 that in New South Wales, Victoria and Western Australia places restrictions on the damages available at common law,28 and a Commonwealth employee or interstate seafarer is unable to sue at common law for economic loss, and is required to elect irrevocably between pursuing a common law claim for non-economic loss or receiving lump sum compensation under the relevant Act for impairment of bodily functions, pain and suffering and other non-economic loss.29 The legislation also seeks to ensure that an injured employee does not gain a double benefit, and provides that damages awarded in a common law action shall be reduced by the amount of compensation paid or payable under the respective statutes.30 All the statutes permit the employee to take action against a third party — such as the driver of a motor vehicle by whose negligence the employee is injured on the way to or from work — but seek to prevent the recovery of damages for a loss already compensated for under the legislation.31

Criminal Injuries Compensation 12.12 As comprehensive as the workers’ compensation legislation, in the sense that special statutory schemes are in force in all the states and territories of Australia, is the legislation providing for the compensation, from government funds, of those who have suffered personal injury as the result of a crime or the dependants of a person killed by another’s criminal act. The first country in the British Commonwealth to introduce such a scheme was New Zealand,32 but the Act has been overtaken in that country by the allembracing accident compensation legislation, discussed in 12.43ff. The legislation in all the Australian jurisdictions follows broadly the same pattern, in providing for the victim of a crime to make application for compensation in proceedings separate from the criminal trial.33 The reason for such schemes lies no doubt largely in the fact that

[page 410] a criminal offender would often be unable personally to satisfy a civil judgment given against him or her, and any relevant insurance that may have been taken out does not, as a matter of public policy, extend to cover the consequences of one’s criminal acts.34 The essence of the right to claim under the legislation is that a victim has suffered personal injury as the result of the commission by another of a crime or that dependants of a victim of crime have suffered financial loss because of the killing of the victim.35 However, this core provision has been extended in a number of ways in most jurisdictions.

12.13 In all jurisdictions, a claimant is entitled to recover compensation even though the offender has not been found, or not prosecuted.36 Thus, if a person murders another and then commits suicide, the dependants of the victim may recover recompense for their financial loss.37 Or, if the offender is found not to be criminally liable on account of insanity or lack of age, most of the statutes make express provision that this will not bar the right to claim compensation.38 Where the offender has not been convicted, the claimant need show only on the civil standard of the balance of probabilities, and not to the criminal standard of proof beyond reasonable doubt, that the injuries or death were caused by a criminal act.39

12.14 A further extension of the scope of the legislation is that, in all jurisdictions other than South Australia and Western Australia, compensation may be recovered by those who are injured in the course of preventing the commission of an offence or assisting in the arrest of an offender.40

12.15 For the purposes of the legislation, ‘injury’ includes not only actual bodily harm but also mental disorder, nervous shock and pregnancy.41 The statutory schemes require no more than a causal connection between the criminal act and the injury, and not, for instance, that the injury was a reasonably foreseeable consequence of the commission of the offence.42 Hence, a claimant may recover for the nervous shock suffered by hearing of the death or injury of a close relative, even though no physical violence is done to the claimant.43 Generally speaking, the only

[page 411] property damage which is compensable is in respect of personal effects,44 but even that head of damage is not available in Queensland or South Australia. The reason for this limitation or exclusion of recovery is, no doubt, that the victim is likely to carry insurance for other types of property damage.

12.16 Each of the statutory schemes specifies a maximum amount of compensation, ranging from $40,000 to $75,000.45 But there is judicial consensus that these provisions do no more than impose a jurisdictional limit. The claimant’s damages are generally46 assessed as they would be in an action in tort, and it is only if the amount thus arrived at is greater than the statutory limit that it is reduced to that maximum sum.47 Although the criminal act for which compensation is sought might, in a civil action, merit the award of exemplary or aggravated damages (see 27.7), legislation in Tasmania excludes the recovery of such damages;48 in South Australia it has been held that the victim may recover aggravated damages but not exemplary.49

12.17 If the victim of the offence has been killed, the dependants or close relatives of the victim are entitled to recover for the financial harm thereby suffered,50 the damages being assessed in much the same way as under the fatal accidents legislation: see 11.43. In South Australia, the spouse or parent of the victim of a homicide is also entitled to claim for the grief suffered, subject to the same monetary limits as in the fatal accidents legislation of that state.51

12.18 The amount of compensation may, in all jurisdictions, be reduced, or compensation denied altogether,52 to take account of any conduct or behaviour on the part of the victim which directly or indirectly contributed to the injury.53 In Western Australia, a prior relationship between victim and offender precludes the making of an award from which the offender might benefit.54 Such a provision is, [page 412]

unfortunately, likely to militate against recovery by victims of domestic violence.55 The failure on the part of the victim promptly to report the crime, or assist the police in apprehending the offender, is a matter to be taken into account in assessing compensation in New South Wales,56 and prevents recovery in the other jurisdictions.57

12.19 Each of the statutory schemes seeks to ensure that they provide remedies of last resort. Hence, an award of compensation thereunder is, in all jurisdictions other than Queensland,58 reduced by the amount of compensation that the victim has received, or would be likely to receive, from other sources such as workers’ compensation, the victim’s own insurance, or an award of damages in a civil action against the offender.59 And, once compensation has been paid to the victim, the government is given the right to seek reimbursement of that money from the offender,60 or from any amounts received by the victim as compensation from other sources, to the extent to which these amounts have not been taken into account in determining the victim’s compensation under the statutory scheme.61

No-fault Transport Accident Compensation Schemes 12.20 There are four statutory schemes in operation in Australia for the payment of compensation for injury or death resulting from a transport accident; the payments are made regardless of whether anyone would have been liable in negligence for the accident. These schemes have been established by legislation in Victoria, Tasmania, the Northern Territory and New South Wales. Those in Victoria, Tasmania and New South Wales are in addition to claims that an injured person might make at common law, while the Northern Territory scheme is in substitution, the legislation there having abolished the right to sue for damages for a road accident.

Victoria 12.21 Victoria first introduced a no-fault compensation scheme for the victims of road accidents in 1973. It allowed for the payment of hospital and medical costs, but recompense for loss of earning capacity was limited to a maximum of $20,800.62 That scheme has been replaced by the Transport

Accident Act 1986. The benefits provided thereby are available in respect of all transport accidents that occur in Victoria and those which occur elsewhere in the country if the victim was a resident of that state, or the driver of or passenger in a vehicle registered there.63 The benefits [page 413] available include recompense for total or partial loss of earnings (including recompense for loss of dependency if the victim dies as a result of the accident), an impairment benefit to compensate for the loss of use of bodily functions, and the cost of medical, hospital and like services.

12.22 If the victim has suffered a total loss of earning capacity, he or she is entitled to be paid 80 per cent of the pre-accident earnings, subject to minimum and maximum limits,64 for the first 18 months after the accident.65 At or about that time, the Transport Accident Commission must review the victim’s eligibility,66 and, if found still to suffer a total loss of earning capacity, he or she is entitled to receive 80 per cent of the pre-accident earnings (adjusted annually to take account of general rises in wage rates)67 subject to minimum and maximum limits somewhat lower than those for the first 18 months.68 If the victim is still able to engage in paid employment after the accident, but has suffered a partial loss of earning capacity, he or she is entitled to receive 85 per cent of the difference between pre- and postaccident earnings,69 but in other respects the benefits to recompense for partial loss of earning capacity follow the same pattern as for compensation for a total loss. Benefits for loss of earning capacity cease on the victim’s attaining the age of 65, or other normal retiring age for persons in that occupation.70

12.23 Irrespective of whether the victim has suffered any diminution in earning capacity as a result of a road accident, he or she is entitled to receive benefits for any impairment of bodily functions, such as the loss of a limb or part thereof. The benefits may be paid either as a lump sum or (if the victim so requests) partly as a lump sum and partly by way of periodic payments.71

12.24 If the victim of the road accident dies as a result thereof, the surviving spouse is entitled to receive a death benefit, being a lump sum the

amount of which depends upon the age of the deceased,72 and weekly payments, for the period of five years after the death, equal to 80 per cent of the deceased’s earnings, subject to minimum and maximum limits.73 If both parents die, or if the deceased had dependent children but not a dependent spouse, the children are entitled to both a death benefit and weekly payments until they attain the age of 16.74 [page 414]

12.25 Both the victim and the dependants may be denied any benefits if the accident causing the injury was not reported to the police.75 A victim (but not the dependants) is also precluded from receiving impairment benefits and compensation for loss of earning capacity after the first 18 months if he or she was the driver of the vehicle at the time that the injury was suffered, and has been convicted of certain criminal offences in relation thereto, including driving with an excessive concentration of alcohol in the bloodstream.76 A victim may, further, be precluded from receiving some or all of the compensation for lost earnings for the first 18 months if he or she was driving with more than the prescribed blood alcohol concentration.77

12.26 It has already been mentioned that the Victorian scheme is in addition to,78 and not in substitution for, the right to claim damages at common law. However, while the Act permits a common law claim, it places limits on the damages that may be awarded.79 The only circumstances in which a plaintiff might be better served by pursuing a claim in the courts are those in which he or she has undergone pain and suffering to a considerable degree, and those in which the lost earning capacity exceeds the maximum payable under the Act.80

Tasmania 12.27 The Tasmanian motor accident compensation scheme, established by the Motor Accidents (Liabilities and Compensation) Act 1973, is more limited than that established in Victoria. Benefits are payable if the victim is a resident of Tasmania and the

accident occurred in that state or involved a motor vehicle registered there.81 If the victim was not a resident of the state, benefits are payable if the accident occurred in the state and involved a motor vehicle registered there.82 The benefits are: a disability allowance; death and funeral benefits; and the payment of hospital and medical expenses incurred as a result of the accident.

12.28 If the victim was in employment, and is injured as a result of the accident, he or she is entitled to receive up to 80 per cent of the pre-accident earnings83 during the first two years after the accident, for so long as the victim is ‘wholly disabled from engaging in his usual employment or occupation’.84 Any earnings received from other employment go in reduction of this allowance.85 For the next three years, the [page 415] victim is entitled to continue to receive up to 80 per cent of the pre-accident earnings for so long as he or she is ‘wholly disabled from engaging in any employment or occupation for which he would otherwise be reasonably suited’.86 If the victim is merely partially disabled from engaging in suitable employment, he or she is entitled to no compensation after the first two years and in any case no compensation is payable beyond five years from the accident.

12.29 A victim who, prior to the accident, was engaged in household duties, and is wholly disabled from carrying out those duties as a result of the accident, is entitled to recover the cost of substitute household services, up to a maximum of $250 a week, for a period of up to nine months after the accident.87

12.30 An injured victim is also able to recover for the medical and hospital expenses incurred as a result of the accident, and the costs of training or care for the purposes of rehabilitation, up to a maximum for all medical expenses and benefits and disability allowances of $400,000.88

12.31 If the victim dies as a result of the accident, a surviving dependant is entitled to receive a lump sum payment of $62,000, that sum being increased to take account of any dependent children.89 The family is also entitled to

recover the reasonable costs of the burial or cremation of the deceased, subject to a maximum limit.90

12.32 Benefits under the Act are excluded, for both the victim and dependants, if the injury or death was deliberately self-inflicted, was suffered by a participant in a motor race, or arose out of the use of the motor vehicle in the furtherance of a crime of violence or dishonesty.91 Disability allowances, and the payment of medical and hospital costs, are not available if the victim is convicted of various criminal offences (including driving with more than the prescribed blood alcohol level) or did not hold a driver’s licence.92

12.33 The compensation scheme is in addition to any claim a person may have for damages at common law. If damages are awarded (or the action is settled), the amount of any benefits received under the Act is to be taken to be payment towards the total of the damages.93 The scheme is also subsidiary to that established under the workers’ compensation legislation, so that benefits under the motor accidents scheme are not available to a victim or dependants if either also has a right to benefits under the workers’ compensation legislation.94 [page 416]

Northern Territory 12.34

The Northern Territory no-fault motor accident compensation scheme was established by the Motor Accidents (Compensation) Act 1979. It provides income support, related to the average level of earnings in the territory, for losses resulting from motor vehicle accidents. The scheme, unlike the other two previously discussed, replaces the right of residents of the territory to sue for damages at common law.95 Benefits are available to anyone who is injured or dies as a result of a motor accident96 that occurred in the territory, or to residents of the territory whose injury or death (wherever in Australia it occurred) arose out of the use of a vehicle registered there.97 The benefits are compensation for loss of earning capacity, a lump sum payment to the dependants of a deceased

victim, and the provision of hospital and medical costs.

12.35 If the victim was injured as a result of the accident, he or she is entitled to be compensated to the extent to which earning capacity is thereby diminished, up to a maximum of 85 per cent of average weekly earnings of wage earners in the territory.98 The Act refers to a loss of earning capacity and not a loss of earnings, so that benefits are available even though the victim had not, prior to the accident, exercised a capacity to earn.99 There is also provision for a reduced level of income support for those aged between 15 and 20 who had not fully exercised their earning capacity at the time of the accident.100 In addition to income support, the victim of an accident is entitled to receive a lump sum payment for loss or impairment of bodily functions.101 An injured victim is also entitled to recover the cost of medical and rehabilitation expenses incurred as a result of the accident,102 the cost of attendant care expenses either on a short-term103 or long-term basis,104 and the reasonable cost of providing special facilities for the victim, making necessary alterations to the house and the like.105

12.36 If the victim of the accident dies, the surviving spouse and dependent children are entitled to receive a lump sum benefit,106 and dependent children are, in addition, entitled to a weekly benefit of 10 per cent of average weekly earnings per child.107 [page 417] Funeral benefits are also payable,108 as is a lump sum benefit if either of the parents were dependent upon, and lived with, the deceased.109

12.37 The person injured in an accident is not entitled to either income support or compensation for loss or impairment of bodily functions for a number of reasons, including if he or she was the driver and was either under the influence of alcohol or has been convicted of various criminal offences, if the Board of the Territory Insurance Office is of the opinion that the influence of alcohol or the manner of driving giving rise to the offence substantially contributed to the accident.110 A driver is also disqualified from

those benefits by not holding a driver’s licence when the accident occurred.111 The motor accidents scheme is intended to be supplementary to the workers’ compensation scheme, so that benefits in respect of either injury or death are not payable under the former if they would be payable under the latter.112

New South Wales 12.38 Rather more limited than the schemes described in the preceding pages is that established under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). It applies only in respect of injuries suffered as a result of a motor accident that occurred in New South Wales,113 but applies whether or not the injury was caused by the fault of any person.114 It is further limited in that it applies only to those who have suffered a spinal cord injury, moderate to severe brain injury, multiple amputations, severe burns or permanent blindness.115 The benefits available under this scheme are all the reasonable expenses incurred by the injured person, together with his or her reasonable care needs, as assessed by the Lifetime Care and Support Authority,116 and include medical and dental treatment, rehabilitation, respite care, home and transport modifications, and such other treatment and care needs as may be prescribed by regulations.117

12.39 It is to be regretted that this scheme is no more than supplementary to actions at common law for injury caused by negligence on the roads. Thus, an injured person is still entitled to take proceedings at common law against an allegedly negligent person; the only consequence of such a course of action is that the injured person becomes ineligible to receive benefits under the statutory scheme if he or she has been awarded damages for future economic loss in respect of his or her treatment and care needs.118 And the Lifetime Care and Support Authority is entitled to take proceedings to recover the present value of its liability to provide [page 418] treatment and care to a particular injured person, if the injury was caused by the fault of the driver of an interstate vehicle. Such proceedings may be taken

against the insurer under a policy of compulsory third-party personal injury insurance or against the entity administering a compulsory motor vehicle accident compensation scheme. Any amount claimed under such an action is subject to reduction if the injury was partly the fault of the person receiving the benefits under this statutory scheme.119 The authority is also entitled to take proceedings against any other person whose fault caused an injury for which it is liable to provide treatment and care; the purpose of such proceedings being to recover the present value of that liability.120

Compensation for Death or Injury from Civil Aviation Operations 12.40

The Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, concluded in 1929, together with various amendments subsequently agreed to, the most recent of which was done at Montreal in 1999, provides a scheme of no-fault compensation for ‘damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.121 The convention has been given the force of law in Australia by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 25K. It applies to all international carriage between the territories of any two of the parties to the convention.122 These provisions are supplemented by Pt IV of that Act, which provides similar nofault compensation for flights within Australia, whether between one state and another state, between a territory and any other part of the country or within a territory,123 while legislation enacted in each of the states applies the relevant provisions of the federal legislation to intra-state flights.124 In the case of domestic travel, compensation is provided for ‘damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.125 The legislation applies to any flight, including one for recreational purposes in a glider126 or a hot-air balloon.127 [page 419]

12.41 For both international and domestic travel, the liability of the aircraft operator is in substitution for any other liability which it might have been under.128 But that liability is subject to a limitation period of two years running from the date of the arrival of the aircraft at its destination, or the date when it ought to have arrived, or the date when the carriage stopped, whichever is later.129 That liability is also subject to some monetary limits. In the cases of international travel, there is a limit of 100,000 Special Drawing Rights130 without the need for the passenger to prove that the carrier was at fault, but the carrier’s liability is unlimited, unless it can prove that the damage was not caused by the negligence or other wrongful act or omission of the carrier, it servants or agents, or of a third party.131 For domestic travel, the limit is $500,000.132

12.42 In the case of a passenger’s death, the liability is enforceable for the benefit of those members of his or her family who have suffered damage because of the death,133 and is similar to the action for death of a family member discussed in 11.32ff, with the exception that, in the case of air travel, the assessment of damages ‘is not limited to the financial loss resulting from the death of the passenger’.134 In assessing damages in the case of either death or injury, no account is to be taken of any money paid or payable under an insurance policy, superannuation scheme, pension or social security benefit, or the like.135 However, damages are to be reduced on account of the passenger’s contributory negligence.136 A passenger who suffers deep vein thrombosis as a result of a flight cannot claim compensation under this legislation, as the injury is not the result of an ‘accident’, as is required by the terms of the Warsaw Convention.137 Similarly, a passenger whose injury is caused by slipping or other contact with the aircraft in its normal state has not suffered an ‘accident’ for these purposes,138 but an unusual and unexpected event, external to the passenger, may well come within the legislative requirement.139 And a passenger on an international flight who, as a result of an accident during the flight, suffers a psychiatric disorder unrelated to neurological or other physical injury cannot recover under the convention, because that has been held not to be the ‘bodily injury’ to the compensation of which the convention is limited.140 However, [page 420]

a passenger on a domestic flight may recover for purely psychiatric damage suffered on the flight; the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 38 provides for compensation for ‘personal injury’ not ‘bodily injury’.141

Comprehensive Accident Compensation in New Zealand142 12.43 In 1972, New Zealand replaced the diverse provisions for the compensation of accidental injury or death available at common law, or under the workers’ compensation or criminal injuries compensation legislation, with an all-embracing scheme for the compensation of such injury or death. That was achieved by the passing of the Accident Compensation Act 1972, which came into force on 1 April 1974. After eight years of the operation of that scheme, it was refined and modified slightly in the Accident Compensation Act 1982, which commenced operation on 1 April 1983. In 1987, the Minister for Justice requested the New Zealand Law Commission to review the operation of the 1982 Act. The commission recommended an extension of the scheme by stages so that it would eventually include benefits for sickness and congenital disability,143 but that recommendation has not been acted on by the New Zealand Government. The 1982 Act was replaced by the Accident Rehabilitation and Compensation Insurance Act 1992, which was described144 as bringing about a change ‘from a more generous to a less generous compensation scheme’, in that there were some types of personal injury which were covered under the previous legislation but not under the 1992 statute. The 1992 legislation was, in turn, replaced by the Accident Insurance Act 1998, which introduced a measure of participation by private enterprise in the provision of benefits.

12.44

That Act was replaced, as from 1 April 2002, by the Injury Prevention, Rehabilitation and Compensation Act 2001, which has subsequently been renamed the Accident Compensation Act 2001. The stated purpose of this legislation is ‘to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community’.145

The Act abolishes the right to sue at common law for compensatory damages146 in respect of any personal injury for which the legislation provides compensation.147 The legislation is based largely on the Report of the Royal Commission on Compensation for Personal Injury and, as recommended in that report, is founded on five principles: [page 421] community responsibility; comprehensive entitlement; complete rehabilitation; real compensation; and administrative efficiency. In furtherance of these principles, those who suffer personal injury in New Zealand are entitled to the replacement of the greater part of the earning capacity they have lost as a result of the injury, or to receive periodical compensation for the death of the breadwinner. The scheme also provides for the payment of hospital, medical, dental and similar costs arising from the injury. These benefits are available regardless of an absence of fault on the part of the person causing the injury, and regardless of the fault of the victim. The scheme is funded by levies payable by employers, in respect of their workforce, and by the self-employed, which seek to cover the cost of workrelated injuries. It is also funded by levies payable by the owners of motor vehicles to fund the cost of road accidents, levies payable by registered health professionals to fund the cost of injuries suffered as a result of treatment by such a professional, and levies payable by earners to fund the cost of injuries not covered by any of the previously mentioned categories. Money is also appropriated from consolidated revenue to support the cost of compensation and rehabilitation for injuries not provided for in the above categories.148 The scheme is administered by the Accident Compensation Corporation.

12.45 The Act provides for the benefits to be payable in respect of ‘personal injury in New Zealand’, which is the result of an accident to the person concerned, or is caused by a work-related gradual process, disease or infection, or is the result of medical treatment.149 Personal injury is defined150 as meaning death or physical injury, and extends to mental harm if that harm is an outcome of physical injury suffered by that person or of one of a restricted list of criminal offences151 committed against the person

seeking compensation. And, by an amendment in 2008, a person who suffers mental injury by reason of their exposure to a sudden traumatic event in the course of employment is also covered by the Act.152 But it has been held that pregnancy is not ‘physical injury’ for the purposes of the Act,153 with the consequence that a woman who goes through an unwanted pregnancy as a result of the carelessness of her medical practitioner would not be prevented from bringing a common law action such as that pursued in Cattanach v Melchior.154 In order to be covered by the Act, the personal injury must, with some exceptions, have been caused by an accident, that word also being closely defined. An accident, for these purposes, includes a ‘specific event or series of events that involves the application of force (including gravity) or resistance external to the human body’, and the inhalation or ingestion of a foreign object on a specific occasion;155 further limbs of the definition confine the notion of an accident to effects which have occurred within a defined period or on a specific occasion. [page 422]

12.46 One of the exceptions to the need to show that an injury was brought about by an accident is if the injury is ‘caused by gradual process, disease, or infection’ and is related to or arises out of and in the course of employment.156 Such a cause will have been demonstrated only if the employee’s work, or the working environment, had a particular and peculiar property or characteristic which significantly increased the risk of that gradual process, disease or infection.157

12.47 The other circumstance in which a compensable injury need not arise from an accident is if the injury is suffered by a person seeking or receiving treatment from or at the direction of a registered health professional, which is caused by that treatment.158 It has been observed that ‘all adverse medical events resulting in injury, preventable and unpreventable, are potentially covered’.159 Heart attacks and strokes are covered, if they are the result of medical treatment or abnormal physical effort or strain in the course of employment.160

The scheme applies to all persons who suffer personal injury in New Zealand, whether residents or not,161 but the only benefit available to visitors is cover for the cost of medical, hospital and other similar treatment. For those who are employed in New Zealand, the principal benefit is compensation for loss of earnings, payable either to the injured person or, if the accident should be fatal, to the surviving dependants.

12.48 If a person is incapacitated by a work injury, the employer is obliged to pay 80 per cent of the earnings thereby lost by the employee in the first seven days after the accident.162 Everyone who suffers a loss of earnings as a result of an injury for longer than seven days is entitled to be compensated for that loss by the corporation; the amount of the compensation is, in the first instance, 80 per cent of the earnings lost,163 but this is subject to abatement if the victim is able to engage in paid employment.164 The compensation is also subject to a maximum165 and minimum166 rate. Those who are injured and incapacitated before entering the workforce are entitled to compensation for loss of potential earning capacity, at a rate equal to the minimum available for one who was in employment at the time of the injury.167 A victim of personal injury is also entitled to a lump sum payment for [page 423] permanent impairment,168 which is subject to a minimum169 and maximum170 limit. The Act obliges the Accident Compensation Corporation to provide both social171 and vocational172 rehabilitation, in order to assist an injured person to achieve an appropriate quality of life.

12.49 If the victim dies as a result of the injuries received, a surviving spouse is entitled to up to 60 per cent of the compensation which the victim would have received, for the period of five years from the death or until the survivor no longer has the care of any dependants of the deceased, whichever is longer.173 Children and other dependants of the deceased are each entitled to up to 20 per cent of the compensation which the victim would have received, for the period of their dependency.174 The surviving spouse or partner, and surviving children, are also able to claim a lump sum survivor’s benefit,175 together with a funeral grant.176

_______________ 1.

Social Security Act 1991 (Cth) ss 94(1), 95(1).

2.

Or on reaching ‘pension age’, as defined in s 23(5A)-(5D); for men born between 1952 and 1957, the minimum age for receipt of an age pension increases on a sliding scale from 65 to 67; for women born between 1935 and 1957, the minimum age for receipt of an age pension increases on a sliding scale from 60 to 67.

3.

Ibid s 94(1)-(2).

4.

Ibid ss 1064, 1065.

5.

Ibid Pt 3.16.

6.

Ibid ss 1064, 1065.

7.

Ibid s 666.

8.

Ibid s 1068.

9.

Ibid Pt 3.16.

10.

Ibid s 1068.

11.

Ibid s 315.

12.

Ibid s 4(2).

13.

Ibid s 1066.

14.

For a discussion of the history behind, and philosophy of, the English legislation, see McGuire v Union Steamship Co of NZ Ltd (1920) 27 CLR 570 at 578-83 per Isaacs and Rich JJ.

15.

Safety Rehabilitation and Compensation Act 1988 (Cth); Seafarers Rehabilitation and Compensation Act 1992 (Cth); Workers Compensation Act 1951 (ACT); Workers Compensation Act 1987 (NSW); Workers Rehabilitation and Compensation Act 1986 (NT); Workers’ Compensation and Rehabilitation Act 2003 (Qld); Workers Rehabilitation and Compensation Act 1986 (SA); Workers Rehabilitation and Compensation Act 1988 (Tas); Accident Compensation Act 1985 (Vic); Workers’ Compensation and Injury Management Act 1981 (WA).

16.

Cth s 5(2); NSW s 6(5); Tas s 4(2); Vic s 14(4); in WA, members of the police force may be included in some circumstances.

17.

Vic s 14(2); WA s 14(2a).

18.

Qld Sch 2 Pt 2, excludes from the notion of ‘worker’ a person who is employed by a corporation of which he or she is a director.

19.

Lee v Lee’s Air Farming Ltd [1961] AC 12; [1960] 3 All ER 420 (PC); and see Williams (Bill) Pty Ltd v Williams (1972) 126 CLR 146.

20.

Cth Employees s 5A, s 7(1); Cth Seafarers s 3, definition of ‘injury’, s 10; ACT s 4; NSW s 4; NT s 3(1), definition of ‘injury’; Qld s 32; SA s 31; Tas s 25(1); Vic s 5(1), definition of ‘injury’; WA s 5(1), definition of ‘injury’.

21.

Cth Employees s 6(1); Cth Seafarers s 3, definition of ‘injury’; ACT s 31(1); NSW s 4; NT s 3(1), definition of ‘injury’; Qld s 34; SA s 30(5); Tas s 25(1); Vic s 82(1); WA s 5(1), definition of ‘injury’.

22.

Cth Employees s 6(1)(b); Cth Seafarers s 9(2)(e); ACT s 36; NSW s 10; NT s 4(1); Qld s 35; SA s 30(3); Tas s 25(6); Vic s 83(2); cf WA s 19(2), which imposes various limits on when travel

injuries may be compensable. 23.

Cth Employees s 14(2); Cth Seafarers s 26(2); ACT s 82(2); NSW s 14(3); NT s 57(a); Qld s 129; Tas s 25(2)(a)(ii); Vic s 82(3).

24.

See, eg, CCH, Australian Workers Compensation Guide, para 70-500, ‘Comparative Table of Benefits’.

25.

NT s 52.

26.

SA s 54; see South Australia v McDonald (2009) 104 SASR 344 (FC).

27.

Qld s 237.

28.

NSW ss 151E-151T; Vic s 134AB; WA Pt IV Div 2.

29.

Cth Employees ss 44, 45; Cth Seafarers ss 54, 55.

30.

ACT s 184; NSW s 149(1)(c); Qld s 270; Tas s 133; Vic s 134AB(12); WA s 92.

31.

Cth Employees s 50; Cth Seafarers s 59; ACT s 183; NSW s 151Z; Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 (CA); NT s 54; Qld s 270; SA s 54(4B)-(8); Manser v Spry (1994) 181 CLR 428; 124 ALR 539; Tas s 134; Vic s 138; Esso Australia Ltd v Victorian Workcover Authority (2000) 1 VR 246 (CA); WA s 93.

32.

Criminal Injuries Compensation Act 1963 (NZ).

33.

ACT: Victims of Crime (Financial Assistance) Act 1983; NSW: Victims Support and Rehabilitation Act 1996; NT: Victims of Crimes Assistance Act 2006; Qld: Victims of Crime Assistance Act 2009; SA: Victims of Crime Act 2001; Tas: Victims of Crimes Assistance Act 1976; Vic: Victims of Crime Assistance Act 1996; WA: Criminal Injuries Compensation Act 2003.

34.

Gray v Barr [1971] 2 QB 554; 2 All ER 949 (CA); S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14 (CA).

35.

ACT s 10; NSW ss 14-16; NT ss 10, 12, 14; Qld s 3; SA s 17; Tas s 4(1)(a); Vic s 1(2); WA s 12.

36.

This is provided for expressly in WA ss 12, 13; it is to be implied from the wording of the other statutes: see Brown v Baxter (1987) 87 FLR 449 (NTSC).

37.

Re Carter (1984) 4 SR (WA) 219.

38.

ACT s 8; NSW s 5; NT s 5(2); Qld s 25(2); SA s 4, definition of ‘offence’; Tas s 4(1)(a); Vic s 3, definition of ‘criminal act’; WA ss 14-17.

39.

This is provided for expressly in ACT s 29; SA s 22; Tas s 5(2); Vic s 31; the wording of the other legislation does not suggest any different approach.

40.

ACT s 9(b); NSW s 7; NT s 9(2); Tas s 4(1)(b); Vic s 7(2).

41.

ACT s 2, definition of ‘injury’ (under which the aggravation or recurrence of a physical or mental injury, or the contraction or acceleration of a disease, are included); NSW s 10 and Sch 1; NT s 6; Qld s 27; SA s 4; Tas s 2(2); Vic s 3; WA s 3. The legislation requires that the victim suffer more than just grief (Re Fripp (1996) 125 FLR 456 (ACT SC)), but if the harm is not physical it is not necessary to prove ‘nervous shock’ as known at common law: R v Kazakoff [2001] 2 Qd R 320.

42.

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; 42 ALR 511.

43.

NSW s 8; NT s 11; Qld s 26; Vic s 8A; with respect to other legislation, see Fagan’s case (1982) 150 CLR 666; Sideris v Censori [1983] WAR 17; Re DA (1995) 128 FLR 143 (ACTSC).

44.

Damage to personal effects is recoverable generally by virtue of NSW s 18(2); NT s 10(5)(b); Vic s 8(1)(d); WA s 3, definition of ‘loss’. A wider range of property damage is recoverable, but only when the damage has been suffered while the victim was assisting in the arrest of the offender etc, by virtue of: ACT s 21; Tas s 4(2).

45.

A limit of $75,000 is set by Qld s 38(1) and WA s 31(1). Limits of $60,000 for a primary victim and $50,000 for a secondary victim and each related victim are set by Vic ss 8(1), 10(1) and 13(1). A limit of $50,000 is imposed by ACT s 14; NSW s 19; SA s 20(3)(a)(iii); Tas s 6A(1) and Victims of Crime Assistance Regulations 2010 (Tas) reg 4. A limit of $40,000 is imposed by NT ss 38-40.

46.

But see Vic s 1(3) (compensation not intended to reflect common law damages) and comments to the same effect in Northern Territory v AB (2010) 28 NTLR 1 at [65] (CA).

47.

S v Turner (1979) 1 NTR 17; R v Wraight [1980] Qd R 582; R v MacGowan [1984] 3 NSWLR 440 (CCA); McKenzie v Donald (1984) 37 SASR 1; Re Criminal Injuries Compensation Act 1983 (1984) 58 ACTR 17; Re Karra (1984) 2 SR (WA) 97; H v Crimes Compensation Tribunal [1997] 1 VR 608 (CA); S v Crimes Compensation Tribunal [1998] 1 VR 83 (CA).

48.

Tas s 6(1)(b).

49.

See Re Sargeant; Re Farrelly (1973) 6 SASR 321 (FC); T v South Australia (1992) 59 SASR 278 (FC), both interpreting the previous legislation in that state.

50.

ACT s 17; NSW s 16; NT s 14; Qld ss 47-49; SA s 17(3); Tas s 4(3); Vic s 11; WA s 30(3).

51.

SA s 17(2); the maximum that may be awarded under this head is $10,000: s 20(1)(c).

52.

Re Hondros [1973] WAR 1 (attack occurred shortly after offender discovered victim committing adultery with offender’s wife).

53.

ACT ss 31, 37; NSW s 30(1)(a); NT s 41(1)(a), (b); SA s 20(4); Tas s 5(3); Vic s 54; WA s 41. Qld s 80 prohibits a grant of assistance only if the victim was involved in criminal activity at the time of receiving the injuries.

54.

WA s 36.

55.

Forster, ‘The Failure of Criminal Injuries Compensation Schemes for Victims of Intra-familial Abuse’ (2002) 10 TLJ 143.

56.

NSW s 30(1)(b).

57.

ACT s 12(1)(c); NT s 43(b), (c) and (d); Qld s 21(3); SA s 20(7); Tas s 5(3A); Vic s 52(a); WA s 38.

58.

As to which see Qld s 22 (grant of assistance under this legislation independent of any of the victim’s other rights or remedies).

59.

ACT s 35; NSW s 30(3); NT ss 17, 18; SA s 17(5); Tas s 6(1)(d); Vic s 16; WA s 42(3), (4).

60.

ACT s 54; NSW Pt 2 Div 8; NT Pt 5; Qld s 38; SA s 28; Tas s 7A; Vic s 51; WA Pt 6.

61.

ACT s 53; Qld s 38; SA s 29(2); Tas s 9(2); Vic s 62; WA s 42(3), (4).

62.

For a discussion of the shortcomings of that scheme, see Schaffer, ‘The Minogue Report on Motor Vehicle Accident Compensation’ (1979) 53 ALJ 200.

63.

Transport Accident Act 1986 (Vic) s 35.

64.

The limits specified in the Act are a minimum of $304 a week for a person with no dependants and a maximum of $621 a week (s 44(2) and (3)), but these figures are indexed to take account of rises in average weekly earnings: s 61(1).

65.

Transport Accident Act 1986 (Vic) s 44.

66.

Ibid s 46.

67.

See the definition of ‘pre-accident earning capacity’ in s 49(5).

68.

The minimum stated in the Act is $270 a week for a person with no dependants, and the maximum is $504 a week (s 49(2) and (3)), but those amounts are indexed: see fn 64 above.

69.

Ibid ss 45, 50.

70.

Ibid s 53.

71.

Ibid s 47; the maximum payable for total impairment is $252,000 in 2004 monetary terms, indexed to take account of inflation: s 61(2).

72.

Ibid s 57; the maximum amount of the benefit, payable if the deceased was aged 24 or less, is $103,210, indexed to levels of monetary inflation (s 61(2)), while the minimum, payable if the deceased was aged 75 or more, is half that amount.

73.

Ibid s 58; the minimum is $304, if the spouse has no dependent children, and the maximum is $621, both figures being indexed to general wage rates: s 61(1).

74.

Ibid s 59.

75.

Ibid s 39(1), (2).

76.

Ibid s 39(3).

77.

Ibid s 40(1). Further grounds for preclusion are that the driver did not hold a licence, or that the vehicle was being used in the commission of a crime: see s 40(1)(c) and (d).

78.

A person injured in an accident covered by the Act must have the injuries assessed as serious by the commission before being entitled to sue at common law: s 93(2); Swannell v Farmer [1999] 1 VR 299 (CA).

79.

Ibid s 93; the limitations imposed by that section have been referred to in 11.12 and 11.31. The damages are also to be reduced by any amount paid by the commission in respect of the relevant harm: s 93(11), (11A).

80.

For discussion of the differences between damages available at common law and benefits payable under the statutory scheme, see, eg, Mann, ‘No-fault Benefits and Damages at Common Law’ (1988) 62 Law Inst Jo 712.

81.

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 23(1).

82.

Ibid s 23(1A).

83.

The benefits are capped at three times average adult weekly earnings: Motor Accidents (Liabilities and Compensation) Regulations 2010 Sch 1 Pt 5 cl 3(5).

84.

Clause 3(4)(a), and see cl 4(3)(a) for corresponding provisions relating to a self-employed person.

85.

Ibid cl 3(7).

86.

Ibid cl 3(4)(b), and see cl 4(3)(b) in relation to self-employed persons.

87.

Ibid cl 5.

88.

Ibid Pt 2.

89.

Ibid Pt 4 cl 1; the lump sum is increased by $22,500 in respect of each dependent child aged less

than nine, by $11,250 in respect of each dependent child aged nine to 17, and by $4500 for dependent children aged 18 to 24. 90.

Ibid Pt 3; the limit is $7500, to be increased in line with rises in average weekly earnings: cl 2(1).

91.

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 24(1)(a), (d) and (f).

92.

Ibid s 24(2).

93.

Ibid s 27.

94.

Ibid s 24(1)(b).

95.

Motor Accidents (Compensation) Act 1979 (NT) s 5. The section preserves the right of nonresidents to sue at common law for an injury suffered as the result of a road accident in the Northern Territory: Hobbs v Motor Accident Commission of South Australia (2008) 24 NTLR 27.

96.

Heart failure while driving is not an ‘accident’ for these purposes: Brogan v Territory Insurance Office Board (2009) 24 NTLR 159.

97.

Motor Accidents (Compensation) Act 1979 ( NT ) s 7.

98.

Ibid s 13.

99.

McMillan v Territory Insurance Office (1988) 57 NTR 24 at 32 per Gallop J (although in that case the applicant was found not to have any capacity to earn: at 34).

100. Motor Accidents (Compensation) Act 1979 (NT) s 14. 101. Ibid s 17. The maximum amount payable is 208 times average weekly earnings in the territory: s 17(3). 102. Ibid s 18. 103. Ibid s 18A. 104. Ibid s 18B. 105. Ibid s 19. 106. Ibid s 22(1); the amount of the benefit is 156 times average weekly earnings. 107. Ibid s 23. 108. Ibid s 22(1)(a). 109. Ibid s 24; the amount is 156 times average weekly earnings, divisible equally if both parents were dependent on the deceased. 110. Ibid s 9(1), (2) and (3). 111. Ibid s 9(6). 112. Ibid s 10(2). 113. Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) s 4(2). 114. Ibid s 4(4). 115. Ibid s 7(1) as amplified in Pt 1 of the LTCS Guidelines made by the Motor Accidents Lifetime Care and Support Authority and published on their website. 116. Ibid s 11A. 117. Ibid s 5A, which includes an extensive list of benefits available. 118. Ibid s 7(4).

119. Ibid s 54 (1) and (2). 120. Ibid s 54(3). 121. Art 17 of the 1999 Montreal Convention, in the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Sch 1A. For the historical background to the Warsaw Convention, see Richardson, ‘Aviation Law in Australia’ (1965) 1 Fed L Rev 242, esp at 279-84. 122. Ibid Art 1. 123. Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 27(1). 124. See Civil Liability (Carriers’ Liability) Act 1967 (NSW) s 5; Civil Liability (Carriers’ Liability) Act 1964 (Qld) s 5; Civil Liability (Carriers’ Liability) Act 1962 (SA) s 6; Civil Liability (Carriers’ Liability) Act 1963 (Tas) s 5; Civil Liability (Carriers’ Liability) Act 1961 (Vic) s 5 and Civil Liability (Carriers’ Liability) Act 1961 (WA) s 6. 125. Civil Liability (Carriers’ Liability) Act 1959 (Cth) s 28. 126. Mount Beauty Gliding Club Inc v Jacob (2004) 10 VR 312 (CA) at [30]-[31] per Callaway JA, at [34] per Buchanan JA. 127. Laroche v Spirit of Adventure (UK) Ltd [2009] QB 778; 2 All ER 175 (CA). 128. Ibid ss 9D(2) and 9E with respect to international travel and ss 35(2) and 36 with respect to domestic travel. 129. 1999 Montreal Convention Art 35 and Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34 respectively. On the application of the latter provision, see Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; 218 ALR 677; Air Link Pty Ltd v Paterson (2005) 223 CLR 283; 218 ALR 700. 130. Special Drawing Rights are a monetary unit of the International Monetary Fund; in 2012, 100,000 SDRs was worth approximately $145,000. 131. 1999 Montreal Convention Art 21. 132. Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 31(1). 133. Ibid s 12(3) with respect to international travel and s 35(3) with respect to domestic travel. 134. Ibid ss 12(8) and 35(8) respectively. 135. Ibid ss 15 and 38 respectively. 136. Ibid ss 16 and 39 respectively. 137. Povey v Qantas Airways Ltd (2005) 223 CLR 189; 216 ALR 427; Re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495; 1 All ER 786. 138. Barclay v British Airways plc [2010] QB 187; [2009] 1 All ER 871 (CA); Brannock v Jetstar Airways Pty Ltd (2010) 273 ALR 391 (Qld CA). 139. Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354 (CA); see also Chambers, ‘The Meaning of “Accident” in the Air’ [2010] LMCLQ 19. 140. Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 (CA); Morris v KLM Royal Dutch Airlines [2002] 2 AC 628; 2 All ER 565; Handford, ‘“Come Fly with Me”: Psychiatric Injury and the Warsaw Convention’ [2006] JBL 408. 141. South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301; 157 ALR 443 (FC). 142. See generally Palmer, Compensation for Incapacity, 1979; Ison, Accident Compensation, 1980;

Blair, Accident Compensation in New Zealand, 2nd ed, 1983. 143. Law Commission, Personal Injury: Prevention and Recovery, NZLC R4, 1988. 144. Childs v Hillock [1994] 2 NZLR 65 at 68 per Hardie Boys J (CA). 145. Accident Compensation Act 2001 (NZ) s 3. 146. But the prohibition does not apply to a claim for exemplary damages: Couch v Attorney-General (No 2) [2010] 3 NZLR 149 (SC NZ). 147. Ibid s 317. 148. Ibid Pt 6. 149. Ibid s 20(1). 150. Ibid s 26(1). 151. The relevant offences are listed in Sch 3 to the Act; although they are generally sexual offences, all of the substantive elements of a particular offence must have been satisfied: CLM v Accident Compensation Corporation [2006] 3 NZLR 127. 152. Accident Compensation Act 2001 (NZ) s 21B. 153. Accident Compensation Corporation v D [2008] NZCA 576. 154. (2003) 215 CLR 1; 199 ALR 131; see 7.58ff. 155. Accident Compensation Act 2001 (NZ) s 25(1)(a) and (b). 156. Ibid s 28. 157. Ibid s 30. 158. Ibid s 32(1)(a)-(b). 159. Manning, ‘New Zealand’s Remedial Response to Adverse Events in Healthcare’ (2008) 16 TLJ 120 at 143. 160. Accident Compensation Act 2001 (NZ) s 20(2)(i)-(j). 161. Ibid s 20. 162. Ibid s 98. 163. Ibid Sch 1 cl 32(3). 164. Ibid cl 51. 165. Ibid cl 46; the maximum amount of compensation stated in the Act is $1341.31 a week, but this is subject to adjustment in line with movements in average weekly earnings: s 115. The maximum payable as at 1 July 2011 was $1750 per week, so that only those earning more than $114,000 a year would receive something less than 80 per cent of their pre-accident earnings. 166. Ibid cl 42(3); the minimum rate of compensation is fixed by reference to the relevant minimum weekly wage under the Minimum Wage Act 1983 (NZ) or the rate of invalid’s benefit under the Social Security Act 1964 (NZ). 167. Ibid cl 47. 168. Ibid Sch 1 Pt 3. 169. $2500 for one whose degree of whole person impairment is 10 per cent: ibid cl 56(3). 170. $100,000 for one whose degree of whole person impairment is at least 80 per cent: ibid cl 56(4),

subject to adjustment in line with movements in the Consumer Price Index: s 116. 171. Ibid ss 81-84. 172. Ibid ss 85-96. 173. Ibid Sch 1 cl 66. 174. Ibid cl 70; but the total for the surviving spouse and other dependants is not to exceed the amount to which the victim would have been entitled: cl 74. 175. Ibid cl 65 ($4700 for the surviving spouse or partner and $2350 in respect of each child under the age of 18, subject to adjustment in line with movements in the Consumer Price Index: s 116). 176. Ibid cl 64 (the maximum amount of the grant is specified as $4500, subject to adjustment in line with movements in the Consumer Price Index: s 116).

[page 424]

CHAPTER 13 The Negligent Infliction of Purely Economic Loss1

13.1 If the defendant, by careless words, acts or omissions, has caused no more than economic loss to the plaintiff, the circumstances in which the former will be liable to the latter in negligence are more closely circumscribed than if the plaintiff suffers damage to the person or to property. While liability for purely financial harm brought about by another’s lack of care is founded, at bottom, on the Atkinian principle of foreseeability, it is limited by a variety of factors not normally considered in determining liability for personal or property damage — factors such as reliance by the plaintiff on the defendant, or the need for a special relationship between the parties. It is because of this different, and more limited, approach to liability that the topic has been dealt with separately in this chapter. The first matters to be considered, in 13.2–13.17, are the preliminary issues of what constitutes purely economic loss for these purposes, and the reasons for the judicial reluctance to allow too broad a scope of liability when that is the loss for which recompense is claimed. Although, as is pointed out in 13.18, there is little or no reason in principle to distinguish between purely financial harm caused by a negligent misstatement and the same harm caused by a negligent act or omission, the courts’ approach to liability does differentiate between the two means of bringing about the loss. Hence, 13.19–13.43 deals with liability for negligent misstatements, while 13.44–13.79 is concerned with those circumstances in which purely economic loss is compensable, if caused by an act or omission of the defendant other than by words.

Introduction What constitutes ‘purely economic loss’? 13.2 This chapter is, in the main, limited to a consideration of those situations in which the only loss suffered by the plaintiff is financial, and in which the extent of that loss is not confined by extraneous factors. This limitation excludes from the present discussion a number of instances in which a plaintiff suffers economic loss. [page 425]

Exclusions from the concept 13.3 A person who has suffered physical injury as the result of another’s negligence is likely to undergo the financial harm of being unable to exercise his or her earning capacity, and of having to meet medical and hospital costs. However, the extent of that harm is, of necessity, constrained by the fact that it is a result of the injury to the plaintiff as an individual. As a consequence, recovery for that harm is not subject to the limitations already adverted to. Damages (including financial loss) for personal injury are assessed in accordance with the principles discussed in Chapter 11.

13.4 Further, this chapter is not concerned with those secondary actions which may be brought by one person as a result of the death or physical injury caused to another. Principal among such actions is that available to the dependants of one who dies as a result of the defendant’s negligence, under the local equivalents of Lord Campbell’s Act: see 11.32ff. The other action in this category is that available for the loss of the services of the person injured.2 Although, in both cases, the plaintiff suffers no detriment other than financial harm, that loss is necessarily limited to such as flows from the death or injury of an individual. That fact is considered to be sufficient to keep liability within reasonable bounds, and so such claims are routinely assessed by courts in accordance with established principles. It must also be recalled that this part of the book is confined to the tort of

negligence, and hence that this chapter deals with the negligent infliction of economic loss. The circumstances in which the intentional causing of financial harm is actionable are considered in Part VI.

13.5 Generally speaking, this chapter does not deal with cases where the plaintiff’s property has been damaged by a force external to that property and the plaintiff seeks to recover the cost of repairing or replacing it.3 In most such cases, it has been said,4 it is self-evident that the person responsible for the damage owes a duty of care to the owner of the property. And in any case, the extent of the defendant’s possible liability is necessarily limited to the value of the damaged goods. In logic, this chapter should also exclude those circumstances where loss is suffered by reason of the plaintiff’s inability to use goods which have been damaged by the defendant’s lack of care. Such harm is not solely financial, but is consequent upon the damage to the property concerned; it may therefore be regarded as closely analogous to the financial harm incurred by one who suffers personal injury. This type of injury is nevertheless discussed in 13.55ff because the type of loss of which the plaintiff complains is similar to that for which compensation is granted in cases of purely economic loss, and because the circumstances in which damages are (or are not) available raise questions concerning the future development of this area of the law. [page 426]

Examples of purely economic loss 13.6 Despite the exclusions mentioned above, there is a wide range of circumstances which fall within the notion of purely economic loss. The provision of information or advice — whether it be as to the zoning of land within a city or shire,5 or as to the financial health of a business6 — is likely to cause no more than financial harm to one who relies on it, if the information is incorrect, or the advice unsound, by reason of the provider’s lack of care. A research institute which carelessly allows a virus to escape and infect livestock in the vicinity will cause purely economic loss to an auctioneer who is denied the opportunity to sell the livestock at auction.7 Workers who, while excavating a trench, carelessly sever an electricity cable,

thereby bringing to a halt production at a nearby factory, will cause the factory to lose the profits it would have made during the disruption.8 A dredge which is operated with insufficient care and which ruptures a pipeline on the seabed will cause, to the company which uses that pipeline, the financial harm of having to employ a more expensive means of transporting its products.9 If a Minister of the Crown, by negligently withholding a necessary consent, prevents a company from proceeding with a development project, the company may suffer the loss of the opportunity thereby denied.10 And if a builder fails to comply with the plans and specifications for a house, so that it contains latent defects, the person who is the owner at the time those defects become manifest will have suffered the economic loss of discovering that the structure is worth less than was paid for it.11

13.7 In many of the above illustrations, the loss which has been suffered is the extra cost to which one party has been put by reason of the other’s careless words or acts. But in some the loss comprises the gains which the injured party had expected to make had the defaulting party not acted in the way it did. A further example of purely economic loss which comprises gains which the injured party is unable to realise is to be found in those cases in which the defendant’s negligent misstatement has caused the plaintiff to enter into an unprofitable contract when, had the misstatement not been made, the plaintiff would have entered into another, and lucrative, contract.12 And a solicitor or other professional person who is negligent in the drawing,13 execution14 or custody15 of a will may be liable to those whom the testator intended to benefit, or to the executor named in the will, for the financial advantages they would have received had the solicitor acted with due care. [page 427]

Reasons for judicial reluctance to impose liability 13.8 The courts have consistently stressed the need for some control mechanism, narrower than the concept of reasonable foreseeability, to limit a person’s liability for purely economic loss. Some of the reasons which have prompted this desire are discussed below, although it may be observed that none of them, taken individually, is sufficient to support that conclusion.

The fear of indeterminate liability 13.9 In Ultramares Corp v Touche, Niven & Co,16 decided in 1931, Cardozo CJ, speaking for the New York Court of Appeals, encapsulated one of the difficulties of treating purely economic loss in the same way as physical injury, for the purpose of determining liability, when he said that if such were the case ‘a thoughtless slip or blunder … may expose [defendants] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class’. It is not difficult to illustrate the dangers to which the Chief Justice alluded. Suppose, for instance, that A recommends to B the purchase of shares in a public company, but that A, through carelessness, has overlooked some fact which renders the company a bad investment. A, as a reasonable person, could readily foresee that his or her advice may be passed on by B to others, who may in turn transmit it further a field. If reasonable foresight of harm were the only criterion of liability, A would be liable to all those who had acted on the advice to their financial detriment. Again, suppose that the captain or pilot of a ship carelessly collides with a bridge linking two parts of a city, causing the bridge to collapse. That collapse would inevitably lead to the residents of the city suffering the economic harm of being forced to take a longer, and therefore more expensive, route than had been available to them. Such dislocation of traffic could then have a deleterious financial effect on business in the vicinity, which could in turn lead to economic losses by creditors of those businesses, and so on. And yet, if Lord Atkin’s reference in Donoghue v Stevenson to the reasonable foreseeability of harm were to form the basis for liability, all those losses would fall on the owner of the ship.

13.10 The danger which is said to lie in a defendant’s being liable to an ‘indeterminate class’ is that he or she will not be able to estimate in advance the extent of potential liability, and arrange his or her affairs accordingly. Hence, the words of Cardozo CJ have, in some instances, been referred to as a reason for denying the existence of a duty of care,17 and in others they have been acknowledged as a ground for limiting the duty more closely than by reference to reasonable foreseeability.18 But the dangers adverted to by that judge should not be over-emphasised. It has also been

[page 428] remarked19 that his words are capable of being used to disguise the quite different, and specious, argument that to admit of a duty in a novel situation would be to open the floodgates to unmeritorious claims.

Disproportion between the defendant’s blameworthiness and the extent of liability 13.11 Closely linked with the preceding reason for limiting liability for economic loss is the view that, if such liability is to depend on no more than reasonable foreseeability of that type of loss, the defendant may be exposed to claims the extent of which is out of all proportion to the degree to which the relevant conduct fell below that of the reasonable person.20 This view is but an extension into the field of purely economic loss of a sentiment which has traditionally been present in determining liability for personal injury and property damage.21

Interrelationship between liability in tort and contract 13.12

The law of contract has traditionally been concerned, almost exclusively, with the adjustment of losses that are solely financial. When liability in negligence for purely economic loss was first accepted in principle, by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd,22 it was recognised that principles of the law of contract might have an impact on the development of this new form of duty in tort. In assessing the effect of that interrelationship, it is useful to distinguish cases in which the parties to the litigation are also parties to a contract from those in which the plaintiff or defendant is a party to a contract with another.

13.13 In the former circumstance, where the issue is whether a duty of care had arisen between parties to a contract, the law of negligence now plays a dominant role and that of contract a subsidiary one, in that a duty of care is assumed, in the absence of countervailing provisions in the express or implied terms of the contract.23 Thus, it is universally accepted that a professional person owes a duty to his or her client concurrently and co-

extensively in tort or contract,24 the contract generally not being one the terms of which are the result of lengthy negotiation. But a duty of care is likely to be denied if the parties have clearly considered, discussed and negotiated the terms of their bargain, whether it be for the construction of a commercial [page 429] building,25 or a large and expensive item of equipment,26 or the sale of a house27 or goods intended for commercial use,28 the supply of specialist pharmaceutical products29 or the supply of gas to both commercial and domestic users in Victoria.30

13.14 In the latter of the situations referred to above, where either the plaintiff or defendant is a party to a contract with someone else, the effect that the existence of that contract may have on the determination of a duty of care is related closely to the doctrine of privity of contract. If it appears that the parties’ reasonable expectations would be frustrated by the doctrine of privity, the courts are more willing to overcome that essentially technical hurdle by finding a duty of care.31 But where, on the other hand, it is considered that the parties were fully alive to the doctrine of privity, and structured their relationship in its shadow, it would clearly subvert their intention to superimpose a duty of care thereon, and thus a duty will generally32 be denied.33

The need to prevent competition being stifled 13.15 In a capitalist society, it is clearly necessary for the law not to impede competition between business entities. So well entrenched is this principle that the law is prepared to countenance conduct which is intended to cause economic harm to a trade rival, so long only as the perpetrator does not commit some act which is otherwise unlawful in the course of bringing about that economic harm. The circumstances in which such intentional interference with another’s trade will be tortious are discussed at 21.24ff. In the light of this approach to the intentional infliction of purely economic harm, it is not surprising that the courts are at pains to limit the circumstances

in which such economic loss is caused by the merely negligent conduct of a party. Thus, in Bryan v Maloney,34 members of the High Court observed that one policy consideration which militated against the recognition of a duty of care was: [page 430] … the perception that, in a competitive world where one person’s economic gain is commonly another’s loss, a duty to take reasonable care to avoid causing mere economic loss to another, as distinct from physical injury to another’s person or property, may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage.

The need for certainty 13.16 A further reason that has been advanced for limiting liability for purely economic loss is the need that the law be certain.35 Only by this means, it is said, can legal practitioners advise their clients of their rights (or lack of them).While some certainty in the law is clearly essential, it may also be observed (a) that to limit recovery for economic loss by an arbitrary criterion, such as the need to show injury to one’s property as well, scarcely accords with justice, and (b) that even the proponents of a fixed rule have acknowledged exceptions thereto, thus restricting the utility of the notion of certainty.36

The effect of insurance 13.17 Lord Denning MR, in the English Court of Appeal,37 suggested that the financial harm suffered when a business is forced to close temporarily because of a disruption to essential services such as electricity, gas or water ought not to be borne by the person who has caused the disruption. One reason for this view was that the business is likely to have insured against this loss, so that the effects of the harm are spread by that insurance among a wide section of the community. And La Forest J, in the Supreme Court of Canada, pointed out38 that one reason for denying liability in at least some cases of purely economic loss is that first party (indemnity) insurance is often a cheaper and more effective means of protecting against that harm than third

party (liability) insurance. On the other hand, Woodhouse J, in the New Zealand Court of Appeal,39 considered that the financial harm caused by a negligent auditor is best borne by that auditor, as he or she is better able to insure against such liability than those who had relied, to their financial detriment, on the auditor’s report. But it has also been remarked40 that the courts lack the necessary evidence and expertise to undertake an inquiry into the effects of either loss insurance or liability insurance, and that both should therefore be left out of account in formulating relevant principles.

Is there a difference between words and acts? 13.18 It may be accepted that it is not always easy to distinguish between a negligent misstatement which causes purely economic loss and a negligent act [page 431] which has the same effect. For instance, in Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’,41 the appellants suffered the financial harm of being forced to use a more expensive means of transporting oil products from one point to another when the pipeline which they used (but did not own) was ruptured by the respondent’s dredge. Gibbs J observed42 that such loss might be ascribed either to the actions of the master of the dredge, or to the misstatement by the company which had prepared the charts on which the master relied. Again, if an accountant negligently audits a company’s accounts, it is not immediately obvious whether he or she has made a misrepresentation as to the company’s affairs, or committed a negligent act. And, if the complaint against a defendant is a failure to prevent the plaintiff from suffering purely economic loss, it may be difficult to categorise the defendant’s possible liability as depending either on a failure to speak or on a failure to act.43 But while the distinction may be difficult to draw, it is suggested that it is one which is important. As will be explained shortly, liability for a negligent misstatement depends to a very large degree on the fact that the plaintiff has placed reasonable reliance on that statement, and that the defendant is, or

ought reasonably to be, aware of that reliance. Such reliance, however, is not necessarily a touchstone for liability when the defendant’s negligence consists of acts rather than words.44 Furthermore, by founding responsibility for negligent misstatements on the concept of reasonable reliance, a defendant is able to disclaim that responsibility by making it clear that a statement is not such as would engender that reliance; but one cannot disclaim responsibility in the same way for one’s negligent acts.45 Hence, the remainder of this chapter deals separately with liability for negligent misstatements and liability for negligent acts or omissions.

Negligent Misstatements 13.19 Until 1963, liability for loss caused by a misstatement was limited to those circumstances in which the defendant had been guilty of fraud, had been in breach of a fiduciary duty, or had given a contractual promise of the accuracy of the statement. In 1963, the House of Lords extended the ambit of liability to include misstatements made in breach of a duty of care, in Hedley Byrne & Co Ltd v Heller & Partners Ltd.46 Because that decision marked a turning point in negligence liability, it is not surprising that initial judicial reaction to it was guarded.47 However, more recently the courts have taken a more expansive view of the nature of the liability, and have consistently whittled away the limitations expressed in earlier decisions. In determining the current state of the law, this section considers in turn: (1) the circumstances in which a person may come under a duty of care in making statements; [page 432] (2) the range of persons to whom a duty may be owed; (3) the nature of those statements which, if incorrect, will attract liability; and (4) the measure of damages that may be recovered.

13.20 Although liability at common law for negligent misstatements is continuing to develop, it has largely been overtaken by the Australian Consumer Law ss 18 and 236 and the equivalent Fair Trading Act 1986 (NZ)

ss 9 and 43, which impose strict liability for statements (and other conduct) which mislead or deceive another.48 The statutory regime is discussed in Chapter 22. Despite the overlap of liability at common law and under statute, the former requires separate discussion, first because the legislation (unlike the judicial developments) is limited to conduct carried on ‘in trade or commerce’49 and secondly because many of the relevant common law principles are relied on, by analogy, in construing the very brief statutory statement.

When does a duty of care arise? 13.21 When the House of Lords first acknowledged the existence of liability for negligent misstatements, in Hedley Byrne, it suggested that such liability should devolve only on those who were in a ‘special relationship’ with the person who suffered loss through the inaccuracy of the statement. Essential to this relationship, it was subsequently said,50 was the fact that ‘the maker of the statement was or should have been aware that his advice was required for use in a specific type of contemplated transaction’. This requirement was limited still further by a majority of the Privy Council in Mutual Life & Citizens Assurance Co Ltd v Evatt.51 Their Lordships insisted that, unless the speaker had a financial interest in the transaction in respect of which the statement was made, liability would follow only if the defendant had, or claimed to have, skill and competence in the subject matter of the statement. However, this limitation has subsequently been rejected in Australia52 and England.53 In New Zealand, the rejection of the Privy Council’s limitation is implicit in the adoption of the view that a Minister of the Crown may come under a duty when considering an application for government consent to a development project.54

13.22 The present position is that liability is not limited to a particular class of persons, or a particular type of transaction. Rather, a defendant will be found to be under a duty to take care to prevent economic loss by a misstatement when he or she knows, or ought to realise, that the words are such as to engender in another [page 433]

reasonable reliance thereon,55 and when the defendant accepts the consequent responsibility for taking care in making the statement.56 Hence it has been said in numerous cases that liability will be imposed, in general, only when the statement is made on a serious occasion, in relation to a serious matter; a casual comment in the course of social intercourse is, of its nature, unlikely to give rise to the necessary reliance on the accuracy of the statement,57 and the same may be said for most of the claims made in the course of advertising a product.58 But this does not mean that an oral statement will never attract liability; of more importance than the mode of transmission of the information is its significance to the recipient.59 Since the issue of whether the defendant has assumed responsibility is to be determined objectively,60 all aspects of the dealings between the parties are relevant.

13.23 The realisation by the defendant that reliance is reasonably being placed on the statement may arise in a number of different ways. Most commonly, it will be found in the fact that the defendant has responded to a request for information or advice.61 In such a case, when the request is made the defendant has the option of staying silent, or of qualifying any answer given. Thus, in Tepko Pty Ltd v Water Board,62 the statement made by the defendant board was clearly no more than an initial estimate, or ‘ball park figure’, upon which the plaintiff could not reasonably have relied.63 But if the defendant gives an unqualified response to a request for information, that is regarded as bringing home to him or her the fact that reliance is reasonably to be placed on the words.64 And it is not necessary that the request be made by or on behalf of the plaintiff. It has been accepted by the House of Lords65 that the provision of a character reference about the plaintiff, at the request of a prospective employer, will found liability if made negligently.66 But a defendant may also come under a duty despite the absence of such a request. Thus, one who has, or professes to have, special skill and competence in the subject matter of the statement67 [page 434] or who is the sole repository of information relating to a particular subject matter68 may be liable for a misstatement either volunteered or given in the course of business or professional duties.69 Again, a person who has a

financial interest in the transaction in relation to which the statement is made may come under a duty with regard to information volunteered, since that financial interest may suffice to make it clear that reliance is being placed on the words.70 Furthermore, the High Court has suggested, in San Sebastian Pty Ltd v The Minister,71 that a duty of care may be imposed on one who proffers a statement, if the statement is made with the intention of inducing an individual or a limited class of people, in reasonable reliance on those words, to act in a particular way which may cause the recipient economic loss if the statement is inaccurate or unsound.

To whom may the duty be owed? 13.24 It has been mentioned in 13.8 that, in all cases in which the claim is for purely economic loss, the class of persons who may claim is narrower than that determined by the defendant’s ability reasonably to foresee the possibility of such harm. Instead, the ambit of the defendant’s liability is determined by a variety of factors, including the defendant’s knowledge, or means of knowledge, of an ascertainable class of vulnerable persons who are unable to protect themselves against harm, the degree of control which the defendant has over the dissemination of the information, and any limits which the imposition of a duty of care might place on the defendant’s capacity to engage in a lawful pursuit.72

13.25

There is no doubt that liability will be established when the defendant makes a statement directly to the plaintiff, or to an agent of the plaintiff.73 The necessary indicia of a duty of care will also be found when the defendant acts in response to a request for information or advice, and knows (or must reasonably contemplate) that the request is made on behalf of an unnamed individual or a limited class of persons, for a particular purpose. Thus, in Hedley Byrne & Co v Heller,74 it was sufficient that the defendant bank had been asked by the plaintiff’s bankers for a credit report on one of their customers, the defendant being aware that the report [page 435] was required in relation to an advertising contract.75 And, in Kendall Wilson

Securities Ltd v Barraclough,76 the relevant relationship was established by the fact that the defendant’s valuation of property was known by him to be required for the purpose of lending money on the security of the property.77

13.26 The courts in Australia and New Zealand have been prepared to extend the range of persons to whom a defendant may owe a duty of care to include those whom it can readily be contemplated will rely on a certificate issued by the defendant. Within this category is the purchaser of a chattel who has relied on the defendant’s appraisal (for whatever purpose) of the soundness of the goods,78 and the purchaser of land who has relied on a certificate issued by the defendant to the vendor of that land, relating either to the suitability of the property for building,79 or the construction of buildings on it.80

13.27 But whether a duty of care extends further than that is a matter of considerable doubt. There has been a series of cases in New Zealand, England, Canada and Australia dealing with the circumstances in which a duty of care should be imposed on an auditor or accountant who reports on the financial health of a company. While there is no doubt that a duty is owed to the company, it is less clear whether it extends to others who have relied on the report to their financial detriment.81 In New Zealand, the leading case is Scott Group Ltd v McFarlane,82 in which the defendant auditor was regarded as fixed with knowledge, as a result of the audit, that the company whose accounts he was reporting on was likely to be taken over, as a result of which a duty of care was owed to the plaintiff, which purchased all the shares of the company in reliance on the audit. Subsequently, in Boyd Knight v Purdue,83 the New Zealand Court of Appeal confirmed that, so long as the auditors must have realised, from the relevant legislation relating to their audit, that the report would come to the attention of investors in the company audited, a duty of care will be owed to those investors.84 [page 436]

13.28 In England, on the other hand, the duty is much more circumscribed by reason of the emphasis placed on the purpose for which the defendant prepared the relevant report. In Caparo Industries plc v Dickman85 the House

of Lords concluded that a duty arises generally only when the plaintiff is (or should be) in the contemplation of the defendant as an individual or a member of an ascertained class who is likely to rely on the defendant’s information or advice for the same purpose as that for which it had been prepared by the defendant. Hence, in Caparo, the defendant auditor having prepared his report for the purpose of complying with the relevant statutory regime and providing information to the shareholders as a body did not owe a duty of care to the plaintiff, which had owned some shares, and purchased the remainder on the faith of the report.86 Similarly, the Supreme Court of Canada has held, in Hercules Management Ltd v Ernst & Young,87 that a duty of care depends upon the plaintiff showing that he or she has placed reasonable reliance on the defendant’s statement, and that the defendant knows, or ought to know, of the identity of the plaintiff (or a class of persons to which the plaintiff belongs), and, further, that the plaintiff has used the statement for the precise purpose for which it was prepared. It was on that latter point that the plaintiffs in that case failed. The defendant auditors had prepared a report in compliance with a statutory obligation placed on all companies to have their accounts audited annually; the plaintiffs having relied on that report for the different purpose of investing in the company, no duty was held to be owed to them.

13.29 The High Court of Australia, in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg),88 has suggested that a duty of care requires, as a necessary prerequisite, that the defendant knew, or ought to have known, that the relevant statement would be communicated to the plaintiff (or to a class of persons of whom the plaintiff is one). As well as such knowledge, it would be sufficient if the plaintiff established that the defendant intended to induce recipients to act, or to refrain from acting, on the statement.89 But even in the absence of such an intention, the existence of a duty of care may be founded on showing that a likely outcome of the making of the statement was the plaintiff’s entering into a transaction of the kind which he or she did enter into in reliance on that statement.90

13.30 While the above cases demonstrate that reliance by the plaintiff on the defendant’s words is a necessary aspect in determining whether there is a sufficient relationship of proximity, that reliance may, in some strictly limited cases, be indirect rather than direct. Such a case was BT Australia Ltd v Raine & Horne Pty Ltd.91 The investment manager of a unit trust was the recipient

of information supplied by the defendant. The investment manager, to the knowledge of the defendant, was legally bound to the plaintiff to act on the information in a way that would cause financial [page 437] loss to the plaintiff if it were incorrect. When this eventuality occurred, the plaintiff was held to be entitled to recover that loss from the defendant. However, it is not sufficient if the recipient of the information acts merely in a way that the defendant might reasonably foresee, with the consequence that economic harm is suffered by another.92 That other cannot be regarded as even indirectly relying on the defendant, so that the relationship between them is not sufficient to establish a duty of care.

Conduct which constitutes a misstatement 13.31 The essence of liability for negligent misstatements being found in the notion of reasonable reliance, the conduct on the part of a defendant which may constitute a misrepresentation for these purposes is that which, either by what is said or is left unspoken, might reasonably be relied on by the plaintiff to lead the latter into error. A speaker may, however, so qualify a statement as to make it clear that the words ought not to be relied on; in such a case, no liability can attach.

Statements 13.32

Despite some earlier suggestions that liability for a statement depends upon the prior classification of the words used as being of fact and not of opinion,93 it is now clear that such a distinction is irrelevant. As the High Court observed in San Sebastian Pty Ltd v The Minister,94 the statement sued on in MLC v Evatt was one of information and advice, while that for which the defendant in Shaddock v Parramatta was liable was of information alone, but any such difference was not in issue since ‘the distinction between information and advice is an unnecessary and often difficult one to draw’.95 It is equally irrelevant to the imposition of liability that the defendant’s

statement relates to future events — either as to the speaker’s intentions or events over which he or she has no direct control.96

13.33 All that is necessary to found liability is that the statement be of such a character as to engender in the plaintiff reasonable reliance thereon. Hence, in Meates v A-G,97 assurances as to the future conduct of the government, having been made with sufficient clarity and precision as to lead the plaintiff to believe that all reasonable care would be taken to see that they would be carried out, were held to constitute a misstatement for these purposes.98 On the other hand, in San Sebastian Pty Ltd v The Minister99 an outline planning proposal was found not to fix the [page 438] defendant with liability, the principal reason being that, in the nature of things, ‘proposals of this kind are subject to alteration, variation and revocation’100 and hence was not such that the plaintiff might reasonably have expected that it would be carried out in its entirety.

Failure to speak101 13.34 A person may be liable not only for what is said but also for a failure to provide information or advice when the defendant ought to have realised that the plaintiff was relying on him or her to provide more than was actually imparted.102 The situations in which liability will be imposed depend to a large extent on the particular circumstances in which the parties are placed. If the defendant makes a statement which is accurate and reliable at that time, there is a duty to inform the plaintiff of any change of circumstances of which the defendant is, or ought to be, aware which renders the statement inaccurate or unsound.103 Parties who are negotiating a partnership agreement owe one another a duty to disclose all material facts of which they are aware and of which the other party might not be aware,104 just as a landlord may come under a duty to inform an intending tenant of any latent defects relating to the premises of which the landlord is, or ought to be, aware.105 It may also be relevant to consider, for example, the nature of the request (if any) for information or advice,106 the business setting of the

transaction and the standards normally to be expected of the profession or calling to which the defendant belongs,107 and the degree to which the defendant knew, or ought to have known, of the plaintiff’s experience (or lack of it) with regard to the transaction in question.108 If the defendant is under a duty imposed by statute to provide information, it is unlikely that there will be a common law duty of greater extent.109 [page 439]

13.35 While liability for failing to speak generally depends upon the extent of the plaintiff’s reliance on the defendant, and the latter’s awareness thereof, it must be accepted that in some limited circumstances a defendant will come under an obligation to speak, in the absence of such reliance, by reason solely of an assumption of responsibility towards the plaintiff. Such a circumstance was found to exist, by a majority of the High Court, in Hawkins v Clayton.110 The defendant solicitors had drawn a client’s will and accepted responsibility for its custody after her death. This was regarded as sufficient to treat the solicitors as having assumed the responsibility, on becoming aware of the testatrix’s death, of locating the executor and informing him of the contents of the will. Since they had failed to fulfil this responsibility for a substantial period, they were held liable for the financial loss resulting to the estate as a foreseeable consequence of that failure. However, such an assumption of responsibility to speak will be imputed in only the most exceptional circumstances. Just as the law is loath to impose duties of affirmative action to prevent personal injury or property damage (see 7.17ff), so too is it unwilling to impose such a duty to prevent financial harm. Hence, when a bank inadvertently allowed a customer to withdraw funds from its account in breach of an asset freezing order obtained by the Customs and Excise Commissioners, but did not inform the commissioners of what had occurred, the House of Lords held that the bank had not voluntarily assumed any responsibility to the commissioners, nor had they relied in any way on the bank. It was therefore held that the bank did not owe a duty of care to the commissioners.111 Similarly, the mere fact that two companies are in a close business relationship, or even that they are negotiating for a contract of insurance and therefore owe one another a duty of the utmost

good faith, has been held not to be sufficient to impose on one the duty to inform the management of the other company that it has been defrauded by one of its brokers.112

Disclaimer of liability113 13.36

Since reasonable reliance plays such an important part in determining liability for misstatements, it follows as a matter of course that a defendant may make it clear, by the use of appropriate words, that a statement is not such as might reasonably be relied on by the plaintiff, and hence disclaim the liability which would otherwise accrue. Whether the words used have this effect is very much a matter of construction, in the light of all the surrounding circumstances, the onus being on the defendant to show that the phraseology employed is appropriate for its purpose.114 In the Hedley Byrne case itself,115 the decision of the House of Lords was in favour of the defendants. Their report stated that it was given ‘without responsibility on the part of the bank or its officials’ and, since the only responsibility they might [page 440] have been under was in negligence, these words were regarded as apt to disclaim that liability.116 On the other hand, in BT Australia Ltd v Raine & Horne Pty Ltd117 a property valuation made by the defendants included a clause that it was ‘for the use of the party to whom it is addressed and for no other purpose, and no responsibility is accepted to any third party’. This clause, it was held, would have protected the defendants against a claim by anyone unconnected with the plaintiffs into whose hands the report might have come, but was not sufficient to exclude liability towards the plaintiffs. Even though it had not been addressed directly to all the plaintiffs, the clause did not deny responsibility for damage suffered as a consequence of the actions of the addressee. And in Derring Lane Pty Ltd v Fitzgibbon,118 a similarly worded clause in a valuation certificate was held not to negate a duty of care towards one who suffered loss by the addressee’s reliance on the certificate.

Extent of liability 13.37 Since liability for negligent misstatements is but one aspect of the tort of negligence, the plaintiff must prove the necessary causal link between the defendant’s statement and the loss for which compensation is sought, that such loss is not too remote a consequence, and the measure of that loss.

Causation and remoteness 13.38 As with negligence alleged to give rise to personal injury and property damage (see 9.2), causation is essentially a question of fact.119 The defendant will escape liability if it is shown that the plaintiff would have acted in the same way had the defendant not made the statement, either because the plaintiff had determined on that course of action prior to the statement having been made, or because the plaintiff was fully aware of the true state of affairs.120 The plaintiff, in other words, must show not only (as a question of law) that the statement was such as might have been relied on but also (as an issue of fact) that the statement was indeed relied on to provide not merely the occasion for the loss to be suffered but its cause.121

13.39 The courts have faced considerable difficulty when the plaintiff’s loss, while clearly brought about in part by the defendant’s negligence, has been exacerbated by factors external to the transaction entered into by the plaintiff. Both the High Court and the House of Lords have considered actions in which a valuer has negligently over-valued property for the purpose of the provision of a mortgage by the plaintiff on the security thereof but, before that fact of the over-valuation comes to light, [page 441] there has been a severe decline in property values generally. In Kenny & Good Pty Ltd v MGICA (1992) Ltd,122 the High Court held that, since the valuation had been a decisive factor in leading the plaintiff to act as it did, the valuer should be liable for the whole of the loss suffered by the plaintiff, including that attributable to the fall in market values. In this respect, the High Court declined to follow the decision of the House of Lords in Banque

Bruxelles Lambert SA v Eagle Star Insurance Co Ltd,123 in which it had been held that a valuer in such circumstances should be liable only for the difference between the valuation given and the true value of the property at the time of the valuation.124

13.40 Questions of remoteness are resolved in the same way as in an action for personal injury or property damage: see 9.7. The plaintiff must show that the particular items of financial loss for which recompense is claimed were of a kind or class that was a reasonably foreseeable consequence of the defendant’s negligent misstatement;125 the extent of the loss need not be reasonably foreseeable.126

Measure of damages 13.41 The purpose of an award of damages for negligent misstatement, no less than for negligence causing physical injury,127 is to seek to restore the plaintiff to the financial position that obtained prior to the commission of the tort. The task of the court is essentially retrospective, in looking back to the plaintiff’s economic state before the action in reliance on the defendant’s misstatement, and comparing that with the financial position at the time of the action. Hence, if the plaintiff has undertaken a course of action in reliance on the defendant’s statement, and is able to show that it would never have embarked on that project had the statement been correct, the measure of damages is the expenditure thus wasted.128 Since the damages claimed are the result of the plaintiff’s acting on a statement made by the defendant, there is a superficial similarity with the recovery of damages for breach of contract. However, the purpose of the latter award is different in principle; that award is essentially prospective, in that its aim is to put the plaintiff in the position that would have existed, had the contractual promise been fulfilled.129 Thus, in a case where a plaintiff purchases property on the faith of an incorrect statement made by the defendant vendor, if that statement has contractual force, the plaintiff may recover the difference between the price paid and the value of the property as it was warranted to be, whereas if the statement is regarded as no more [page 442]

than a negligent misrepresentation, the plaintiff is entitled only to the difference between the price paid and the true value of the property.130 But although there is a difference in principle between damages for negligent misstatement and damages for breach of contract, the practical effect of that difference is not great. While a claim for profits lost as a result of relying on an incorrect statement may generally be pursued only in a contract action, the High Court has recognised, in Gates v City Mutual Life Assurance Society Ltd,131 that in suitable circumstances a plaintiff may recover a similar amount in a tort action. It was observed132 that, if the plaintiff’s reliance on the representation ‘has deprived him of the opportunity of entering into a different contract … on which he would have made a profit, then he may recover that profit on the footing that it is part of the loss which he has suffered in consequence of altering his position under the inducement of the representation’.133 A plaintiff seeking to recover for the loss of a commercial opportunity is entitled to have the damages assessed by reference to the chance that the opportunity would otherwise have been successfully exploited.134

Contributory negligence 13.42 Despite an apparent illogicality, it is clear that the contributory negligence legislation (see 10.15) applies to a claim for negligent misrepresentation, allowing the damages to be reduced in proportion to the plaintiff’s want of care. The perceived illogicality is that, since liability for such a statement depends upon the plaintiff’s reasonable reliance thereon, it can scarcely be said that a plaintiff who has failed to take care of his or her own financial interests was reasonable in relying on the defendant’s representation.135 But this difficulty is apparent and not real. It has been mentioned in 13.38 that the notion of reliance fulfils a role both as an issue of law — in determining whether the statement was such as to attract liability if it were inaccurate — and as one of fact — in determining whether the plaintiff has demonstrated the necessary causal link between the statement and the loss. The applicability of the contributory negligence legislation relates only to reliance in the latter role, and not in the former. Once it is determined that the statement sued on was made in such circumstances as would have engendered reasonable reliance thereon by a

person in the plaintiff’s position, the defendant will be liable if the plaintiff can show, among other things, that the statement was one of the causes of his or her subsequent action. But the defendant may reduce the amount of damages otherwise payable by showing that another motivating cause of the plaintiff’s loss was some different act or omission by [page 443] the plaintiff which, in all the circumstances, demonstrates a failure by the plaintiff to protect his or her own financial interests. Such a contributing cause may be constituted by a failure to check the financial affairs of a borrower, the loan to whom having also been induced by a negligent valuation of one of the borrower’s assets,136 or by a company failing to institute adequate financial controls of its employees, the company’s losses having also been caused by its auditors’ failure to report deficiencies in those controls.137

Statutory limitation of liability 13.43 All of the Australian jurisdictions have enacted legislation which allows for a limitation on the liability of members of various professions and trades.138 The statutes permit a professional or trade association to prepare a scheme relating to that particular profession or trade under which the members’ liability in respect of their calling may be limited by the extent of either their insurance cover or their net business assets or by reference to the charges made for the work in relation to which the liability has arisen. Once such a scheme has been prepared, the Acts also provide for it to be the subject of consultation prior to approval by the respective Professional Standards Council of each state. If a scheme is approved by that council, it is submitted to the relevant minister for publication in the Government Gazette whereupon the scheme has the force of law. In conjunction with this legislation, the Competition and Consumer Act 2010 (Cth) s 137, Australian Securities and Investments Commission Act 2001 (Cth) s 12GNA and the Corporations Act 2001 (Cth) s 1044B seek to ensure that the liability of a professional for damages for breach of the Australian Consumer Law s 18,

and the equivalent of that section in the other Commonwealth legislation, may be validly capped by the above state and territory legislation.

Negligent Acts or Omissions 13.44 While liability for negligent misrepresentation may be considered without further classification or categorisation, the same cannot be said for those cases where the plaintiff’s economic loss arises by reason of the defendant’s act or omission. The stress, throughout this chapter, is on the judicial means developed to contain liability within acceptable bounds, but the means of providing that containment vary depending upon the way in which the plaintiff suffers the relevant loss. If that loss is suffered by the defendant’s negligence in causing loss or damage to property belonging to anyone other than the plaintiff, the courts in Australia and New Zealand have been prepared to allow recovery if the circumstances are such that the defendant must reasonably have contemplated the likelihood of such loss, and has no justification for inflicting it. This aspect of liability is discussed in 13.45–13.54. [page 444] The courts in the United Kingdom, however, have not been prepared to go as far as that, and will allow a plaintiff to recover for such financial items as profits lost or money spent as a result of another’s negligent damage to property only if the plaintiff had a proprietary or possessory right to that property, as discussed in 13.55–13.62. Where the plaintiff’s loss arises because a house or other structure that has been acquired turns out to have been defectively constructed, the judicial response in Australia and New Zealand (once again differing from that in England) has been generally in favour of recovery. The view has been taken, as is explained in 13.63–13.76, that the necessary limits on liability are a result of the fact that the complaint relates to no more than a single item of property. Similarly, if compensation is sought by those who would, but for the defendant’s negligence, have benefited under a testamentary disposition,

there is little difficulty in establishing a duty of care, since liability is naturally confined by the testator’s intentions. This aspect of the topic is considered in 13.77ff.

Losses consequent upon damage to another’s property139 13.45 Liability for purely economic loss will be imposed on one who has knowledge, or the means of knowledge, that the plaintiff, as a member of a determinate class, is unable to protect himself or herself against the loss which results from the defendant’s negligent act or omission, provided that the imposition of such liability will not unduly fetter the defendant’s legitimate commercial interests. The first case to provide authority for this proposition is the decision of the High Court in Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’.140 The defendant, while carrying out dredging operations in Botany Bay, fractured a pipeline which carried petroleum products from a refinery on one side of the bay to the plaintiff’s terminal on the other side. The pipeline was owned by Australian Oil Refining Pty Ltd. As a result of the damage to the pipeline, Caltex had to use other, and more expensive, means of transporting the petroleum products. The plaintiff had not suffered any damage to its property, but the High Court upheld its claim to recover the purely economic loss of the additional costs of transportation. Although the judgments themselves display a measure of difference in expression, the High Court has subsequently141 indicated that no differences of principle between the members of that court were intended thereby.

13.46 The principle to be derived from the Caltex decision has been followed in two cases at first instance in New Zealand. In New Zealand Forest Products Ltd v Attorney-General, 142 post office workers, while digging a trench in which to lay telephone cables, severed an underground power cable which was owned by a local authority, and which, to the knowledge of the post office workers, supplied only the plaintiff’s manufacturing business. The disruption of the power supply to the plaintiff’s plant did not cause damage to any of its property, but led only to a loss of production and consequent loss of profits. However, that loss was held to be

recoverable, since the defendant’s employees were aware that the power cable supplied the plaintiff alone; [page 445] the plaintiff was therefore not only within the defendant’s contemplation, in that case as an individual, but also was powerless to take any measures to avert those losses. Similarly, in Mainguard Packaging Ltd v Hilton Haulage Ltd,143 a truck driver who negligently collided with a power pole, thereby bringing down the pole and the power line it carried, was held to owe a duty of care to the plaintiff company, the only business served by that power cable, for the loss caused by the consequent disruption of its operations.144

13.47 The Caltex decision has been subjected to criticism both by the Privy Council, in Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd,145 and by the Supreme Court of Canada, in Canadian National Rly Co v Norsk Pacific Steamship Co Ltd.146 In both cases, the criticism was directed to the comments of the members of the High Court that liability was imposed, on the facts of that case, almost entirely because the plaintiff must have been in the contemplation of the defendant as an individual, and not as a member of an unascertained class. Both the Privy Council147 and the Supreme Court of Canada148 considered that such a basis of liability gave rise to injustice on the grounds of its sheer arbitrariness. But despite this criticism the High Court has more recently affirmed the correctness of the Caltex decision, and provided a range of further factors to be taken into account in determining the existence of a duty of care.

13.48 In Perre v Apand Pty Ltd,149 the plaintiffs/appellants, potato growers in South Australia, suffered considerable financial harm when the defendants sold to another potato grower in the vicinity seed potatoes which turned out to be infected with bacterial wilt. The reason for the plaintiffs’ financial loss was that they had previously sold most of their crop in Western Australia, but legislation in that state imposed an embargo on the importation from interstate of any potatoes grown on property within 20 km of any outbreak of bacterial wilt in the previous five years. The conduct of the defendant in selling the infected potatoes, while not affecting any property owned by the

plaintiffs, caused them to lose their highly profitable market in Western Australia for at least five years. Although the trial judge and the Full Court of the Federal Court rejected the plaintiffs’ claim, a unanimous High Court found in their favour. In separate judgments, the various members of the High Court propounded a number of indicia which led to that conclusion.

13.49

One such factor was that Apand’s liability was necessarily determinate; the Western Australian legislation, of which the defendants were well aware, applied only to potatoes grown within the radius of 20 km of an infected property. Any financial loss suffered by farmers outside that range could not come within the scope of the [page 446] defendants’ duty, nor would they be liable to businesses such as those in the trucking industry which dealt only incidentally with potatoes.150 A similar example of the application of this factor of any possible liability being strictly limited in extent is Barclay v Penberthy.151 The defendant pilot took as passengers on a charter flight a group, all of whom were known by the defendant to be employees of the company which had chartered the plane. The High Court held that the defendant owed a duty of care to the company to protect it from the purely economic loss that it suffered when the plane crashed on take-off, causing injury to some of those employees.152

13.50 The point that this factor is concerned simply with the defendant’s capacity to estimate the likely ambit of persons who may be affected by its actions, and not with the absolute size of the group who may suffer economic loss, is vividly illustrated by the decision in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd.153 Following an explosion at the defendant’s gas processing plant at Longford, the whole of Victoria was left without gas supplies for some two weeks. Proceedings were brought against Esso by parties representing three groups, each of which had suffered a different type of economic harm — those businesses which had been forced to close down while the supply of gas was interrupted, domestic users of gas who had had to purchase appliances to replace those using gas, and workers who had been stood down while their respective employers had been unable to continue in

business. Gillard J held that, although the commercial users of gas numbered some 43,000, and the domestic users comprised approximately 1.1 million, neither constituted an indeterminate group for these purposes.154 The defendant had at least the means of ascertaining who might fall into that category. But the workers who had been stood down did constitute an indeterminate class, as Esso could not have any means of determining either how many employees any particular business had, nor the ability of any business to find alternative employment for its workforce.155 Similarly, in McMullin v ICI Australia Operations Pty Ltd,156 various businesses sought to recover the losses suffered when the export trade in beef was seriously affected by the discovery in that beef of residues of a pesticide manufactured by the defendant. Wilcox J held that the defendant owed a duty of care to meat processors and exporters, and to the owners of feedlots who had no more than possession of contaminated cattle, as they formed a sufficiently determinate group, whereas all of those who, although not having ownership or possession of contaminated cattle, had suffered a substantial loss of business, either because of governmental controls [page 447] introduced to prevent further contamination, or because of the decline in the export trade brought about by a fear of contamination, were held to be too indeterminate, and no duty of care was owed to them.157

13.51 A further factor to which the members of the High Court in Perre v Apand Pty Ltd paid regard was that a finding of liability on the part of the defendant company would not derogate from its pursuit of its own commercial advantage.158 The judges acknowledged that commercial activity by anyone in a competitive environment is likely to cause economic harm to others in the same field of commerce, and that to impose liability for negligent conduct may stifle that commercial activity. However, on the facts of that case, Apand’s conduct in negligently distributing infected seed acted directly against its own commercial interests. Hence, to impose liability for that conduct, and thereby possibly to deter it in the future, would promote rather than hinder competition.

13.52 The other factor which was seen as relevant by the High Court in Perre’s case as establishing liability was the vulnerability of the plaintiffs to this particular harm.159 The inability of the plaintiff to take measures to protect himself or herself from the consequences of the defendant’s actions is recognised as an important factor in determining a duty of care in all cases, and is by no means limited to circumstances where the plaintiff’s loss is purely financial: see 7.12. And on the facts of Perre’s case, that factor was clearly satisfied. The Perres not only could not have done anything to protect themselves against the sale of infected seed potatoes to their neighbours, they did not even know that such a sale had taken place. But in other circumstances it may not be so easy to determine whether this indicium has been fulfilled. Thus, in Perre, Gleeson CJ160 regarded the vulnerability of the Perres as being on a par with that of the plaintiff in the Caltex case, whereas McHugh J considered that such a parallel was not so easy to draw, observing that ‘courts must keep the contractual background in mind in determining whether a duty of care should be imposed’.161 On the facts of the Caltex decision, there was nothing to say that Caltex could not have bargained with the refinery company to be compensated by it for the costs of any disruption in the use of the pipeline, a cost which the refinery company could have recovered from the negligent dredge as a consequence of the damage to its property.162 But McHugh J went on to comment in the Perre case163 that plaintiffs may indeed be vulnerable, and rightly be owed a duty of care, when they are not able, in any meaningful way, to bargain to protect their own [page 448] interests,164 as was the case, in his Honour’s view, with the Perres, and as would also be the case of a plaintiff who has suffered economic loss through a disruption in the supply of a utility such as water, electricity or gas.165

13.53 Such a circumstance, of substantial economic loss being suffered by the interruption of the supply of gas, came before the Supreme Court of Victoria in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd.166 In that case Gillard J, while accepting that not even the commercial customers could have protected themselves against their losses by means of a contract with their supplier,167 nevertheless held that neither the commercial nor the domestic

customers were vulnerable, for the purposes of determining the existence of a duty of care. So far as the commercial customers were concerned, his Honour considered that they ought to have been aware of the possibility of an interruption in supply, and that they might either have installed additional equipment to cover any interruption in the supply from Esso,168 or have taken out their own (first party) insurance against the business losses flowing from that interruption.169 Similarly, he considered the domestic customers not to be vulnerable for these purposes, as they too ought to have realised the possibility of an interruption in supply, for whatever reason, and either to have equipped themselves with alternative means of heating and cooking, or have adjusted their lifestyle accordingly.170

13.54 The factor of vulnerability was one of the relevant issues in the decision of the Queensland Court of Appeal in Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’.171 Fortuna Seafoods processed and sold fish caught by a related company, Fortuna Fishing Pty Ltd. The defendant collided with and sank a vessel owned by Fortuna Fishing, with the result that Fortuna Seafoods was deprived of the opportunity to process and sell fish that it had previously obtained from that source. In Fortuna Seafoods’ action against the defendant, a majority of the court held that it was vulnerable to that loss, because, ‘as a company processing seafood it could do little to realistically protect itself against Eternal Wind’s negligent actions’.172 It might, however, be argued that on the setting up of the two companies Fortuna Seafoods might have bargained with Fortuna Fishing for the latter company to compensate Fortuna Seafoods for any loss suffered by a disruption in the supply of fish. Fortuna Fishing, it would appear, might have recovered the costs of such an indemnity from the defendant, Eternal Wind, as a nonremote consequence of the damage to its ship.173 [page 449]

Losses consequent on damage to the plaintiff’s property 13.55 If a plaintiff suffers damage to his or her property as a result of another’s negligence, any claim for compensation is clearly not for purely

economic loss, and might be thought to be outside the scope of this chapter. However, such a claim typically includes among the items of damage matters such as lost profits, payments made to third parties and other heads going beyond the mere cost of repair of the property. The type of compensation sought is therefore closely analogous to that considered throughout this chapter. Furthermore, both the House of Lords174 and the Privy Council175 have reaffirmed that, in their view, an adequate control device for limiting claims for financial detriment is that the plaintiff show that such loss is the non-remote consequence of damage to property in which the claimant has a proprietary or possessory interest. The Supreme Court of Canada has also concluded that the only exception to this general rule is where the property owner and the party which has suffered the economic loss are engaged in a common venture.176 The approach adopted generally in the United States is also similar to that taken in England.177 Since this chapter is, in general, concerned with the means which the courts have developed to limit liability for such harm, this particular control device is properly considered at this juncture. While there is little doubt as to the general principle that a plaintiff may recover for all the financial harm which is a direct consequence of damage to property, that principle has been limited by the requirement that the plaintiff have a possessory or proprietary interest in the damaged property. It is also open to criticism as a control device on the recovery of financial loss generally. Each of these matters will be considered in turn.

The general principle 13.56 A defendant who, by a negligent act or omission, causes damage to the plaintiff’s property is liable not only for the cost of repairing or restoring that property, but also for the further financial harm which is a direct consequence of the damage to the property. Thus, if a contractor negligently severs an electricity cable, gas main or water pipe which serves a number of factories that contractor will be liable both for the value of the material rendered useless by that disruption and for the profits which the plaintiff expected, but is no longer able, to make on selling that material.178 But the contractor will not be liable for any other profits lost to the manufacturer by reason solely of the disruption to production; that is regarded as no more than

an indirect consequence of the contractor’s negligence.179 So too, a manufacturer whose pumps proved to be defective was held liable to the owner of a lobster farm, when the defect caused most of the lobsters to die, for the value of [page 450] that stock and the profits expected to be made on its sale.180 When a local authority constructed various works which led to the flooding of a hotel, it was held liable both for the subsequent loss of business and for the capital loss on a forced sale, both being regarded as direct and non-remote consequences of the flooding.181 But if two ships collide in coastal waters, and the resultant pollution of the sea leads to a temporary embargo on its use, none of those who are thereby prevented from exploiting the waters for recreational purposes — such as marina operators, fishing tackle shops or the proprietors of seafood restaurants — may recover their losses, for no property belonging to any plaintiff has been damaged.182

13.57 For a plaintiff to recover for financial harm in these circumstances, in addition to showing that such harm is the direct result of the damage to property, it must be proved, in accordance with the normal principles of causation discussed in 9.2, that there has been no break in the causal link between the property damage and the losses claimed. So, the forced sale by the hotel owner, in the example given above, was not regarded as severing the causal chain. But, on the other hand, a payment made by a tanker owner to compensate landowners for the effects of an oil spillage brought about by the defendant’s negligence was treated as sufficiently voluntary and independent to break the causal nexus with that negligence. The payment was not, therefore, recoverable by the tanker owner from the defendant.183

Plaintiff must have proprietary or possessory right 13.58

The general principle discussed above applies only when the property damaged by the defendant is that to which the plaintiff has a proprietary or possessory right at the time that the injury occurred. This limitation stems from the decision of the Court of Queen’s Bench in Cattle v

Stockton Waterworks Co,184 in which the plaintiff, a contractor, while digging a tunnel through land owned by one Knight, was impeded in the task by water seeping from the defendant’s water mains. The delay caused loss to the plaintiff, since his contract with Knight had been for a lump sum, but he was held not to be entitled to recover that loss from the defendant.

13.59 It is likely that the decision in Cattle’s case was based on the then current views on remoteness of damage,185 but even in the half century after it was decided, it was interpreted more broadly as denying relief to anyone whose loss resulted from injury to another’s property.186 This latter interpretation of Cattle’s case, while rejected by the High Court of Australia and in New Zealand (see 13.45 and 13.46), has been reaffirmed by the Privy Council (ironically in an appeal from [page 451] New South Wales) and by the House of Lords. In Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd,187 the Privy Council concluded that a time charterer was not able to sue the owner of a ship which, by negligent navigation, had collided with the chartered vessel, the time charterer’s loss comprising the amount of hire payable while the vessel was being repaired. And, in Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd,188 the House of Lords held that a buyer of goods, to whom the risk but not the property had passed, had no right of action against a shipowner by whose alleged negligence the goods had been damaged.

13.60 The English Court of Appeal has recently expanded the notion of what constitutes a proprietary or possessory right to property to include the beneficial owner of that property as well as the legal owner. In Shell UK Ltd v Total UK Ltd,189 an oil storage facility near London was severely damaged by an explosion and fire which had been caused by the admitted carelessness of the defendant. The damage led directly to the plaintiff suffering considerable financial loss, as it was unable to supply fuel to its existing customers other than in very reduced quantities. However, the storage facility was owned by a non-trading service company, and the plaintiff had no more than a part beneficial interest in that company. Although the trial judge held

that the plaintiff could not recover, as it was not the legal owner of the damaged property, the Court of Appeal upheld the plaintiff’s appeal, on the basis that the defendant was liable for the foreseeable consequences of the damage to property, such as the extra expenditure to which the beneficial owner was put, and the loss of profits which it suffered.190

Criticism of this principle as a means of limiting liability 13.61 Both the Privy Council in the Candlewood case and the House of Lords in the Aliakmon case made it clear that their respective decisions were based on the need to continue to provide a means of controlling liability for economic loss. Such control, it was said, was best provided for by requiring the plaintiff to show that the loss was the direct consequence of damage to property in which he or she had a proprietary or possessory right. However, that justification is difficult to reconcile with the facts before each court. In the Candlewood case, the most for which the defendant could have been liable, had the vessel not been chartered, was the cost of the repairs and the cost to the owner of the loss of use of the ship. To deny the time charterers the right to recover the part of that loss which they suffered, on the basis that they had no more than a contractual right to the use of the ship, was to grant a windfall benefit to the defendants. The Privy Council, while acknowledging the force of that argument, considered191 that to accede to it would open up an ‘exceedingly wide new range of liability’. But it may also be said that this fear would have been unfounded, and the defendants would not have received an unexpected benefit, had the time charterers [page 452] been able to recover their losses on the footing that the defendants had the means of knowledge that the time charterers individually were likely to suffer loss as a result of the collision.192 A similar point may be made about the Aliakmon case, in that the greatest amount for which the defendant shipowners might have been liable, had they been sued by the sellers rather than the buyers, was the diminution in the value of the goods caused by their negligence. The decision can therefore

scarcely be justified on the ground that to allow the buyers a right of action would extend a tortfeasor’s liability to intolerable limits.193

13.62 These two decisions, on their particular facts, are poor illustrations of the need to find a means of controlling liability for economic loss. But, on the more general level, serious doubts have been raised as to the propriety of the rule which confines the recovery of economic harm to those who suffer that loss as a direct consequence of damage to their property. Some of these doubts have been summarised by Stephen J in the Caltex case194 when he said of that rule, first, that it is draconic, in that it ‘operates to confer upon … physical injury a special status unexplained either by logic or by common experience’, secondly, that it is arbitrary, in that it may make the right to recovery ‘depend upon the precise terms of a contract between the injured person and a third party’195 and thirdly, that it lacks any clear basis in history or principle.196 And concerns as to the propriety of the rule are increased when reference is made to the way in which this principle is applied in the United States. It has already been noted that in that country, if the defendant’s negligent act leads to pollution of coastal waters, the losses suffered by those who are prevented from exploiting those waters for recreational purposes are not recoverable.197 But those who are prevented, by the defendant’s negligence, from exploiting the sea for commercial purposes — that is, commercial fishers and the like — are able to recover their losses,198 one possible basis for that distinction being that such persons have a sufficiently proprietary interest in the fish which they would otherwise have caught to bring them within the terms of the rule.199 A rule which admits of such an exception commands little respect. [page 453]

Defective property 13.63 The preceding paragraphs, 13.55–13.62, were concerned with harm which had been caused to the plaintiff’s property by the impact thereon of the effect of the defendant’s negligent act or omission, rendering the property of less worth than it had been previously. This part is concerned with those instances in which the plaintiff’s complaint is that his or her property has

turned out always to have been defective as a result of the defendant’s negligence. Although it is difficult to see the distinction in terms of principle, the courts have dealt differently with chattels, when compared to their treatment of buildings. The two types of property are therefore discussed separately below.

Chattels 13.64 In both Australia and New Zealand, if a chattel purchased by the plaintiff is found to have been defectively manufactured, and thereby causes financial harm, compensation for that loss or damage may be claimed directly against the manufacturer or importer, under either the Australian Consumer Law Pt 3-2 Div 1 or the Consumer Guarantees Act 1993 (NZ) Pt III respectively. The plaintiff need only show, for instance, that the goods were not of an acceptable quality; the manufacturer may be liable, despite having taken all reasonable care. But if these statutory provisions are not applicable, it is unlikely that a manufacturer of chattels would be regarded as owing a duty of care to a consumer or other person in the chain of distribution with respect to purely financial harm suffered as a result of defective manufacture.200

13.65 This is not to say that if a chattel turns out to have a latent defect, the person who owns it at the time when the defect comes to light has no right of recourse, should the defect be the result of carelessness in the chain of supply. In Rivtow Marine Ltd v Washington Iron Works,201 Laskin J, dissenting from his fellow members of the Supreme Court of Canada, argued that the owner of a negligently designed or manufactured chattel should be able to recover the economic loss suffered by repairing the chattel, and thereby preventing it from causing physical injury or property damage. In his Lordship’s view, the rationale for holding a negligent manufacturer liable for physical injury or property damage to those who come within the ambit of a duty of care ‘should equally support … recovery in the case where … there is a threat of physical harm and the plaintiff is in the class of those who are foreseeably threatened’.202

Buildings

13.66 If it is a building which is discovered to have been constructed defectively, the person who owns the structure at the time the defect comes to light may, in the light of Australian and New Zealand authorities, in many circumstances recover [page 454] the diminution in value caused by the discovery of that defect from at least some of the parties involved in the original construction. It is the purpose of the following paragraphs to consider which of those parties may be so liable, and in which circumstances liability may be denied. The point must be made at the outset that this aspect of liability applies in Australia and New Zealand only. In England, neither those involved in the construction of a defective building, nor the local authority which carried out any inspection or certification of the structure, owes a duty of care to the subsequent owner.203 And in the United States and Canada a builder is liable to a subsequent owner only for the cost of repairing dangerous defects and not for a fall in value when shoddy work is discovered.204

13.67 Both in Australia205 and New Zealand,206 liability for a defective building is based on a variety of factors. Among them is the fact of reliance by the plaintiff on the defendant’s skill and the acceptance by the latter that such reliance will be reposed in his or her skill, together with the vulnerability of the plaintiff to that harm. The issue is seen, to some extent, as developing the law along lines parallel to those set by Hedley Byrne & Co Ltd v Heller & Partners Ltd,207 but with a natural safeguard against any fear of indeterminate liability. While words may be spread by repetition to an infinite number of listeners, leading to a need to control the extent of liability of the originator of those words, a defect in a building — even one so serious as to require its demolition — can never cause loss any greater than the value of that structure at the time that the defect is discovered, and the cause of action accrues. To ascertain who may be liable, it is sufficient to consider those on whom the current owner may have relied, and whether they had assumed that responsibility.

13.68 Builder, engineer and architect It has been accepted in New

Zealand since Bowen v Paramount Builders (Hamilton) Ltd208 was decided by the Court of Appeal in 1977 that a professional builder owes a duty of care in relation to latent structural defects209 to whoever should happen to own the house at the time the defects are discovered. The same result had been arrived at in a series of first instance judgments in Australia,210 the correctness of which was confirmed by the High Court in Bryan v Maloney.211 The owner of a house may, in the absence of proof to the contrary, be assumed to rely on a professional builder to carry out [page 455] the work with care and skill,212 and the builder generally accepts the responsibility arising from that reliance. It has been accepted in New Zealand that the same reliance and assumption of responsibility may also arise as between a purchaser and owner–builder,213 although that proposition has been doubted in Australia.214 It was at one stage held that if the building is used for commercial purposes, there is no assumption that the owner has relied on the builder’s care and skill, and hence that the latter owes no duty of care to the former.215 However, the High Court, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd,216 held that such a distinction was completely arbitrary and had no basis in principle.

13.69 While denying any distinction should be made between domestic and commercial property, the High Court in the Woolcock Street case introduced the factor of vulnerability in determining whether (in that case) an engineer, who had been responsible for the design of the foundations of the building, owed a duty of care to the second owner of the building. It was held that the owner was not vulnerable to the necessary degree because it had not proved that it had been unable to gain some protection against the possibility of the defect that had occurred. The court appeared to assume that the purchaser of a commercial property can bargain for some form of contractual protection, or have an expert investigation made of the premises prior to purchase. The contractual protection envisaged was either to take an assignment of such rights as the original owner may have had against the builder, or to obtain a warranty as to the fitness of the building from the vendor. While these forms of protection appear to be effective for the second or subsequent owner of

property, it has been pointed out that it is very unlikely that any subsequent purchaser would in fact follow any of these courses of action,217 and that any one of them could be provided only at prohibitive cost.218 It would appear that the principal effect of the Woolcock Street case is to clarify the matters which a plaintiff must prove in order to establish a duty of care.

13.70 The common law principle established by Bryan v Maloney has to some extent been overtaken by legislation, at least in relation to domestic buildings. All of the Australian jurisdictions (other than Western Australia and the Northern Territory) and New Zealand have enacted provisions219 which not only impose statutory warranties of quality on the builder and provide for compulsory insurance by the [page 456] builder in case of default, but also ensure that this protection inures for the benefit of subsequent purchasers of the home. However, Bryan v Maloney is still of some relevance even in relation to private dwellings. The above legislation fixes a limitation period by reference to the time when the breach of the statutory warranty occurred, whereas liability under Bryan v Maloney, being based solely on the negligence of the builder, has a limitation period running from the time when the defect was discovered or discoverable: see 28.15.

13.71 Apart from the liability of the builder, it is also clear that an engineer, architect or other professional person engaged by the builder in the construction process will owe a duty of care to the person who owns the building when any defect comes to light.220 Thus, the designer of an agricultural irrigation system, to be installed by a third party, was found to owe a duty of care to the owner of the farm on which the irrigation system was installed.221 And the engineer or architect will not necessarily be absolved from that duty despite the current owner having engaged another professional to examine the building prior to purchase.222

13.72 The only matter about which some doubt persists is whether the duty owed by a builder, engineer or architect is affected by any terms of limitation or exclusion in the contract which any of them may have had with the

original owner. While the builder might properly claim that it would be unjust to expect a standard of skill and care higher than that which had been promised to the original owner, the subsequent purchaser might equally urge that he or she should not be bound by the terms of a contract to which that purchaser was not a party and of which he or she knew nothing. Although the issue has not been the subject of decision yet, it appears that while such a contract could not affect the existence of a duty of care to the subsequent purchaser, it would be relevant in determining what standard was to be expected of the builder, engineer or architect.223

13.73 Local authority Until the early years of this century, there was no doubt that, in New Zealand, a local authority owed a duty to the subsequent purchaser of a domestic dwelling to take care in carrying out inspections of the structure while it is in the process of construction. This principle was established by the Court of Appeal in 1979, in Mt Albert Borough Council v Johnson,224 which was followed by a steady stream of cases and reaffirmed by the Court of Appeal and the Privy Council in Invercargill City Council v Hamlin.225 The basis of the last-named decision was that homeowners in that country had for more than two decades relied upon local authority building inspectors to see that dwellings were constructed with skill and [page 457] care, and (what is more important for present purposes) that local authorities had accepted that role and assumed responsibility, together with the builder, for the proper construction of the house or other building. However, in the first decade of this century the authority of the Hamlin case was challenged, on the basis that there had been a substantial change in the legislative framework relating to the building industry. A series of decisions culminated in an appeal by the North Shore City Council to the Supreme Court of New Zealand,226 in which the court held that local authorities owed a duty of care, in their inspection role, to owners, whether original or subsequent, of premises designed to be used as homes.227 In a subsequent appeal to the Supreme Court in relation to a 23 storey structure containing 249 individually-owned hotel rooms and six penthouse apartments,228 it was held that no distinction could be drawn between

buildings designed to be used as homes and commercial buildings, and that local authorities owed a duty of care to the owners of any type of structure.229 The court made it clear that the duty extends to situations in which architects, engineers and other professionals had been involved in the construction, and to cases where the owner was not the occupier. The rationale for imposing this duty of care lay in the control which local authorities have over all aspects of a building project, and in the reliance which owners place on councils to exercise that control with due care, especially in relation to features which are covered up in the course of construction.

13.74 The possible liability of a local authority in Australia is far less certain. While homeowners in Australia may well rely on a local authority to carry out an independent check on the work of a builder, it is difficult to predicate that local authorities have assumed that responsibility. Although there have been two decisions in New South Wales in which the owner of a defectively built house successfully sued the local authority, in both cases the liability was based on a negligent misrepresentation made by the local authority in, or in the course of issuing, a certificate of occupancy and use.230 And in Makawe Pty Ltd v Randwick City Council,231 it was held that the fact that the defendant was a local government body was one among a number of salient features to take into account, as in any other case of possible liability for purely economic loss, as discussed in 13.48–13.54 and in Ryde City Council v Tourtouras232 a referee appointed by the District Court found that the council had been negligent in failing to detect defects in construction, a conclusion which was not challenged in the subsequent litigation. In Victoria a local council has been held liable to a building owner by virtue of the terms of local legislation and not on the basis of the common law principles discussed here.233 [page 458]

13.75 When a local authority issues a certificate of occupancy and use, the sole purpose of the certificate is to prevent the council from later asserting that the building must be demolished because of its non-compliance with the plans and specifications. In some cases, the legislation relating to the issue of such certificates makes express provision to that end.234 In more general

terms, it was asserted by Deane J in Sutherland Shire Council v Heyman,235 that such legislation: … has never traditionally been seen as intended to place on a local council the duty or burden of protecting an owner of premises from mere economic loss sustained by reason of the negligent erection, by someone other than the council, of a building on his or her land.

If there is no assumption of responsibility by the local body, one of the essential elements of a duty of care to the subsequent owners of a building is missing.

13.76 Subcontractors Although there is no reason to doubt that, on the application of the principles discussed above, a subcontractor to the builder would owe a duty of care to a subsequent owner of the premises, it is most unlikely that the original owner would be able to sue a subcontractor in tort for damage resulting from defective workmanship.236 While a subsequent owner may well be able to demonstrate the necessary reliance and assumption of responsibility, it is improbable that the original owner would be able to prove those twin elements of the duty of care. The original owner’s remedy, if any, lies in contract with the head contractor. The House of Lords on appeal from Scotland, in Junior Books Ltd v Veitchi Co Ltd,237 concluded that a building owner could sue a subcontractor in tort for the loss suffered through the latter’s defective workmanship. But that case has lost all authority in England,238 and there is a series of decisions at first instance in Australia the effect of which is to deny that there is sufficient relationship between such parties to found a duty of care.239 The parties, it is said, having structured their relationship in such a way as to preclude any contractual liability, because of the operation of the doctrine of [page 459] privity of contract, it would be inconsistent with their presumed intentions to find an assumption of responsibility by the subcontractor to the building owner.240

Economic loss and wills

13.77 A person who does not receive a benefit which a testator intended to bestow because of the carelessness of the testator’s professional adviser in the preparation, drawing or execution of a will has a good cause of action against that adviser for the loss thereby suffered. This principle was established in New Zealand in 1983,241 in England in 1995,242 in Australia in 1997243 and in Canada in 2000.244

13.78 Reference has been made throughout this chapter to the fact that, in determining whether there is a duty of care to prevent purely economic loss, the courts are concerned to ensure that liability is limited to something more confined than that determined by notions of reasonable foreseeability. Those limits have been found by the application of such requirements as reliance by the plaintiff on the defendant, an assumption of responsibility by the defendant towards the plaintiff, the vulnerability of the plaintiff to the loss and the plaintiff’s membership of a small and ascertained class. The relationship between a testator’s professional adviser245 and a disappointed beneficiary, while not being marked by reliance by the latter on the former, is one in which the adviser has clearly assumed the responsibility for care in the preparation of the will. It is also a relationship which, by reason of the beneficiary’s possible ignorance of the testator’s intentions, leaves the beneficiary peculiarly vulnerable to any loss suffered, and is one in which the number of possible claimants, and the value of their disappointed expectations, is known to the adviser at the time that the professional duties are first undertaken. Furthermore, such a situation has been seen246 as one in which the law of negligence must be called in aid to fill what would otherwise be a gap in the law. If there were no duty of care owed to the client, the only person whose rights have been infringed (the testator and, after the death, the estate) has suffered no loss, and the only person who has suffered a loss would not have a valid claim.

13.79 The liability under consideration is subject to some limitations flowing from the fact that it is a means whereby the law of tort is used to correct a perceived [page 460]

deficiency in the law of contract. First, it applies only to carelessness in the drawing and execution of a will, and to ensuring that the property intended by the testator to form part of the estate is available for distribution.247 The liability does not extend to render liable to a beneficiary a solicitor who fails to advise the testator, in other independent transactions, of the best means of conserving the latter’s estate.248 Secondly, liability accrues only if the solicitor’s error remains undiscovered until after the testator’s death, and is therefore no longer remediable;249 it may be assumed that a legal adviser would generally not owe a duty of care to those intended to benefit under an inter vivos transaction, unless the circumstances were such as to prevent the transaction from being rectified.250 And, thirdly, the professional adviser’s liability is subject to any contrary provisions which may be implied in the contract of retainer.251 _______________ 1.

See the broad-ranging and scholarly discussion of this area by Stapleton, ‘Duty of Care and Economic Loss: A Wider Agenda’ (1991) 107 LQR 249; Stapleton, ‘In Restraint of Tort’ in Birks (ed), The Frontiers of Liability, 1994, Vol 2, p 83; Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301.

2.

The actio per quod servitium amisit considered in 20.9.

3.

It is not, however, always self-evident that a particular loss is an aspect of property damage or is purely economic: see, eg, Bacardi-Martini Beverages Ltd v Thomas Hardy Packaging Ltd [2002] 1 Lloyd’s Rep 62 at [22]–[29] per Tomlinson J (Eng HC).

4.

Mobil Oil Hong Kong Ltd v Hong Kong United Dockyards Ltd [1991] 1 Lloyd’s Rep 309 at 328– 9 (PC); cf Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211; [1995] 3 All ER 307 (HL) (plaintiff’s loss conceded to be to property only, but duty of care by defendant denied).

5.

L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385.

6.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 (HL).

7.

Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569; [1965] 3 All ER 560.

8.

New Zealand Forest Products Ltd v Attorney-General [1986] 1 NZLR 14.

9.

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227.

10.

Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 (CA); on appeal sub nom Rowling v Takaro Properties Ltd [1988] AC 473; 1 All ER 163 (PC).

11.

Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA) (aff’d [1996] AC 624; 1 All ER 756 (PC)); Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163.

12.

On the assessment of damages on this basis, see Marks v GIO Holdings Australia Ltd (1998) 196 CLR 494; 158 ALR 333.

13.

Gartside v Sheffield, Young & Ellis [1983] NZLR 37 (CA); White v Jones [1995] 2 AC 207; 1 All ER 691 (HL).

14.

Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687.

15.

Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69.

16.

174 NE 441 (1931) at 444.

17.

Candler v Crane, Christmas & Co [1951] 2 KB 164 at 203–4; 1 All ER 426 at 447 per Cohen LJ (CA) (but cf Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 487–8; [1963] 2 All ER 575 at 583–4 per Lord Reid (HL)); Scott Group Ltd v McFarlane [1978] 1 NZLR 553 at 563 per Richmond P (CA).

18.

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 568; 11 ALR 227 at 255 per Stephen J, at 591; 273 per Mason J; San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 354; 68 ALR 161 at 168 per Gibbs CJ, Mason, Wilson and Dawson JJ; at 367; 178 per Brennan J; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [32] per Gaudron J, at [106]–[113] per McHugh J; Gartside v Sheffield, Young & Ellis [1983] NZLR 37 at 51–2 per Richardson J (CA).

19.

Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 at 422 per Cooke J (CA); Scott Group Ltd v McFarlane [1978] 1 NZLR 553 at 571–2 per Woodhouse J (CA); see also Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [336]–[340] per Hayne J.

20.

The Caltex case (1976) 136 CLR 529 at 591; 11 ALR 227 at 273 per Mason J; the San Sebastian case (1986) 162 CLR 340 at 354; 68 ALR 161 at 168 per Gibbs CJ, Mason, Wilson and Dawson JJ.

21.

Cf Bolton v Stone [1951] AC 850; 1 All ER 1078 (HL); Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617; [1966] 2 All ER 709 (PC).

22.

[1964] AC 465; [1963] 2 All ER 575.

23.

For a discussion of this point, see Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 All ER 506 (HL) and the comment thereon by Lord Lloyd in Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 at 223; [1995] 3 All ER 307 at 315: ‘the law of tort is the general law, out of which the parties may, if they can, contract’.

24.

See, eg, Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 60; Johnson v Perez (1988) 166 CLR 351 at 363; 82 ALR 587 at 594 per Wilson, Toohey and Gaudron JJ: ‘The trend of modern authority is to apply the common law of negligence to professional relationships’; Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384; [1978] 3 All ER 571; Frost & Sutcliffe v Tuiara [2004] 1 NZLR 782 (CA); and see Martel Building Ltd v Canada (2000) 193 DLR (4th) 1 at [106] (SCC).

25.

Nielsen (FW) (Canberra) Pty Ltd v PDC Constructions (ACT) Pty Ltd (1987) 71 ACTR 1 at 5 per Kelly J; Greater Nottingham Co-operative Society Ltd v Cementation Piling & Foundations Ltd [1989] QB 71; [1988] 2 All ER 971 (CA).

26.

Miller (RW) & Co Pty Ltd v Krupp (Australia) Pty Ltd (1992) 11 BCL 74 at 149–52 per Giles J (NSWSC).

27.

Willis v Castelein [1993] 3 NZLR 103.

28.

Simms Jones Ltd v Protochem Trading NZ Ltd [1993] 3 NZLR 369.

29.

McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230; 246 ALR 514 (FC) at [66] per Emmett J.

30.

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [1145], [1146]; see 13.53.

31.

Gartside v Sheffield, Young & Ellis [1993] NZLR 37 (CA); White v Jones [1995] 2 AC 207; 1

All ER 691 (HL); Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687; see 13.77; see also Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 (CA); Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163; see 13.68. 32.

One exception was Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520; [1982] 3 All ER 201 (HL), but that case has lost all authority: see 13.76.

33.

South Pacific Manufacturing Co Ltd v NZ Security Consultants & Investigations Ltd [1992] 2 NZLR 282 (CA); Turton (RM) & Co Ltd v Kerslake and Partners [2000] 3 NZLR 406 (CA); Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 (CA); Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785; 2 All ER 145 (HL); Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758; 1 All ER 791 (CA); Nielsen (FW) (Canberra) Pty Ltd v PDC Constructions (ACT) Pty Ltd (1987) 71 ACTR 1 at 8 per Kelly J; Design Services Ltd v Canada (2008) 293 DLR (4th) 437 (SCC).

34.

(1995) 182 CLR 609 at 618; 128 ALR 163 at 166 per Mason CJ, Deane and Gaudron JJ; see also Brennan J at 632; 176; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 503; 60 ALR 1 at 59; Hill v Van Erp (1997) 188 CLR 159 at 190; 142 ALR 687 at 709 per Toohey J; at 211; 726 per McHugh J; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [345] per Hayne J; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 at [21] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

35.

Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd [1986] AC 1 at 25; [1985] 2 All ER 935 at 945 per Lord Fraser (PC); Canadian National Railway Co v Norsk Pacific Steamship Co Ltd (1992) 91 DLR (4th) 289 at 354–5 per La Forest J (SCC).

36.

See, eg, the Norsk Pacific case (1992) 91 DLR (4th) at 378 per McLachlin J.

37.

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 at 38; [1972] 3 All ER 557 at 563–4; see also Lamb v Camden London Borough Council [1981] QB 625 at 637–8; 2 All ER 408 at 414 per Lord Denning MR (CA); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [1101].

38.

Canadian National Railway Co v Norsk Pacific Steamship Co Ltd (1992) 91 DLR (4th) 289 at 350; see also Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [1105].

39.

Scott Group Ltd v McFarlane [1978] 1 NZLR 553 at 572.

40.

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 580–1; 11 ALR 227 at 264–5 per Stephen J; Morgan Crucible Co plc v Hill Samuel & Co Ltd [1991] Ch 295 at 303; [1990] 3 All ER 330 at 335 per Hoffmann J; see also Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 at 229; [1995] 3 All ER 307 at 320–1 per Lord Lloyd (HL).

41.

(1976) 136 CLR 529; 11 ALR 227.

42.

Ibid at 552; 243.

43.

Cf Yuen Kun Yeu v Attorney-General (Hong Kong) [1988] AC 175; [1987] 2 All ER 705 (PC).

44.

Although, as is discussed in 13.67, reliance plays a substantial role if the plaintiff’s complaint relates to the defendant’s negligence in constructing a defective building.

45.

It may also be observed that in England liability for purely economic loss is generally confined to that arising from negligent misstatements: cf Murphy v Brentwood District Council [1991] 1 AC 398 at 480–1; [1990] 2 All ER 908 at 929–30 per Lord Bridge (HL).

46.

[1964] AC 465; [1963] 2 All ER 575.

47.

See especially the judgment of the majority of the Privy Council in Mutual Life & Citizens

Assurance Co Ltd v Evatt [1971] AC 793; 1 All ER 150. 48.

One instance of the statutory basis of liability being wider than that in negligence is Travel Compensation Fund v Tambree (2005) 224 CLR 627; 222 ALR 263, discussed by Katter, ‘The Liability of Professionals to Third Parties for Negligent Misstatement Under Consumer Protection Legislation: Outflanking the Neighbourhood Principle’ (2007) 15 Tort L Rev 31.

49.

And, if the action is against the Crown, liability under the statutory provision is imposed only in so far as the Crown is ‘carrying on a business’. These limitations on the statutory liability are considered further in 22.4.

50.

Scott Group Ltd v McFarlane [1978] 1 NZLR 553 at 566 per Richmond P.

51.

[1971] AC 793; 1 All ER 150.

52.

Shaddock (L) & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; 36 ALR 385, as explained in San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 356; 68 ALR 161 at 170 per Gibbs CJ, Mason, Wilson and Dawson JJ, at 371; 181 per Brennan J.

53.

Esso Petroleum Co Ltd v Mardon [1975] QB 819; 1 All ER 203 (CA).

54.

Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 (CA); cf the doubts as to the existence of a duty expressed by the Privy Council on appeal, sub nom Rowling v Takaro Properties Ltd [1988] AC 473 at 501–3; 1 All ER 163 at 171–4; but see also Meates v A-G [1983] NZLR 308 at 333–4 per Woodhouse P and Ongley J, at 378–9 per Cooke J (CA).

55.

Allied Finance & Investment Ltd v Haddow & Co [1983] NZLR 22 at 24 per Cooke J, at 30 per Richardson J, at 35 per McMullan J; San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 355; 68 ALR 161 at 169.

56.

Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 180–1; [1994] 3 All ER 506 at 520–1 per Lord Goff (HL); see also Bryan v Maloney (1995) 182 CLR 609 at 624; 128 ALR 163 at 170.

57.

See, eg, MLC v Evatt (1968) 122 CLR 556 at 571 per Barwick CJ (HCA); [1971] AC 793 at 806; 1 All ER 150 at 158 per Lord Diplock (PC); Mohr v Cleaver [1986] WAR 67 (FC). In Chaundry v Prabhakar [1988] 3 All ER 718 (CA), the parties were close friends, but since the advice given by the defendant related to a serious matter (the purchase of a motor car), the plaintiff’s reliance thereon was reasonable in the circumstances.

58.

Lambert v Lewis [1982] AC 225 at 264; [1980] 1 All ER 978 at 1003 per Stephenson LJ (CA).

59.

Woollahra Municipal Council v Sved (1996) 40 NSWLR 101 at 110–11 per Priestley JA, at 126– 7 per Clarke JA, at 145–6 per Cole JA (CA); cf Shaddock v Parramatta (1981) 150 CLR 225 in which it was held that a response by telephone from an unidentified employee of the respondent did not render it liable.

60.

Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830; 2 All ER 577 (HL).

61.

Such was the case in, eg, Hedley Byrne v Heller [1964] AC 465; MLC v Evatt (1968) 122 CLR 556 and Shaddock v Parramatta (1981) 150 CLR 225 in all of which the response was made gratuitously.

62.

(2001) 206 CLR 1; 178 ALR 634.

63.

Ibid at [49] per Gleeson CJ, Gummow and Hayne JJ.

64.

Hedley Byrne & Co v Heller [1964] AC 465 at 486; [1963] 2 All ER 575 at 583 per Lord Reid (HL); see also Rawlinson & Brown Pty Ltd v Witham (1995) Aust Torts Reports 81–341 (NSWCA) (real estate agent’s statements about property made without qualification; held liable for inaccuracies); cf Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 at [86] per

Gaudron J. 65.

Spring v Guardian Assurance plc [1995] 2 AC 296; [1994] 3 All ER 129.

66.

But if such a statement is defamatory, it is the law of defamation which will determine liability, not the principles of negligence: Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; BellBooth Group Ltd v A-G [1989] 3 NZLR 148 (CA); see further 17.3.

67.

With the rejection of the majority opinion of the Privy Council in MLC v Evatt, such persons are not limited to members of a profession: Tilly v Toowoomba City Council (1989) 69 LGRA 399 (Qld FC).

68.

Shaddock v Parramatta (1981) 150 CLR 225; Buksh v Minister for Immigration (1991) 102 ALR 647 (Fed Ct); Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290; 116 ALR 460 (FC); Customs (Comptroller of) v Martin Square Motors Ltd [1993] 3 NZLR 289 (CA).

69.

See, eg, Scott Group Ltd v McFarlane [1978] 1 NZLR 553 (CA).

70.

This basis for liability has its origins in the Restatement, Torts (Second), sec 552; it was interpreted restrictively in MLC v Evatt [1971] AC 793 at 805; 1 All ER 150 at 157 per Lord Diplock (PC) (information on fellow subsidiary of defendant not sufficient) and in Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471 (CA) (commission to be received by real estate agent on sale of property not sufficient) (and see Plummer-Allison v Ayrey [1976] 2 NZLR 254), but more generously in O’Leary v Lamb (1973) 7 SASR 159 at 190–1 per Bray CJ. The relevant interest must be financial (San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 358; 68 ALR 161 at 171) and would include, eg, that of a contracting party (Esso Petroleum Co Ltd v Mardon [1975] QB 819; 1 All ER 203 (CA)).

71.

(1986) 162 CLR 340 at 357–8; 68 ALR 161 at 170–1 per Gibbs CJ, Mason, Wilson and Dawson JJ; cf the more cautious approach of Brennan J at 372; 181–2. The court found against liability on the basis that the nature of the alleged representation was such as not to induce reasonable reliance: see 13.33.

72.

For a full discussion of the circumstances in which a defendant might come under a duty of care in situations involving losses other than purely economic, see Chapter 7.

73.

Shaddock v Parramatta (1981) 150 CLR 225; 36 ALR 385; Dimond Manufacturing Co Ltd v Hamilton [1969] NZLR 609 (CA).

74.

[1964] AC 465; [1963] 2 All ER 575 (HL).

75.

See esp at 482; 580 per Lord Reid.

76.

[1986] 1 NZLR 576 (CA).

77.

See also Haig v Bamford (1976) 72 DLR (3d) 68 (SCC); Smith v Eric S Bush [1990] 1 AC 831; [1989] 2 All ER 514 (HL); Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 (Fed Ct, FC); Merrett v Babb [2001] Build LR 483 (Eng CA).

78.

Gordon v Moen [1971] NZLR 526 (marine surveyor liable to purchaser of boat who had relied on certification made for loan purposes); Rutherford v A-G [1976] 1 NZLR 403 (minister liable to purchaser of motor vehicle on statutorily required certificate of mechanical safety of vehicle); but cf A-G v Carter [2003] 3 NZLR 160 (CA) (legislative environment indicated that certificate was issued for safety purposes, not to protect economic interests).

79.

Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290; 116 ALR 460 (FC).

80.

Pisano v Fairfield Municipal Council (1991) 73 LGRA 184 (NSWCA); Woollahra Municipal Council v Sved (1996) 40 NSWLR 101 (CA).

81.

For a discussion of the issues see, eg, Nicholson, ‘Third Party Reliance on Negligent Advice’ (1991) 40 ICLQ 551; Hogg,‘Tortious Liability of Auditors to Third Parties: A Reassessment’ (1994) 18 UQLJ 79; Barker, ‘Divining an Approach to the Duty of Care: The New Zealand Court of Appeal and Claims for Negligent Misstatement’ (2001) 10 Otago L Rev 91.

82.

[1978] 1 NZLR 553 (CA); referred to with approval in South Pacific Manufacturing Co Ltd v NZ Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at 296 per Cooke P (CA).

83.

[1999] 2 NZLR 278.

84.

The respondents were found not to have sufficiently proved that they had specifically relied on the report, and so were held unable to recover. See also Price Waterhouse v Kwan [2000] 3 NZLR 39 (CA) (auditors of a firm of solicitors held to owe a duty of care to clients of the firm); Allison v KPMG Peat Marwick [2000] 1 NZLR 560 at [88] per Thomas J (CA).

85.

[1990] 2 AC 605; 1 All ER 568.

86.

See also Al Saudi Banque v Clarke Pixley [1990] Ch 313; [1989] 3 All ER 361; Galoo Ltd v Bright Grahame Murray [1995] 1 All ER 16 (CA), in neither of which was a duty of care established, but cf Law Society v KPMG Peat Marwick [2000] 4 All ER 540 (CA) (since one purpose of the defendant’s report to a firm of solicitors was to alert the Law Society to any matters requiring attention by the Society, a duty of care was established).

87.

(1997) 146 DLR (4th) 577.

88.

(1997) 188 CLR 241; 142 ALR 750.

89.

188 CLR at 275; 142 ALR at 776 per McHugh J; see also at 262; 765 per Toohey and Gaudron JJ.

90.

Ibid at 252; 757 per Brennan CJ; see also at 260; 764 per Toohey and Gaudron JJ.

91.

[1983] 3 NSWLR 221.

92.

Mansard Developments Pty Ltd v Town of Armadale (1985) 3 BCL 400 at 422–3 per Franklyn J (WASC); cf Ministry of Housing & Local Government v Sharp [1970] 2 QB 223; 1 All ER 1009 (CA).

93.

Evatt v MLC (1969) 69 SR (NSW) 50 at 70 per Asprey JA (FC); MLC v Evatt (1968) 122 CLR 556 at 591 per Taylor J.

94.

(1986) 162 CLR 340 at 356; 68 ALR 161 at 170.

95.

See also MLC v Evatt (1968) 122 CLR 556 at 572 per Barwick CJ; L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 at 242–3; 36 ALR 385 at 398 per Stephen J; Norris v Sibberas [1990] VR 161 at 173 per Marks J (App Div).

96.

See, eg, Commonwealth Bank v Smith (1991) 102 ALR 453 at 474–5 (Fed Ct, FC).

97.

[1983] NZLR 308 (CA).

98.

See also Rennie v Commonwealth (1995) 61 FCR 351 (FC) (government department liable for incorrect advice relating to the pension scheme which it administered); Marac Finance Ltd v Colmore-Williams [1988] 1 NZLR 625 (assurance by accountants that defendants’ liability under a guarantee would be limited held to be representation for these purposes); Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488 (CA) (government liable for statement about financial soundness of merchant bank to whom plaintiff had been asked to lend

money). 99.

(1986) 162 CLR 340; 68 ALR 161.

100. Ibid at 359; 172. See also Norris v Sibberas [1990] VR 161 at 175 per Marks J (App Div) (estate agent’s predictions about a business were so qualified as to have ‘little significant meaning’); Ta Ho Ma Pty Ltd Allen (1999) 47 NSWLR 1 (CA) (plaintiff held to have acted unreasonably in relying on a valuation some nine months after it had been made). 101. Finn, ‘Good Faith and Non-disclosure’ in Finn (ed), Essays on Torts, 1989, pp 170–8. 102. See generally MLC v Evatt (1968) 122 CLR 556 at 571 per Barwick CJ. 103. Abrams (J & JC) Ltd v Ancliffe [1978] 2 NZLR 420; Commonwealth Banking Corp v Speck (1988) 144 LSJS 17 (FC); Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd (1994) ATPR (Digest) 46–130 at 53,636 per Hedigan J (Vic SC); Ellis (Richard) (WA) Pty Ltd v Mallins Investments Pty Ltd (1995) Aust Torts Reports 81–319 at 62,086 per Malcolm CJ (WAFC). 104. Conlon v Simms [2007] 3 All ER 802 (CA). 105. Noor Al Houda Islamic College Pty Ltd v Bankstown Airport Ltd (2005) 215 ALR 625 (NSWSC). 106. L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 156 CLR 225; 36 ALR 385; Brown v Heathcote County Council [1987] 1 NZLR 720 (PC); Finlay v Rowlands (1987) Aust Torts Reports 80–113 (Tas SC); Lennon v Metropolitan Police Commissioner [2004] 2 All ER 266 (CA). 107. Lloyd v Citicorp Australia Ltd (1986) 11 NSWLR 286 at 288 per Rogers J; Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 at 168; 55 ALR 509 at 520 per Brennan J; Hanflex Pty Ltd v NS Hope & Associates [1990] 2 Qd R 218 at 226–7 (FC); Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA). 108. Sacca v Adam (1983) 33 SASR 429 (FC); Lloyd v Citicorp Australia Ltd (1986) 11 NSWLR 286 at 288 per Rogers J; Foti v Banque Nationale de Paris (1989) 54 SASR 354; Commonwealth Bank v Mehta (1991) 23 NSWLR 84 (CA); Craig v Troy (1997) 16 WAR 96 (FC); Doolan v Renkon Pty Ltd [2011] TASFC 4 at [42]–[44]. 109. Yuen Kun Yeu v A-G (Hong Kong) [1988] AC 175; [1987] 2 All ER 705 (PC); Deloitte Haskins & Sells v National Mutual Life Nominees Ltd [1993] AC 774; 2 All ER 1015 (PC); see also Cooper Henderson Finance Ltd v Colonial Mutual General Insurance Co Ltd [1990] 1 NZLR 1 (CA) (tort duty of disclosure not to extend beyond that imposed by contract). 110. (1988) 164 CLR 539; 78 ALR 69. 111. Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181; [2006] 4 All ER 256. 112. Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1990] 1 QB 665; [1989] 2 All ER 952 (CA) (aff’d on different grounds [1991] 2 AC 249; [1990] 2 All ER 947 (HL)); the breach by the insurer of its obligation of the utmost good faith would have entitled the insured to rescind the contract of insurance, but that remedy was inappropriate in the circumstances. See also Bentley v Wright [1997] 2 VR 175 (CA) (bailee of ostrich under no obligation to inform intending purchaser of any matters relating to the bird). 113. Jackson, ‘Tortious Disclaimers and Unconscionability’ (1991) 65 ALJ 507.

Negligent

Misstatement:

Reasonableness

and

114. Burke v Forbes Shire Council (1987) 63 LGRA 1 at 20 per Allen J (NSWSC), in which an ambiguity in a disclaimer was construed against the party seeking to rely on it.

115. [1964] AC 465; [1963] 2 All ER 575. 116. See, eg, at 492–3; 586–7 per Lord Reid. 117. [1983] 3 NSWLR 221; see also Mackman v Stengold Pty Ltd (1991) ATPR 41–105 (Fed Ct). 118. (2007) 16 VR 563 (CA). 119. For a discussion of causation in the context of a claim for purely economic loss, see Takaro Properties Ltd v Rowling [1986] 1 NZLR 22, esp at 61–2 per Woodhouse P (CA), rev’d on other grounds, sub nom Rowling v Takaro Properties Ltd [1988] AC 473; 1 All ER 163 (PC); Barnes v Hay (1988) 12 NSWLR 337 (CA); Thorpe Nominees Pty Ltd v Henderson [1988] 2 Qd R 216 (FC); Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1991] 2 AC 249; [1990] 2 All ER 947 (HL). 120. See, eg, Kullack v Australia & New Zealand Banking Group Ltd (1988) ATPR 40–861; Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 324–6 per McHugh JA (CA); Deloitte Haskins & Sells v National Mutual Life Nominees Ltd [1993] AC 774 at 788; 2 All ER 1015 at 1023–4 (PC). 121. State Bank of NSW Ltd v Yee (1994) 33 NSWLR 618; Galoo Ltd v Bright Grahame Murray [1995] 1 All ER 16 (CA); Fleming v Securities Commission [1995] 2 NZLR 514 (CA); Brown v KMR Services Ltd [1995] 4 All ER 598 (CA); as to the matters which a plaintiff must prove where the defendant’s negligence consists of an omission, see Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907 (CA). 122. (1999) 199 CLR 413; 163 ALR 611. 123. [1997] AC 191; [1996] 3 All ER 365. See Murdoch, ‘Negligent Valuers, Falling Markets and Risk Allocation’ (2000) 8 Tort L Rev 183. 124. See also Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 (CA); Bristol and West Building Society v Mothew [1998] Ch 1; [1996] 4 All ER 698 (CA). As to the effect of the plaintiff’s contributory negligence on such an outcome, see Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 AC 190; [1999] 1 All ER 833. 125. South Australia v Johnson (1982) 42 ALR 161 at 170 (HCA); Barnes v Hay (1988) 12 NSWLR 337 (CA); Kimber (David) TV & Sound Ltd v Kaiapoi Borough Council [1988] 1 NZLR 376 (CA); Rubenstein v HSBC Bank plc [2012] All ER (D) 75 (Sep) at [113]–[125] per Rix LJ, for the court. 126. State Bank of NSW Ltd v Yee (1994) 33 NSWLR 618 at 628 per Giles J. 127. On which see 11.2. 128. Brown Falconer Group Pty Ltd v South Parklands Hockey & Tennis Centre Inc (2005) 91 SASR 152 (FC). 129. Scott Group Ltd v McFarlane [1978] 1 NZLR 553 at 585 per Cooke J (CA); Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 12; 63 ALR 600 at 607 per Mason, Wilson and Dawson JJ. 130. Ellul v Oakes (1972) 3 SASR 377 (FC) (misstatement by vendor of house); Walker Hobson & Hill Ltd v Johnson [1981] 2 NZLR 532 (misstatement by assignor of licence). And see HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; 211 ALR 79. 131. (1986) 160 CLR 1; 63 ALR 600. 132. Ibid at 13; 608 per Mason, Wilson and Dawson JJ.

133. Cf Kyogle Shire Council v Francis (1988) 13 NSWLR 396 (CA), in which a majority of the court rejected the plaintiff’s claim for opportunities of profit foregone, principally on the basis of his failure to prove that loss with sufficient particularity. 134. Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 (CA) (rev’d on other grounds [1988] AC 473; 1 All ER 163 (PC)); Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16; cf Rainbow Industrial Caterers Ltd v Canadian National Rly Co (1991) 84 DLR (4th) 291 (SCC). 135. JEB Fasteners Ltd v Marks, Bloom & Co [1981] 3 All ER 289 at 297 per Woolf J; cf Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560 at 574; 1 All ER 865 at 876 per Nicholls V-C: defendant having intended that plaintiff rely on the misstatement, it would generally be unjust to treat that reliance as evidence of carelessness. 136. Kendall Wilson Securities Ltd v Barraclough [1986] 1 NZLR 576 (CA); cf Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155, discussed in 10.16. 137. Daniels v Anderson (1995) 37 NSWLR 438 at 567 per Clarke and Sheller JJA (CA) (affirming AWA Ltd v Daniels (1992) 7 ACSR 759 (NSWSC)); Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30 at 76 per Thomas J. 138. Civil Law (Wrongs) Act 2002 (ACT) Sch 4; Professional Standards Act 1994 (NSW); Professional Standards Act 2004 (NT); Professional Standards Act 2004 (Qld); Professional Standards Act 2004 (SA); Professional Standards Act 2005 (Tas); Professional Standards Act 2003 (Vic); Professional Standards Act 1997 (WA). 139. See, generally, Barker, ‘Relational Economic Loss and Indeterminacy: The Search for Rational Limits’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, Ch 9. 140. (1976) 136 CLR 529; 11 ALR 227. 141. San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 354; 68 ALR 161 at 168. 142. [1986] 1 NZLR 14. 143. [1990] 1 NZLR 360. 144. See also Port v New Zealand Dairy Board [1982] 2 NZLR 282 (plaintiff recovered losses flowing from defendant’s negligent conduct of artificial insemination which resulted in plaintiff’s herd bearing cross-breed, rather than pure-bred, calves). 145. [1986] AC 1; [1985] 2 All ER 935. The case is considered further in 13.59. 146. (1992) 91 DLR (4th) 289. 147. [1986] AC at 24; [1985] 2 All ER at 944–5. 148. (1992) 91 DLR (4th) at 341–2 per La Forest J, at 377 per McLachlin J. It may be observed that the majority in that case arrived at their conclusion for two mutually inconsistent reasons, but unanimity of judicial view was restored in Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd (1997) 153 DLR (4th) 385 (SCC). 149. (1999) 198 CLR 180; 164 ALR 606. 150. See, eg, Gaudron J at [32], McHugh J at [106]–[113], Gummow J at [213] and [214] and Hayne J at [336]–[343]. 151. (2012) 291 ALR 608. 152. Ibid at [42]–[49] per French CJ, Gummow, Hayne, Crennan and Bell JJ, at [173]–[175] per Kiefel J; cf Heydon J at [85]–[88] who dissented on this point, on the ground that the plaintiff had not proved that it was ‘vulnerable’. On vulnerability as a factor in determining liability, see

13.52ff. No duty was owed in respect of the two employees who were killed in the accident, on the application of the rule in Baker v Bolton (1808) 1 Camp 493 170 ER 1033, see 11.33. 153. [2003] VSC 27. 154. Ibid at [936]. Despite the conclusion as to this factor, the judge held that Esso was not liable to these consumers, because they were not vulnerable: see 13.53. 155. Ibid at [938]–[942]. Earlier examples of plaintiffs found to constitute an indeterminate group for these purposes are Johns Period Furniture Pty Ltd v Commonwealth Savings Bank of Australia (1980) 24 SASR 224 (FC) and Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524. 156. (1997) 72 FCR 1. 157. See also Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429 (see 13.54; vertically integrated companies in the fishing industry formed a small determinate class of potential plaintiffs: at [22] per McMurdo P, at [103] per Dutney J. 158. (1999) 198 CLR 180; 164 ALR 606, esp at [33] per Gaudron J, at [114]–[117] per McHugh J, at [345]–[346] per Hayne J. 159. Ibid at [10], [11] per Gleeson CJ, at [118] per McHugh J, at [216] per Gummow J. See also Western Districts Development Pty Ltd v Baulkham Hills Shire Council (2009) 75 NSWLR 706 (CA) (purchaser of building lot vulnerable to lack of care in the certification of a plan of subdivision). 160. 198 CLR 180; 164 ALR 606 at [11]. 161. Ibid at [122]. 162. See the comments to the like effect by La Forest J in Canadian National Rly Co v Norsk Pacific Steamship Co Ltd (1992) 91 DLR (4th) 289 at 351–2 and by Macfarlan JA in Rail Corp of NSW v Fluor Australia Pty Ltd [2009] NSWCA 344 at [130]–[133]. 163. 198 CLR 180; 164 ALR 606 at [123]. 164. As is arguably the case as between the guarantor of a company’s debts and the liquidator of that company: Mills v Sheahan (2007) 99 SASR 357 (FC) at [26] per Debelle J. 165. See the comments of McLachlin J in the Norsk case (1992) 91 DLR (4th) at 374, and of La Forest J at 351. 166. [2003] VSC 27; see 13.50. 167. Ibid at [1045]. 168. Ibid at [1070]. 169. Ibid at [1101]. 170. Ibid at [1113]. 171. [2008] 1 Qd R 429. 172. Ibid at [23] per McMurdo P. 173. See the similar comments made about the Caltex decision and the remarks of La Forest J in the Norsk Pacific case, referred to at fn 162 above. 174. Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 at 816–17; 2 All ER 145 at 154–5 per Lord Brandon; Homburg Houtimport BV v Agrosin Pte Ltd [2003] 1 Lloyd’s Rep 571 (HL).

Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd [1986] AC 1 at 25; [1985] 2 All ER 175. 935 at 945. 176. Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd (1997) 153 DLR (4th) 385. 177. Louisiana v M/V Testbank 752 F 2d 1019 (5th Cir, 1985), a decision of a special bench of all 15 members of the US Court of Appeals for the Fifth Circuit; cf People Express Airlines Inc v Consolidated Rail Corp 495 A 2d 107 (NJ 1985). 178. SCM (UK) Ltd v WJ Whittall & Son Ltd [1971] 1 QB 337; [1970] 3 All ER 245 (CA), approving British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 2 All ER 1252. 179. Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; [1972] 3 All ER 557 (CA); see also Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER 205. 180. Muirhead v Industrial Tank Specialities Ltd [1986] QB 507; [1985] 3 All ER 705 (CA). 181. Taupo Borough Council v Birnie [1978] 2 NZLR 397 (CA). 182. Louisiana v M/V Testbank 752 F 2d 1019 (5th Cir, 1985); cf Re Exxon Valdez 767 F Supp 1509 (D Alaska 1991) in which the court allowed the holders of commercial fishing licences to sue, as they had a sufficient proprietary interest. 183. Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] AC 643; 1 All ER 37 (HL). 184. (1875) LR 10 QB 453. 185. See Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 585–6; 11 ALR 227 at 269 per Mason J. 186. Simpson & Co v Thomson (1877) 3 App Cas 279 at 289–90 per Lord Penzance (HL); Remorquage a Helice (SA) v Bennetts [1911] 1 KB 243 at 248–9 per Hamilton J; Elliott Steam Tug Co Ltd v Shipping Controller [1922] 1 KB 127 at 139–40 per Scrutton LJ; Robins Dry Dock & Repair Co v Flint 275 US 303; 72 L Ed 290 (1927). 187. [1986] AC 1; [1985] 2 All ER 935. 188. [1986] AC 785; 2 All ER 145. 189. [2011] QB 86; [2010] 3 All ER 793. Leave to appeal to the United Kingdom Supreme Court was granted, but the parties settled before the appeal was heard. 190. The decision has been subjected to trenchant criticism in casenotes by Low (2010) 126 LQR 507, Turner [2010] CLJ 445 and Rushworth and Scott [2010] LMCLQ 536, but supported by Barker, fn 139, at 193–4. 191. [1986] AC 1 at 19; [1985] 2 All ER 935 at 941. 192. See the decision at first instance, sub nom Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ [1983] 2 NSWLR 564 at 573 per Yeldham J, applying the Caltex case. 193. The finding may, however, be regarded as an illustration of the difficulties which the doctrine of privity of contract and its many exceptions and limitations impose on unwary parties: see further Seddon and Ellinghaus, Cheshire and Fifoot’s Law of Contract, 10th Aust ed, 2012, 7.42. The effect of the decision has been abrogated in England by the Carriage of Goods by Sea Act 1992 (UK), which permits the buyer to sue the shipowner in contract: see Reynolds,‘Contract and Tort: The View from the Contract Side of the Fence’ (1993) 5 Canta LR 280 at 295–8. 194. (1976) 136 CLR 529 at 568–9; 11 ALR 227 at 255–6. 195. Both the Candlewood and Aliakmon cases illustrate this point.

See also the comments of Mason J in the Caltex case (1976) 136 CLR 529 at 591–2; 11 ALR 227 196. at 273–4. 197. Louisiana v M/V Testbank 752 F 2d 1019 (5th Cir, 1985). 198. Union Oil Co v Oppen 501 F 2d 558 (9th Cir, 1974); Re Exxon Valdez 767 F Supp 1509 (D Alaska 1991); cf Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524. 199. The Testbank case 752 F 2d 1019 (1985) at 1027, fn 10 per Higginbotham J, writing for the majority of the court; cf Williams J at 1034. 200. Minchillo v Ford Motor Co of Australia Ltd [1995] 2 VR 594 (App Div); Hamble Fisheries Ltd v L Gardner & Sons Ltd [1999] 2 Lloyd’s Rep 1 (Eng CA); Bryan v Maloney (1995) 182 CLR 609 at 630; 128 ALR 163 at 174; Rivtow Marine Ltd v Washington Iron Works (1973) 40 DLR (3d) 530 (SCC); cf Lambert v Lewis [1982] AC 225 at 227–8; [1981] 1 All ER 1185 at 1192 per Lord Diplock (HL). 201. (1973) 40 DLR (3d) 530. 202. Ibid at 549. The Supreme Court of Canada subsequently applied that reasoning to defectively constructed buildings: see the Winnipeg Condominium Corp No 36 v Bird Construction Co (1995) 121 DLR (4th) 193 (SCC). 203. D & F Estates Ltd v Church Commrs for England [1989] AC 177; [1988] 2 All ER 992 (HL); Murphy v Brentwood District Council [1991] 1 AC 398; [1990] 2 All ER 908 (HL); Department of Environment v Thomas Bates & Son Ltd [1991] 1 AC 499; 2 All ER 943 (HL). But see Bellefield Computer Services Ltd v E Turner & Sons [2000] BLR 97 (Eng CA) and note thereon by Wallace (2000) 116 LQR 530. 204. Aas v Superior Court 12 P 3d 1125 (2000); Winnipeg Condominium Corp No 36 v Bird Construction Co (1995) 121 DLR (4th) 193 (SCC). 205. Bryan v Maloney (1995) 182 CLR 609 at 627; 128 ALR 163 at 172 per Mason CJ, Deane and Gaudron JJ. 206. Invercargill City Council v Hamlin [1994] 3 NZLR 513 at 519 per Cooke P (CA) (affirmed by the Privy Council: [1996] AC 624; 1 All ER 756). 207. [1964] AC 465; [1963] 2 All ER 575 (HL); see 13.19. 208. [1977] 1 NZLR 394. 209. The principle does not extend to defects relating to such cosmetic matters as painting: Goulding v Kirby [2002] NSWCA 393. 210. Miell v Hatjopoulos (1987) 4 BCL 226 (SASC); Lowden v Lewis [1989] Tas R 254; Brumby v Peaton (1991) 10 BCL 291 (Tas SC). 211. (1995) 182 CLR 609; 128 ALR 163. 212. Cf Opat v National Mutual Life Assoc of A’asia Ltd [1992] 1 VR 283, in which the plaintiff’s statement of claim was struck out, as against the builder, as the plaintiff had failed to allege reliance on the builder. 213. Chase v de Groot [1994] 1 NZLR 613; cf Willis v Castelein [1993] 3 NZLR 103 at 120–2 per Williams J (owner–builder with no trade or professional qualifications not engendering the necessary reliance). 214. In Zumpano v Montagnese [1997] 2 VR 525 at 539, Brooking JA concluded that ‘Bryan v Maloney is confined to builders who build under contract’, but the other members of the Court of

Appeal decided the case solely on the basis of the defendant’s lack of vicarious liability, as to which see 26.33. 215. Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 (CA). 216. (2004) 216 CLR 515; 205 ALR 522. 217. See Makawe Pty Ltd v Randwick City Council (2009) 171 LGERA 165 at [63] per Campbell JA (NSWCA). 218. Codd, Hinchey and Nase, ‘An Alternative View of Woolcock Street Investments v CDG Pty Ltd’ (2004) 12 TLJ 194. And see the comment in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) [2012] NZSC 83 at [156] per McGrath and Chambers JJ that this test of vulnerability might ‘prove to be difficult to apply’. 219. Building Act 2004 (ACT) s 88(2); Home Building Act 1989 (NSW) ss 18B, 18D; Domestic Building Contracts Act 2000 (Qld) ss 49–51; Building Work Contractors Act 1995 (SA) s 32; Housing Indemnity Act 1992 (Tas) ss 7, 8; Domestic Building Contracts Act 1995 (Vic) ss 8, 9; Building Act 2004 (NZ) ss 397, 398. 220. Morton v Douglas Homes Ltd [1984] 2 NZLR 548; Lester v White [1992] 2 NZLR 483. Although Voli v Inglewood Shire Council (1963) 110 CLR 74 was concerned with the liability of an architect for physical injury arising out of a defect in design, it was regarded as relevant to the determination of the duty of care in Bryan v Maloney (1995) 182 CLR 609 at 624–5; 128 ALR 163 at 170. 221. Valleyfield Pty Ltd v Primac Ltd [2003] QCA 339. 222. National Mutual Life Assoc of A’asia Ltd v Coffey & Partners Pty Ltd [1991] 2 Qd R 401 (FC). 223. Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 at 407 per Richmond P (CA); Bryan v Maloney (1995) 182 CLR 609 at 624–5; 128 ALR 163 at 170 per Mason CJ, Deane and Gaudron JJ, at 640–1; 182 per Brennan J, at 663; 198 per Toohey J; Woollahra Municipal Council v Sved (1996) 40 NSWLR 101 (CA) at 141 per Clarke JA; White v Jones [1995] 2 AC 207 at 268; 1 All ER 691 at 711 per Lord Goff (HL); Hill v Van Erp (1997) 188 CLR 159 at 196; 142 ALR 687 at 714–15 per Gaudron J; see also Sir Robin Cooke, ‘An Impossible Distinction’ (1991) 107 LQR 46 at 65–7. 224. [1979] 2 NZLR 234. 225. [1994] 3 NZLR 513 (CA); [1996] AC 264; 1 All ER 756. 226. North Shore City Council v Body Corporate 188529 (Sunset Terraces) [2011] 2 NZLR 289. 227. Ibid at [9] per Elias CJ, at [51] per Blanchard, Tipping, McGrath and Anderson JJ. 228. Body Corporate No 207624 v North Shore City Council (Spencer on Byron) [2012] NZSC 83. 229. The earlier decisions of the NZ Court of Appeal denying the existence of a duty of care by the local authority in Te Matai Properties Ltd v Hastings District Council [2009] 1 NZLR 460 which related to a motel, and in Queenstown Lakes District Council v Charterhall Trustees Ltd [2009] 3 NZLR 786 concerning a luxury lodge, were consequently disapproved. 230. Pisano v Fairfield Municipal Council (1991) 73 LGRA 184 (NSW CA); Woollahra Municipal Council v Sved (1996) 40 NSWLR 101 (CA). In both cases, the certificate was issued under the Local Government Act 1919 (NSW) s 317A, but that section was repealed with effect from 1 January 1988. And see Port Stephens Shire Council v Booth (2005) 148 LGERA 351 (council liable for making a negligent misrepresentation under environmental protection legislation). 231. (2009) 171 LGERA 165 (NSWCA).

232. [2007] NSWCA 218. 233. Moorabool Shire Council v Taitapanui (2006) 14 VR 55. 234. Building Act 2004 (ACT) s 68; Building Act 1993 (NT) s 72; Development Act 1993 (SA) s 67(7); Building Act 1993 (Vic) s 46. 235. (1985) 157 CLR 424 at 511; 60 ALR 1 at 65. 236. Cf Gunston v Lawley (2008) 20 VR 33, in which Byrne J, in an obiter comment at [22], considered that for a subsequent owner to succeed against a defendant, the owner must show that such a defendant owed a duty of care to the original owner. 237. [1983] 1 AC 520; [1982] 3 All ER 201. 238. See, eg, Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758 at 784; 1 All ER 791 at 805 per Dillon LJ (CA); D & F Estates Ltd v Church Commrs for England [1989] AC 177 at 202; [1988] 2 All ER 992 at 1003 per Lord Bridge (HL) and the subsequent comment of Lord Bridge in Murphy v Brentwood District Council [1991] 1 AC 398 at 481; [1990] 2 All ER 908 at 930 suggesting that the decision in the Junior Books case could be supported as an application of the principles established in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575. 239. Nielsen (FW) (Canberra) Pty Ltd v PDC Constructions (ACT) Pty Ltd (1987) 71 ACTR 1 at 8 per Kelly J; CBD Investments Pty Ltd v Ace Ceramics Pty Ltd (1992) 10 BCL 437 (NSWSC); Christiani & Nielsen Pty Ltd v Goliath Portland Cement Ltd (1993) 2 Tas R 122 (FC); Jones (Robt) (363 Adelaide Street) Pty Ltd v First Abbott Corp Pty Ltd (1997) 14 BCL 282 at 306 per White J (Qld SC); cf Gunston v Lawley (2008) 20 VR 33, in which Byrne J commented at [27] that there is ‘no general principle of law that a sub-contractor cannot owe a duty of care to [an original owner] with which it has no direct contractual relationship’. 240. To the same effect is the comment of Lord Goff in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 195–6; [1994] 3 All ER 506 at 534 (HL) and that of the Supreme Court of Canada in Design Services Ltd v Canada (2008) 293 DLR (4th) 437 at [56]. 241. Gartside v Sheffield, Young & Ellis [1983] NZLR 37 (CA) (failure to have the will drawn and executed before the testator’s death). 242. White v Jones [1995] 2 AC 207; 1 All ER 691 (HL) (failure to have the will drawn in time), approving Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580 (failure to ensure proper execution of will). And see Markesinis, ‘Five Days in the House of Lords: Some Comparative Reflections on White v Jones’ (1995) 3 TLJ 169. 243. Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687; see also Watts v Public Trustee [1980] WAR 97 (in both cases the negligence lay in a failure to ensure that the will was properly executed). 244. Earl v Wilhelm (2000) 183 DLR (4th) 45 at [41], [42] (Sask CA); leave to appeal was refused by the Supreme Court of Canada: 191 DLR (4th) vi. 245. Although in almost all cases the defendant has been a solicitor, the duty under discussion is imposed on any person who claims to have similar expertise: Esterhuizen v Allied Dunbar Assurance plc [1998] 2 FLR 668 (Eng QB). 246. White v Jones [1995] 2 AC 207 at 259–60; 1 All ER 691 at 702 per Lord Goff; Hill v Van Erp (1997) 188 CLR 159 at 195–6; 142 ALR 687 at 714 per Gaudron J. 247. Carr-Glynn v Frearons [1999] Ch 326; [1998] 4 All ER 225 (CA). 248. Clarke v Bruce Lance & Co [1988] 1 All ER 364 (CA); see also Knox v Till [1999] 2 NZLR 753

(CA) (solicitor under no duty to refuse to prepare a will on the grounds of the testator’s lack of testamentary capacity). 249. White v Jones [1995] 2 AC 207 at 268; 1 All ER 691 at 710 per Lord Goff. 250. Cf Hemmens v Wilson Browne [1995] Ch 223; [1993] 4 All ER 826. 251. Queensland Art Gallery Board of Trustees v Henderson Trout [2000] QCA 93 (testator had not, at the time of her death, finally determined to benefit the appellant, hence respondents’ delay in preparing a will did not expose them to liability); see also White v Jones [1995] 2 AC 207 at 268; 1 All ER 691 at 711 per Lord Goff.

PART IV Invasion of Personal and Property Interests by Conduct Not Necessarily Intentional or Negligent Chapter 14

Nuisance

Chapter 15

Animals

Chapter 16

Violation of Interests Protected by Statute

[page 463]

CHAPTER 14 Nuisance

Nuisance as a Separate Tort1 Meanings of the word ‘nuisance’ 14.1 The essence of the tort of nuisance is interference with the enjoyment of land. The earliest remedy, the assize of nuisance, was restricted to freeholders, and its successor (which eventually became the only common law action), the action upon the case for nuisance, though not confined to freeholders, still required of the plaintiff an interest in land. It is from this action that the present law of private nuisance is derived. The generic conception of nuisance can readily be illustrated. It covers interferences with use and enjoyment of land by water, fire, smoke, smell, fumes, gas, noise, heat, electricity or any other similar thing which may cause such an inconvenience. Nevertheless, the term ‘nuisance’ is used in different senses by judges, and this has caused confusion both in the development and in the exposition of this branch of the law of torts. First, it is used by way of factual description of conduct or conditions on land that result in annoyance: a heap of rubbish left by A on his or her land is styled a ‘nuisance’. Secondly, ‘nuisance’ is used to denote the damage resulting from the activity or condition last mentioned; the householder, who cannot sleep because of a neighbour’s loud radio, calls this a ‘nuisance’. Thirdly, and this, unlike the previous two meanings, connotes legal liability, the courts may declare that the defendant is committing a nuisance: thus, the defendant who has destroyed a neighbour’s trees by causing poisonous fumes to be emitted from

his or her land may be held liable in nuisance. How important it is to understand these different meanings will be realised when it is noted that the courts will, for example, sometimes consider whether a particular ‘nuisance’ gives rise to a liability in tort.2 [page 464]

Nuisance and negligence 14.2 It has been said on a number of occasions that liability in nuisance ‘involves fault of some kind or another’.3 One area in particular where liability in nuisance has been acknowledged as largely overlapping with that of negligence is that in which the occupier of land has failed to take what are reasonable steps, in the light of his or her financial or other resources, to remedy a nuisance of which the occupier knew or ought to have known, however that state of affairs might have been brought about: see 14.40. But the statement that nuisance ‘involves fault’ needs to be qualified, depending on the type of nuisance under consideration. Thus, while substantial interference with the enjoyment of land requires proof of culpable conduct on the part of the defendant,4 if the nuisance complained of is removal of the plaintiff’s right to the support of his or her land by the neighbouring land of the defendant, liability at common law is strict, and proof of fault on the part of the defendant is unnecessary: see 14.18. Equally, if the nuisance complained of consists of substantial physical injury to land, it appears that the plaintiff need prove only the fact of that injury, while the onus is cast on the defendant to show the reasonableness of any precautions that had been taken: see 14.10. And, finally, if the nuisance is caused by the encroachment of the roots or branches of trees, an occupier is liable at common law, whether or not he or she was responsible for planting those trees: see 14.41.

Private and public nuisance 14.3

The confusion resulting from the overlapping of nuisance and negligence is aggravated by the existence of another type of nuisance known to the law, namely, public nuisance. Public nuisance is a crime, covering a

miscellany of interferences with rights of the public at large, such as obstructing public highways or waterways, or selling impure food: the list is huge. The commission of a public nuisance is not actionable by an individual unless there is proof that he or she has suffered particular damage beyond that suffered by the rest of the community: see 14.54. This tort is not, however, the same tort as that of private nuisance; one obvious distinction is that in private nuisance the plaintiff must prove interference with enjoyment of land, whereas claims based on public nuisance are not necessarily linked with user of land. The tendency to mistake them for one and the same is accentuated because the rules governing who shall be liable are the same in both torts: see 14.58. Yet in other respects the rules of the tort of private nuisance and of that arising from public nuisance are not the same: see 14.58. A further cause of possible confusion is that the High Court of Australia has held that the action in public nuisance for personal injury suffered on the highway has now been absorbed by the principles of ordinary negligence (see 14.55), and the rules as to remoteness of damage are the same in both torts: see 14.57. This close similarity of public nuisance and negligence may lead to false conclusions about the relationship of private nuisance and negligence. [page 465]

Nuisance and trespass 14.4 Nuisance and trespass do not overlap.5 The influence of the old forms of action persists here, so that if injury to land is indirectly caused by the defendant, it cannot be trespass. As will have been realised when trespass to land was being considered, this somewhat blurs a classification of torts based on the interest affected. For it means that if A fires at B’s wall, this is trespass, whereas if exactly the same damage is caused by something falling from A’s land onto B’s wall this cannot be trespass, but may be nuisance.

Conclusion 14.5 One further observation must be made before the case law of nuisance is examined. The remedy for nuisance which is normally sought by a plaintiff

is an injunction, not damages. The grant of an injunction is discretionary and, although the tort of nuisance is made out, may be refused if, for instance, the harm is not thought to be sufficiently substantial. Cases refusing an injunction must not, therefore, be taken as necessarily deciding that nuisance has not been committed. A person, then, may be said to have committed the tort of private nuisance when he or she is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.

Is Damage Necessary? 14.6 One issue has been deliberately omitted from the above definition and will be dealt with first: whether damage must be proved in order to succeed in nuisance. Nuisance is not actionable per se and actual damage must be proved, subject to the following exceptions: (i)

Where the interference is with an easement, profit a prendre or right of access. It had been suggested in England that this exception might be justified on the ground that, if the plaintiff could not sue unless some damage could be proved, he or she might in due course be denied the right to commence an action by the operation of the rules relating to prescription.6 However, that justification has subsequently been rejected, both in England7 and Australia.8 The reason for this exception has been put on the basis that the plaintiff has an absolute legal right to the enjoyment of the easement, profit or right of access, and that any infringement of that right implies damage. It has been explained that disturbance of such rights was analogous to trespass and, although for [page 466] technical reasons trespass was impossible under the old forms of pleading in such cases, the fact that these disturbances were in the nature of interferences with rights absolutely protected was recognised

to the extent of importing the rule of trespass that no proof of specific damage was required.9 If the plaintiff does not show that the right would have been used, had it not been interfered with, no more than nominal damages can be recovered.10 (ii)

An injunction may be granted in a quia timet action where, although harm is reasonably feared to be imminent, no actual harm has yet occurred.11 It has been held12 that the statutory power13 to give damages in substitution for an injunction applied to quia timet actions, even though damages could not have been awarded at common law, but this rule does not apply in New South Wales or Tasmania.14

The Nature of the Invasion of the Interest in Land 14.7 The act on which a claim in nuisance is based may be one indirectly causing a physical injury to land, or a substantial interference with its enjoyment, or an interference with rights over land.

Physical injury to land 14.8 If, for example, the defendant sets up vibrations which cause the building of the plaintiff to collapse, or if the fumes emitted from the defendant’s factory destroy vegetation of the plaintiff, this might be an actionable private nuisance. There is sufficient invasion of the interest of the plaintiff on proof that his or her property has suffered a sensible material injury which is not merely trifling in its nature and which results in a diminution of the value of the property. This is the effect of the decision of the House of Lords in St Helen’s Smelting Co v Tipping.15 This case further decides that where such injury is proved, it is not relevant to inquire whether the locality in which the defendant carried on the activity was a suitable one. So, when the plaintiff there established that his shrubs had been damaged by fumes from the copper smelting plant of the defendants and that there had been very considerable [page 467]

diminution in the value of his property, the House of Lords held that the requirement of interference with the land of the plaintiff was satisfied, irrespective of whether the defendants carried on their business in a fit industrial locality.16 Because, as is discussed in 14.15, locality is a factor to be taken into account in deciding whether acts which cannot be brought under the present head are sufficient interferences with land, it is important to define ‘sensible material injury to property’. This problem may be considered in two parts, the first of which is the meaning of ‘material injury’. It has been suggested that it is enough if science can trace a deleterious physical change in the property;17 the better view, however, is that ‘sensible’ means damage visible by ordinary persons conversant with the subject matter without having recourse to scientific evidence.18

14.9 The second and more difficult problem is the meaning of ‘property’. In St Helen’s Smelting Co v Tipping19 Lord Westbury LC distinguished ‘material injury to property’ on the one hand, and those interferences ‘producing sensible personal discomfort’ on the other. Depreciation in the value of land and buildings is not in itself ‘material injury to property’20 but damage to goods within the premises is sufficient.21 Uncertainties remain about the scope of the proposition that the fitness of the place where the defendant operates is immaterial in deciding whether there has been interference amounting to sensible material injury. Although judges in both Canada22 and New Zealand23 continue to state the distinction drawn by Lord Westbury, the impression is that, in practice, the courts often do consider the suitability of the locality, where a strict application of the rule under discussion would seem to preclude it. Especially is this the case when the nuisance consists of dust or soot emanating from the defendant’s property.24

14.10 There is another basis on which, it appears, liability for the type of nuisance presently under discussion differs from that constituted by a substantial interference with enjoyment. It has been held25 that in the former, as distinct from the latter, it would not avail the defendant to plead that all reasonable precautions had been taken to prevent the injury being suffered, but the true rule may be that stated in

[page 468] Kraemers v A-G (Tas)26 that the plaintiff’s cause of action is complete on proof of the substantial injury to property, and that it is for the defendant to show the reasonableness of any precautions that had been taken.27

Substantial interference with enjoyment 14.11 Where interference with enjoyment of land is relied on, a substantial interference must be shown. Perhaps the most cited formulation of the rule is this:28 [O]ught this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?

Although a trivial interference, then, is not a nuisance, it has been said that the loss of even one night’s sleep through excessive noise is not trivial in this sense.29 Nor need injury to health be proved.30 The defendant’s activities need not impinge on the senses as smoke, fumes, smells and odours do; it is a nuisance to use adjoining premises for prostitution31 or as a sex shop32 or to install floodlights in domestic premises, whether for the purpose of illuminating one’s own tennis court,33 or a neighbour’s back garden.34 It is also a nuisance to erect a glass verandah which reflects sunlight into neighbouring buildings.35 The tort may also be committed if equipment on the defendant’s land interferes with the reception of television signals by the plaintiff.36

Plaintiff putting land to a sensitive use 14.12 If the activity only damages the plaintiff because he or she is carrying on some extremely delicate trade on the land which demands exceptional freedom from interference, this will not be an actionable nuisance.37 In Bridlington Relay Ltd [page 469]

v Yorkshire Electricity Board38 the defendants’ power line interfered with the plaintiffs’ business of providing a television relay service to subscribers. One reason given by Buckley J39 for denying the plaintiffs’ claim in nuisance was that their antennae required more protection from interference, because of the high quality picture which they proposed to distribute, than that of a domestic aerial installed on a householder’s roof.40 It is important to distinguish this requirement of substantial interference from that harm actually suffered in respect of which damages are recoverable. So, the Privy Council decided that once the nuisance is established, that is, once the substantial interference is proved, the remedies for that interference will extend to a sensitive and delicate operation such as the growing of orchids. The damage to the orchids was a non-remote consequence of what had already been proved to be a nuisance, and at that stage the orchids’ hypersensitiveness became irrelevant.41

Interferences which are not protected 14.13 A further aspect of the formulation of the rule of liability quoted above is that there are some interferences which, at least in the present state of the law, are regarded as outside the scope of protection. For example, no liability in nuisance at common law42 is incurred by one who, even deliberately, blocks a neighbour’s view,43 so long as the defendant’s acts are otherwise lawful.44 And, by analogy with this principle, a person cannot complain of the interference with the reception of television signals caused merely by the erection of a building on the defendant’s land.45 Another example of an interference which has been held to be outside the range of legal protection is provided by the decision of the High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor.46 Despite the fact that the plaintiffs had lost profits in running their racecourse because the defendant, from a structure just outside it, broadcast contemporaneous reports of the races, the plaintiffs were unable to recover damages in an action in nuisance. The interference of the defendant had effect only on the plaintiffs’ business activities, and not on their use and enjoyment of the land.47 [page 470]

Duration of the interference 14.14

An interference may be substantial, though only temporary in duration. Reference has already been made to the judicial comment that the loss of even one night’s sleep may be a substantial interference with one’s enjoyment of property,48 and in Wherry v KB Hutcherson Pty Ltd49 temporary noise and vibrations caused by the defendant’s excavating a building site next to the plaintiff’s office were held to be a nuisance.

Locality 14.15 In this group of nuisances, unlike those where sensible injury to land is complained of, one must generally consider the locality where the act is performed in order to determine whether the interference is substantial.50 In Pittar v Alvarez51 an action for nuisance caused by smoke and soot from neighbouring domestic fireplaces was dismissed by Harvey J because (inter alia) he found that the plaintiff had suffered no more inconvenience than was to be expected in so densely populated a district as the Sydney suburb of Darlinghurst. But it has been observed52 that the courts must have regard to changes wrought in a locality. Although, in Dunstan v King,53 a sawmill established in the foothills of the Dandenongs, on the outskirts of Melbourne, was held to constitute a nuisance, it was pointed out that, at that time, there were few industrial undertakings in the area. It may be surmised that the same decision would not necessarily be reached 60 years later if (assuming compliance with planning legislation) the character of the neighbourhood had become industrial rather than rural.54 The one exception to the need to consider the locality is when the nuisance is constituted by overhanging boughs of trees. Even though the surrounding area may be a suburb in which every effort has been made in beautification by planting trees, that will not be a ground for arguing that overhanging branches cannot constitute a nuisance.55

‘State of affairs’ 14.16 At this stage we must consider a problem which is important in an understanding of the tort of nuisance. In Castle v St Augustine’s Links Ltd56

the [page 471] plaintiff, while using the highway, was blinded by a golf ball driven from a tee on the adjoining course. He was held able to recover from the owners of the golf club for damages arising from public nuisance. Suppose that the ball had been hit onto adjoining land and had harmed an interest of the occupier. The issues would have been the same except that the tort of private nuisance would have been committed. Is the ‘substantial interference’ required in nuisance the actual injury sustained by the plaintiff, that is, does he or she recover if knocked unconscious but not if merely bruised? Further, we shall see in 14.30 that, if any material injury to property is caused, then it is arguable that the defendant is liable regardless of whether the user is reasonable. If, then, the nuisance is the actual injury suffered, it would follow that all householders whose windows were broken by golf balls hit from a golf course could sue the golf club in nuisance: surely there would then be a greater measure of liability in the absence of fault than this tort normally imposes.

14.17 An alternative view is that the test of whether there is ‘substantial interference’ is not whether harm did occur but whether the defendant was responsible for a condition of affairs on the land which threatened damage. Then the golf club would be responsible in nuisance only if it had so constructed the course that it was foreseeably likely that harm would be caused to occupiers of neighbouring land. If damage did in fact ensue, then an action of nuisance would lie, but the amount of damage would affect only the compensation recovered, not the existence of the cause of action. It appears that the trend of authority favours the latter view. Bolton v Stone57 was a case where one issue was the liability in the tort derived from public nuisance of the defendant cricket club to a pedestrian hit by a cricket ball struck by a visiting batsman from the club’s ground. So far as nuisance was concerned, the courts regarded as relevant the question whether the pitch and ground were so sited as to endanger those using the highway. Jenkins LJ said:58 ‘The gist of such a nuisance … is the causing or permitting of a state of affairs from which damage is likely to result’. Similarly, in Spicer v

Smee59 defective electrical wiring was installed in the defendant’s premises. This caused a fire resulting in the destruction of the plaintiff’s adjoining bungalow. Finding for the plaintiff in nuisance, Atkinson J said:60 ‘… private nuisance arises out of a state of things on one man’s property whereby his neighbour’s property is exposed to danger’. In short, what mattered was the defective wiring rather than the fire. Further, in Sedleigh-Denfield v O’Callaghan,61 where the defendants allowed a culvert on their land to remain blocked, and the adjoining land of the plaintiff was consequently flooded, Lord Atkin said that the defendants ‘created a state of things … from which … flooding … might reasonably [page 472] be expected to result’: it was therefore a nuisance.62 Although he did not refer specifically to these views, Windeyer J, in Hargrave v Goldman,63 summed them up by saying: In nuisance, liability is founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land.

These cases, then, establish that the requirement of ‘substantial interference’ is complied with if a state of affairs exists whereby the user of adjoining premises is rendered hazardous by a threat of damage which is foreseeably64 likely to result from that dangerous state of affairs. Nevertheless, there must be resulting damage in order to satisfy the requirement of the tort that some damage must be caused — not only does the extent of that damage determine the size of the award of damages, but also it may assist in determining whether the state of affairs was a potential nuisance. The damage itself need not be substantial if the court is otherwise satisfied that the state of affairs was such as to expose the premises to risk of substantial harm.

Interference with property rights 14.18 It may also be a nuisance for the defendant to infringe a property right which the plaintiff has in respect of his or her land. The right with

which most of the reported cases on nuisance are concerned is that of the support of the plaintiff’s land by the land of the defendant. Any removal of that support65 which causes the plaintiff’s land to subside is, at common law, a nuisance,66 although in New South Wales statute now provides that the removal of lateral support may give rise to an action in negligence but not in nuisance.67 However, the common law right is limited to the support of the land in its natural state and, so far as the law of nuisance is concerned, does not extend to land on which buildings are or will be erected.68 But if liability in nuisance is established, the damages recoverable may [page 473] include the consequential damage to any buildings.69 The principal other property right, interference with which may create liability in nuisance, is that to light and air through a defined channel. Many of the incidents of these rights are matters more of the law of real property than of the law of torts.70

Unreasonableness 14.19 A plaintiff does not win an action based on nuisance by showing merely that another is responsible for substantial interference with his or her land that results in damage. Nuisance cases often deal with a conflict of interests between neighbouring landowners, and so the law of nuisance has to adjust the respective rights and privileges of these neighbours. The position has been expressed in the House of Lords to be as follows:71 A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society.

And, in considering whether the noise from motor boat racing on a man-made lake was actionable as a nuisance, Lawton LJ, speaking for the English Court of Appeal, said:72 Now nearly all of us … have to put up with a certain amount of annoyance from our neighbours … The question [on which liability depends] is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way

and there must be a measure of give and take, live and let live.73

14.20

It is convenient to refer, in this context, to the notion of ‘unreasonableness’, but it must be understood that this is not the same as asking whether, from the defendant’s point of view, his or her conduct was reasonable: the defendant may be operating a chemical factory with proper care, and yet, taking into account the interests of those living in the vicinity, the activity may be unreasonable.74 When it is said75 that it is not a defence for one to claim ‘that he is merely making a reasonable use of his own property’, all that is intended to be conveyed by this proposition is that the reasonableness (or otherwise) of the defendant’s conduct is one factor to be taken into account in determining liability. [page 474] In principle, one should consider whether what has been done is reasonable, not merely from the defendant’s viewpoint, but from the plaintiff’s also. The courts have not been ready to define with precision the principles according to which this rule is to be applied; thus, to some extent, what follows is a rationalisation from the mass of decided cases. The basic issue is always the same: the weighing of the nature and circumstances of the defendant’s activity against the nature and extent of the resulting interference with the plaintiff. The test, then, is objective — the view which the disinterested member of the public would take on this conflict. The relevant factors are considered in detail below.

The conduct of the defendant The purpose of the activity 14.21

The law, in judging what constitutes a nuisance, takes into consideration the main object of the defendant’s activity.76 And that main object may, for the purposes of exposition, be subdivided into: first, the social utility of the defendant’s undertaking; and, secondly, the effect of his or her malice.

14.22 Social utility It might be thought, on first impression, that the principle of ‘give and take, live and let live’ would lead to the conclusion that if the defendant were carrying on a trade that was essential for the benefit of a community, and located in the best place available, those activities ought not to be branded as ‘unreasonable’ and a nuisance, the effect of such a finding being that the defendant would be liable in damages or be subject to an injunction requiring a change in the method of operation or its complete cesser. But it must be borne in mind that the plaintiff to the action is suing to protect a private right to enjoy his or her own property. If the defendant’s activities, despite their high degree of social utility to the public at large, cause undue disturbance to the plaintiff, the latter ought not to be obliged to bear the whole of the social cost. That cost should be spread among the public who reap the benefit, by way of the defendant’s liability in damages (or the cost of compliance with an injunction) being passed on to that public in the form of higher charges for the defendant’s services.77 Thus, in Munro v Southern Dairies Ltd,78 in which the plaintiff complained of the noise, smell and flies resulting from the stabling of horses on the defendant’s property, Sholl J said79 that ‘the mere fact that a business may be carried on as to be useful to the public, or even important from the point of view of public benefit, is insufficient to justify what otherwise would be a nuisance’. His Honour also expressed considerable doubts80 as to the relevance of evidence led by the defendant to show the economic necessity of its use of horses in its business.81 If, then, even a most worthwhile enterprise of economic advantage to the community, is capable of giving rise to an action in nuisance, it is not surprising [page 475] that, if the defendant’s activities are directed primarily to recreational pursuits, a finding of nuisance may the more readily be arrived at. As Anderson J remarked in Lester-Travers v City of Frankston,82 in relation to the inconvenience caused to the plaintiff by golf balls being hit from the defendant’s links, ‘it would be contrary to one’s sense of justice, as well as inconsistent with the law, that the plaintiff’s rights should be subordinated to

the leisurely pursuits of sportsmen’.

14.23 Malice In the light of the foregoing, it may be readily understood that one whose actions are motivated by malice, if those actions infringe the plaintiff’s right to the enjoyment of property, will invariably be held to have committed a nuisance. The clearest example of the effect of malice, in determining whether the defendant’s actions were ‘reasonable’, is Hollywood Silver Fox Farm Ltd v Emmett.83 The defendant, who had fallen out with his neighbour, the owner of a silver fox farm, let off guns on his own property, with the object of disturbing the plaintiff’s foxes during the whelping season. Despite the fact that the plaintiff might, in other circumstances, have been found to have put its land to a particularly sensitive use,84 in that the foxes needed to be kept undisturbed to an exceptional degree, the defendant’s spiteful motive was the clinching factor in the court’s conclusion that his actions constituted a nuisance.85 It is important to bear in mind that, in the Hollywood Silver Fox case, the defendant’s activities interfered with the plaintiff’s right to the reasonable enjoyment of its property. If the defendant, although activated by ill-will, does nothing to infringe the plaintiff’s rights, the former cannot be found liable in nuisance. A case which bears a passing resemblance to the Hollywood Silver Fox decision is Fraser v Booth,86 in which the plaintiff let off firecrackers on her property, in order to divert a flock of pigeons which flew regularly from the defendant’s property over her own. There was no allegation that the noise of the crackers disturbed the defendant in the use and enjoyment of his land, hence the plaintiff was not liable, on the defendant’s counter-claim, in nuisance. All that the plaintiff had done, in effect, was to abate what the judge found to be the nuisance caused by the over-flight of the pigeons.87

14.24 Clearer still as authority in support of the proposition that malice alone will not render a person liable in nuisance, unless the activities infringe a right of the plaintiff, is Bradford Corporation v Pickles.88 The defendant abstracted water percolating through undefined channels beneath his land, which would otherwise have reached the plaintiff’s adjoining reservoir. To abstract the percolating water was in itself lawful, in that the plaintiff had no rights to the continued flow thereof. The fact that the defendant might have

acted with bad motive towards the plaintiff (in that he wanted to make the plaintiff pay an inflated price for the land, which [page 476] it required in connection with its reservoir) did not, therefore, make his act an actionable nuisance.89 Reference has already been made to Victoria Park Racing and Recreation Grounds Co Ltd v Taylor90 in which, similarly, the defendant’s actions infringed no rights of the plaintiff, which was consequently left without a remedy.91 In view of these authorities, there is little doubt but that, at least in Australia,92 a ‘spite fence’ erected solely for the purpose of interfering with a neighbour’s outlook would not constitute a nuisance because, as has already been observed in 14.13, at common law no one has a right to an uninterrupted view.

Suitability of locality 14.25 If the disturbance complained of consists of the emission (whether by noise, smell, dust or otherwise) of some form of trade or business, the courts of a past age included reference to the suitability of the locality as one of the criteria of reasonableness. For example, in Ball v Ray,93 decided in 1873, Mellish LJ commented that the stabling of horses in a residential area was more likely to constitute a nuisance than if the same activity had been carried on in a different location. Remarks to a similar effect are to be found in judgments in Australia up to the middle of the twentieth century.94 However, the advent of comprehensive planning legislation has rendered this factor of diminished importance. If a person sets up a trade or business in an area which has been zoned for that type of use, the fact of compliance with the planning legislation must weigh heavily in favour of a finding that the use is reasonable as to locality,95 although compliance with zoning requirements cannot be conclusive, because a defendant might carry out permitted activities in an unreasonable way.96 And, conversely, such planning legislation will normally prevent a person from setting up an undertaking in an unsuitable location.

Ordinary use of the land 14.26 The fact that the defendant’s activity, or the purpose for which the land is being used, is ‘natural’ or ‘ordinary’ is a relevant matter in determining whether [page 477] those actions are to be regarded as reasonable. The origin of this reference to the defendant’s ordinary use of the land as a factor in assessing liability is the dictum of Bramwell B in Bamford v Turnley97 that: Those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action [in nuisance].

The reason given by the judge for taking this factor into account was that any activity which is a part of everyday life is as likely to be undertaken by one landowner as by another, and hence neither ought to be able to complain at the annoyance caused thereby. So long as the defendant’s actions are to be seen as no more than an ordinary user of land, it is an aspect of the general principle of ‘give and take’ to allow those actions not to be a ground of liability. Those sentiments were echoed by the English Court of Appeal, in Andreae v Selfridge & Co Ltd,98 when it held that the interference caused to a neighbouring hotel by building operations carried out by the defendant was actionable only to the extent to which the interference exceeded that which was the inevitable result of such operations.99 The decision in the last-mentioned case also makes it clear that a person does not have an absolute right to use property for an ordinary or common purpose. One may be free of liability only if, in the words of Bramwell B in Bamford v Turnley quoted above, one does so ‘conveniently’, that is, not to an excessive degree. In Bayliss v Lea,100 the defendant had installed irrigation works on his farm which, of themselves, were an ordinary and common use for the area concerned. However, he had failed to provide drainage that was adequate in times of heavy rain, so that the flow of surplus water from his property caused damage to the plaintiff’s property. The installation and use of the irrigation works were therefore found to be unreasonable and excessive, and hence to constitute a nuisance.101

Things naturally on the defendant’s land 14.27 A defendant may be liable in nuisance for the escape of things which are naturally on the land. Where, as a result of the operation of natural agencies, earth slides from the defendant’s conical hill so as to threaten the plaintiff’s property below, the defendant may be liable in nuisance.102 Although the High Court, in Sparke v Osborne,103 held the defendant not to be liable in nuisance for the spread of the noxious weed prickly pear from his property to that of his neighbour, that decision has been explained, by Windeyer J in Hargrave v Goldman,104 as resting primarily on [page 478] the fact that it would have been an intolerable burden on the defendant for him to check the spread of the weed. As the Privy Council observed on appeal in Goldman v Hargrave,105 if a situation similar to Sparke v Osborne were to arise nowadays, ‘it is probable that [it] would not be decided without a balanced consideration of what could be expected of the particular occupier as compared with the consequences of inaction’.

Impracticability of preventing or avoiding the interference 14.28 It is clear from the preceding paragraph that, when the nuisance complained of arises from things naturally on the defendant’s land, liability will depend very largely on the resources available to prevent the interference. A fortiori, if the plaintiff complains of the activities carried out by the defendant, it will always be material whether the latter could still have achieved the same purpose but, by taking reasonably practical steps, have prevented an undue interference with the use by the plaintiff of his or her land. If, without excessive expenditure, the factory owner could have installed equipment which would have avoided substantial interference with the plaintiff’s use, the courts may well treat this as almost conclusive that the defendant’s activity was unreasonable.106 Conversely, where the interference is temporary only, such as that caused by building operations, the exercise of proper care in the selection of the methods used to carry out such works will generally exonerate the defendant from liability.107

The seriousness of the interference with the plaintiff’s user of land The extent of the harm 14.29 The duration of the interference has, as would be expected, often been held to be important in deciding whether there is an actionable nuisance.108 But an interference for a short time may still be an actionable nuisance if, on the whole, it is unreasonable.109 Besides the duration of the harm, one must also consider the degree of harm. Thus, in cases like Midwood & Co Ltd v Manchester Corporation,110 where the defendant had been responsible for a state of affairs resulting in an explosion which set fire to the plaintiff’s premises, there is a cause of action, as was also the case in Bayliss v Lea,111 where damage to the plaintiff’s land occurred only in times of heavy rain. In short, there may be a major interference although it lasts only for a short period of time. [page 479]

The character of the harm 14.30 The harm suffered by the plaintiff will generally take the form of either physical injury to land or an interference with personal enjoyment of it. There is some authority to support the view that in the case of the former type of harm it is irrelevant that the defendant has undertaken all reasonable precautions to prevent or minimise it, so that it was held to be nothing to the point that the defendant, while demolishing and rebuilding its premises, had omitted no reasonable safeguard against the incursion into the plaintiff’s shop of dust which damaged his goods.112 But in other cases no such distinction is drawn between the types of harm suffered. In Stearn v Prentice Brothers Ltd113 the plaintiffs’ crops were eaten by rats attracted to the premises of the defendants because they collected bone manure there. Although this was sensible physical injury to land of the plaintiff, the action of nuisance failed because what the defendants did was held in the circumstances to be neither unusual nor excessive. The key to reconciling these views may be found in

Lord Selborne’s judgment in Gaunt v Fynney:114 physical damage is a more tangible and readily proved loss than personal annoyance. The courts have, in other areas of the law of torts, been chary of protecting personal discomforts falling short of physical injury,115 and this attitude is reflected in their attaching greater weight to appreciable physical injury than to personal discomfort.

The suitability to the locality of the use interfered with 14.31 In deciding whether action lies because of industrial interference, the courts have often taken account of the fact that interference took place in a residential area.116 In Sturges v Bridgman,117 it was held material to the success (in nuisance) of a physician, who complained that his professional work was interfered with by a confectioner, that the locality was one where many medical men practised.

Could the plaintiff easily have avoided the consequence of the harm? 14.32 Usually, when the facts are that the plaintiff could readily have avoided the consequences of the defendant’s act, the relevant issue will be classed under some other head, for example, that the cause of the interference was the plaintiff’s own default: see 14.45. It may be, however, that the ease with which the plaintiff might have avoided the consequences of the defendant’s act is relevant in deciding whether the action succeeds, although the plaintiff will not be expected, for example, to alter his or her way of living in order to accommodate the defendant.118 [page 480]

Who Can Sue? Nature of the interest necessary

14.33 A plaintiff can sue in nuisance only if he or she has an interest in the land affected.119 The nature of the interest that is sufficient is based on ownership of the land or the right to its exclusive possession. There is no doubt but that the owner of the freehold, a lawful tenant or licensee may sue for nuisance affecting those rights.120 It has also been held, for instance, that the holder of a grazing licence has the right to sue, even though he had no legal estate, interest or right to possession;121 the same right is available to one who has permission from the Crown to occupy farm land, at least so long as he has not been disturbed in his occupation;122 and to a company which, although neither the owner nor lessee of land is in actual and exclusive occupation.123 Further, a former tenant, remaining unlawfully in possession of the premises, has been held entitled to sue the landlord in nuisance.124 And a travelling circus, camped for a month on land apparently owned by the local authority, was able to obtain an interlocutory injunction against conduct constituting a nuisance by besetting.125 However, those who merely reside with the freeholder or tenant, even though as a member of his or her family, have no standing to sue in nuisance, despite the fact that the injury complained of is a loss of amenity, which is suffered by all members of that family.126 And an unconditional purchaser of land, prior to the settlement of the transaction, is also unable to sue in nuisance because of the lack of either possession, or the right thereto.127 A landlord can sue on proof that the reversionary interest in the land has been interfered with. This means that a plaintiff will succeed by proving harm of a permanent character, for example, the erection of a fence which blocks road access.128 Mere temporary interference is not enough, even if the reversioner shows that it is likely that similar future interference will take place.129 [page 481]

Type of damages recoverable 14.34 Given that the plaintiff has standing to sue by reason of having a relevant interest in the land affected, a further issue which has not yet been conclusively settled is whether a plaintiff can recover for damage to chattels

and for personal injuries. It has already been mentioned that nuisance primarily protects a plaintiff’s interest in real property: see 14.5. But it is strongly arguable that, once the plaintiff has shown that there has been an actionable interference with the enjoyment of that property, he or she is entitled to recover for injuries to chattels and to the person. With regard to damage to chattels, there are decisions in Australia and England in which such an award has been made in an action in nuisance, although the point was not argued.130 The issue was fully discussed by O’Regan J in the High Court of New Zealand in Howard Electric Ltd v A J Mooney Ltd.131 His Honour accepted that damage to chattels was a recoverable head of loss. After a full review both of the cases and the text writers, he concluded132 that ‘once damage to the plaintiff’s [land] is established’, thus justifying his right to sue in private nuisance, ‘he is entitled to damages for whatever loss results to him as a natural and foreseeable consequence of the wrongful act of the defendant’. There is less doubt, at least in Australia, as to the plaintiff’s ability to recover damages for personal injury which flows from the invasion of the proprietary interest in land. In Pelmothe v Phillips,133 the interference to the plaintiff’s land was caused by blasting operations carried out on the defendant’s property. The Full Court in New South Wales held that the injury suffered, in the nature of nervous shock affecting the plaintiff’s health, being a reasonable and natural consequence of the activities of the defendant, was compensable in an action in nuisance.134

Who Can Be Sued? 14.35 A person is liable in nuisance if he or she bears ‘some degree of personal responsibility’.135 That responsibility may arise either from the defendant having played a part in the creation of the nuisance, or from a failure to remedy a state of affairs brought about by others. These two aspects are considered separately, the discussion concluding with the respective responsibility of landlord and tenant for a nuisance arising from a want of repair of the demised premises. [page 482]

Creation of the nuisance 14.36 If the actual wrongdoer is invested with the management and control of the premises where the nuisance arises, liability ensues irrespective of whether he or she is an occupier in the normal sense of the word.136 Even though the person who created the interference was neither at the time of the proceedings nor at the time when the interference was created in occupation or control of the premises from which it emanated, but merely brought it about with the authority of the occupier, he or she may still be liable for creating it; it is no excuse that he or she had no right to enter on the premises in order to abate it.137 In Fennell v Robson Excavations Pty Ltd,138 the defendant was held liable in nuisance for excavation work it had carried out on one block of land which led to the removal of lateral support from the plaintiff’s land.139

14.37 In accordance with ordinary principles of tortious liability, one who authorises another to commit a nuisance is also liable. A landlord who lets premises for a particular purpose, the necessary consequence of which results in an interference with the enjoyment of their land by neighbours, will be liable to those neighbours.140 Where, on the other hand, the nuisance arises from the way in which the tenant uses the demised premises, rather than the purpose for which they have been let, it is the tenant and not the landlord who is liable.141 If the owner has granted to others a licence to use the premises, rather than a lease, the owner is liable for allowing a licensee to carry on activities naturally resulting in a nuisance.142

14.38

A defendant is vicariously liable for nuisances created by an employee in the course of employment.143 Liability in nuisance is also one in which the occupier may be responsible for the acts of independent contractors. The principle which has been [page 483] generally accepted is that stated by Cockburn CJ in Bower v Peate,144 when holding a principal liable for his independent contractor’s withdrawing support from the building of the plaintiff:

A man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, … is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing someone else.

Although this statement may have been expressed in too wide a form,145 it has been accepted as applying to actions in nuisance arising from the removal of lateral support,146 the escape of fire147 or the interference with enjoyment caused by building operations.148 However, an occupier will not be liable if the acts of the independent contractor cause injurious consequences which are neither a necessary nor a natural consequence of the employment of the contractor.149

14.39 Where the nuisance arises from a ‘state of affairs’ the nature and extent of responsibility of the creator present considerable difficulties. The cases are reconcilable by adopting the dictum of Lord Atkin in SedleighDenfield v O’Callaghan.150 He observed that, if it had been the defendants who had laid the pipe with an unprotected orifice151 that would, in the circumstances of that case, be a nuisance because the laying of the pipe: … created a state of things from which when the ditch was flowing in full stream an obstruction might reasonably be expected in the pipe, from which obstruction flooding of the plaintiff’s ground might reasonably be expected to result.

Thus, a school board which did not fence off the school grounds nor provide supervision of the pupils when in the grounds, would be liable if the natural and probable consequences of their inaction were that the pupils would trespass on neighbouring property and cause annoyance and disturbance to the occupants.152 Similarly, one who plants trees is liable for indirect injury caused by the spreading of their roots under neighbouring land: this harm is foreseeable.153 It appears that one who creates a state of affairs which results in a nuisance to an adjoining owner will [page 484] escape liability only if that consequence were something which was not reasonably foreseeable at the time of creating the state of affairs.154

Failure to remedy

14.40 The occupier of land will also be responsible for a failure to take what are reasonable steps, in the light of his or her own financial or other resources, to remedy a dangerous state of affairs on the land of which the occupier knows or ought to know, whether that state of affairs was brought about by the acts of a trespasser,155 an act of nature,156 or the activities of a predecessor in title.157 However, no liability attaches if either the defendant did not know (or ought not reasonably to have been aware) of the state of affairs,158 or could not be presumed to have realised that a state of affairs of which he or she is aware constituted a danger to the neighbours.159 This area of liability is one that has developed considerably since the middle of last century. The first clear move towards a general principle of liability for the acts of others came with the dissenting judgment of Scrutton LJ in Job Edwards Ltd v Birmingham Navigations Ltd,160 which was approved by the House of Lords in Sedleigh-Denfield v O’Callaghan.161 In the course of this development, it has also been accepted, both by the Privy Council, in Goldman v Hargrave,162 and by the English Court of Appeal, in Leakey v National Trust,163 that the ambit of liability overlaps to a large extent with that in negligence. There is, for example, the same balancing of the defendant’s means of knowledge of the probability of harm and the gravity thereof. But, since the defendant has had the source of danger thrust upon him or her either by the acts of others or by the forces of nature, some consideration is given to the resources available in eliminating that source, or preventing it from harming his or her neighbours. In Goldman v Hargrave, the defendant’s tree having caught fire after being struck by lightning, his attempts to minimise the risk of fire spreading to his neighbours’ properties by felling the tree and leaving it to burn itself out were held to be insufficient, since he might easily have doused the flames once the tree was felled. Similarly, in Leakey v National Trust, the defendant was held to be liable; the danger [page 485] to the plaintiffs’ land was brought about by a sloping bank of earth on the defendant’s property, but the means of preventing that danger were regarded as well within its resources.

14.41 One of the few cases in which the defendant has been found not to be liable is Holbeck Hall Hotel Ltd v Scarborough Borough Council.164 The plaintiff’s hotel had been built some distance back from a cliff top owned by the council. There had been a succession of landslips on the council’s land, in relation to which it had carried out remedial work. In 1993, there was a massive slip which caused the land under a wing of the hotel to become so unstable that the whole building had to be demolished. The English Court of Appeal held that this most recent slip could not reasonably have been foreseen without considerable geological investigation, and that, in consequence, the council was not liable for the damage caused by it.165 In all but exceptional circumstances166 an occupier is liable in nuisance by allowing trees, whether planted by a predecessor in title or self-sown, to encroach on, whether by branches or roots, and cause damage to neighbouring land.167 In New South Wales, this right of action has been abolished by statute,168 while in Queensland legislation provides an alternative means of resolving disputes between neighbours about trees.169

Landlord and tenant 14.42 The respective liabilities of landlord and tenant for conditions arising from a lack of repair of the demised premises call for separate treatment.170 If, at the date of letting, the landlord knows or ought to know of the condition giving rise to the actionable nuisance, then he or she is liable during the tenancy whether or not the tenant has given a covenant to repair.171 The landlord will be liable for dangerous conditions arising from want of repair during the tenancy if he [page 486] or she covenants to repair,172 reserves the right to enter and repair,173 or even if the lease includes an implied right to enter and repair such as is possessed by landlords of houses let on periodic tenancies.174 But the tenant is not exempt because the landlord is liable.175 In general, the liability of a landlord is confined to those nuisances of

which he or she knows or ought to know.176 It was, however, held in Wringe v Cohen177 that a landlord is liable for a nuisance caused by a want of repair, if he or she has agreed with the tenant to undertake the repairs, even in the absence of the landlord’s knowledge, or means thereof, of the defect. Although the decision has been criticised,178 and is inconsistent with the general principles of liability discussed in 14.40, it has been assumed still to be the law in Australia.179 Its ambit is, nevertheless, closely confined. As the court in Wringe v Cohen itself observed,180 liability still depends upon knowledge, actual or constructive, if the defect was caused by a trespasser (or other third party) or a secret unobservable process of nature. Furthermore, the special rule stated there cannot apply if the plaintiff fails to prove that the defect resulted from the landlord’s failure to repair.181

Must the Interference Complained of Emanate from Land? 14.43 Although private nuisance must involve an interference with the plaintiff’s enjoyment of land, it is not necessary that the disturbance to those rights emanates from land belonging to the defendant.182 It is sufficient if the interference is from the highway, so that picketing becomes a nuisance if it involves obstruction and besetting.183 Liability for nuisance may also arise by the defendant making repeated harassing telephone calls,184 or by reprogramming electronic locks, so as to deny [page 487] access by the plaintiffs to their own property.185 But a plaintiff cannot sue in nuisance for the activities of the defendant which occur on the plaintiff’s own land.186

Defences Prescription

14.44 A right to commit a private nuisance may be acquired as an easement by prescription. In order to decide whether this defence avails, one must look to the law of real property to discover whether the defendant has complied with the rules relating to the acquisition of an easement. Although much of the land in Australia and New Zealand is registered under the Torrens system, the legislation in all Australian jurisdictions other than New South Wales does not prevent the acquisition of easements by prescription over such land;187 acquisition of a right by prescription is not available for land under the Torrens system in New Zealand.188 The most common method of creating such an easement is by 20 years’ continual user which is neither without the owner’s permission nor knowledge:189 one may, for example, thus acquire the right to pour effluent in a stream, but not if it is done secretly.190 Where there is a constant change in the amount of inconvenience caused, as in the case of fumes and noise, it is doubtful whether a prescriptive right can be acquired. Of course, if the particular use is prohibited by statute, no prescriptive right can be acquired.191 Further, ‘acts which are neither prevented nor actionable cannot be relied upon to found an easement’.192 Thus, where a defendant confectioner had for more than 20 years made certain noises on his land, which then for the first time interfered with the enjoyment of the plaintiff’s user of his land when the plaintiff built a medical consulting room at the end of his garden near to the source of the noise, the defendant could not plead a prescriptive right: there had been no invasion of legal right before, nothing which the plaintiff could take steps to prevent.193

The relevance of the conduct of the plaintiff 14.45 Authorities on the several matters under this head are surprisingly scanty. It is no defence that the plaintiff came to the nuisance by occupying land adjoining it.194 Nor is it a defence that the nuisance has only arisen because the plaintiff [page 488]

has chosen to use a particular part of the land: the law protects a person in the reasonable use195 of land against those nuisances which the defendant has not acquired a prescriptive right to commit.196 Yet, it may be assumed that the plaintiff has the normal duty in tort to take reasonable steps to mitigate any loss: he or she should, for instance, do whatever is reasonable to minimise the damage when land is flooded in consequence of a neighbour’s tortious conduct, or when tree roots threaten to encroach.197 The ordinary law of causation applies also in nuisance, and, if the interference is caused not by the defendant but by the plaintiff’s own acts, the latter will not recover.198 The defences of consent and assumption of risk are also available. The operation of the defence of consent is illustrated by Lyttleton Times Co Ltd v Warners Ltd.199 The appellants agreed with the respondents that they would rebuild their premises and lease the top floors of the new building to the respondents, in order to provide more accommodation in the latter’s hotel. Both parties assumed, on the basis of independent advice, that the additional accommodation would not be subject to disturbance by noise or vibration from the appellants’ printing presses, located on the lower floors of the new building. Such an assumption proved to be incorrect, but the Privy Council dismissed the respondent’s action for nuisance, since the appellants were found not to have done anything, either in the construction of the new building or in operating the printing presses, other than as provided for in the agreement.200 In Kiddle v City Business Properties Ltd,201 the plaintiff complained of the damage caused to his shop when flooding from the gutter carrying off the water from a part of the premises retained by the defendant landlord occurred without negligence on the part of the defendant. It was held that the tenant took the premises as he found them and must be deemed to have run this risk: hence his action in nuisance failed. In the absence of clear authority on this point, it would be reasonable to expect that the apportionment provisions of the contributory negligence legislation (see 10.15) apply to nuisances based on negligent conduct,202 but not where the interference is the intended result of the intentional act of the defendant. [page 489]

Statutory authority203 14.46 This is the most important defence. Many activities which interfere with the enjoyment of land are carried out by public or private enterprises in pursuance of an Act of Parliament. If what parliament authorised was no more than a permissive act, which might be carried out without committing a nuisance, the defence of statutory authority fails. But if the statute has authorised the doing of something which, after taking all reasonable care and adopting such precautions as are reasonable in the circumstances, nevertheless constitutes a nuisance, then parliament must be taken to have authorised a nuisance to that extent.204 The availability of the defence is therefore a matter of the interpretation of the particular statute in question in each case, to determine whether the nuisance is the inevitable or necessary result of compliance with the statutory provision.205 In relation at least to a large undertaking carried out under statutory powers, the court must also take into account any changes in the locality brought about by the works. In Allen v Gulf Oil Refining Ltd206 a statute was interpreted by the House of Lords as authorising the defendant company to acquire compulsorily land near Milford Haven for the purpose of constructing and operating an oil refinery. The company built the refinery and the plaintiffs complained that its smell, noise and vibration constituted a nuisance. The company pleaded the defence of statutory authority. The House of Lords held that the plaintiffs would first have to establish a nuisance, and that the change in environment authorised by establishing the refinery was relevant on that issue. If a nuisance were proved, the company then had the onus of proving that the nuisance was an inevitable result of carrying on a refinery there.207 Only if it discharged that burden would it have a defence.

Other defences 14.47 Defences discussed in 6.18 and 6.20, such as defence of property or necessity, may also be available in nuisance. It is no defence that the act of the defendant would not have been a nuisance but for the act of others, too, provided that the defendant knew what the others were doing.208

[page 490]

Fire 14.48 The Fires Prevention (Metropolis) Act 1774 s 86, which is in force, in one form or another, in all Australian jurisdictions (other than New South Wales, Queensland and the Northern Territory) but not in New Zealand,209 provides that, in an action brought in respect of a fire, it is a defence to prove that the fire began accidentally. The defence has no application where the fire was caused by the negligence of the defendant or intentionally created by the defendant, whether acting personally or through servants or agents.210 Even when a fire started accidentally, if the defendant negligently allowed it to change from a small one to a raging fire, the Act would not afford a defence for the damage caused by that raging fire.211 Thus, the only effect of the Act is to ensure that the plaintiff has the burden of proving that the fire was not accidental, either in its origin or its spreading,212 a burden which that party would normally bear in any case. There would appear to be little reason for the section to remain in force,213 and it is consequently not surprising that a majority of the High Court has declared that the legislation ‘can generally be treated by the courts in this country as no longer applicable’.214

Remedies Damages 14.49 This remedy is normally the one sought where the nuisance suffered is a sensible material injury to the plaintiff’s property (see 14.8) or an interference with the natural right of support for land: see 14.18. The measure of damages is similar to that in that other tort which protects interests in land, trespass.215 The plaintiff is entitled to full restitution for the loss. Where, for instance, a house (or crops or the like)216 is destroyed or damaged then the plaintiff will recover the difference between [page 491]

the monetary value of the interest (whether as landlord, tenant or otherwise) before and after the event.217 The plaintiff will also be entitled to recover such losses as are a reasonably foreseeable consequence218 of the commission of the nuisance such as, in the case of a business that has suffered interference, the loss of custom219 or, if the plaintiff is forced to move elsewhere by reason of the disturbance, the costs associated with that change.220 Where the nuisance is of either of the types referred to above, the principle generally applied is to award the plaintiff the diminution in value of the property brought about by the nuisance. But it has also been accepted that the injured party may recover the cost of restoring that property to the state it was in prior to the commission of the tort,221 unless that is out of all proportion to the reduction in value, in which case the damages will be limited to that latter amount.222

14.50 To continue a nuisance may amount to the commission of a further tort of nuisance.223 For example, where a defendant, who imposed a strain on the plaintiff’s wall by piling earth against it, was sued in nuisance it was stated that ‘a fresh cause of action arises as each brick topples down, and that there is a continuing cause of action until the root of the trouble is eradicated’.224 But damages can be awarded (at common law) only in respect of each accrued right of action (that is, loss already suffered). Where, on the other hand, in pursuance of its statutory discretionary power,225 the court refuses an injunction, the award of damages which it may make in lieu may take account of future as well as past damages.226

Injunction 14.51

A plaintiff who has, at the time of trial, already suffered a measurable loss to the value of the property will seek a remedy in damages. Where, on the other hand, the interference is one that is likely to continue, the plaintiff will seek to prevent any further damage (especially in cases where the interference is to the enjoyment of property) by the grant of an injunction against the defendant. Of course, the plaintiff may seek both remedies, but in that case damages for permanent depreciation of the land by the interference cannot be awarded, because it is to be presumed that the

[page 492] injunction will be obeyed, so that the land will not so depreciate.227 In those cases in which injunctive relief is sought, negligent conduct is rarely relied on for, if the defendant persists after the plaintiff has complained, so that the plaintiff has to ask for a curial remedy, obviously the conduct is intentional. As is discussed in general terms at 27.51, the injunction is a discretionary remedy, and one may therefore make out an actionable case in nuisance, and yet be limited in relief to an award of damages. Once the plaintiff has proved that substantial interference has already occurred, and is likely to recur in the future, the burden is on the defendant to adduce proof of special circumstances why an injunction should not be granted.228 Such special circumstances may be shown, and an injunction refused, if the interference is no more than occasional,229 if the detriment to the plaintiff is capable of monetary assessment in a modest amount,230 or if the defendant has, after complaint has been made, taken reasonable steps to abate the nuisance.231

14.52 It has been suggested that the power of the courts to decide whether to grant an injunction or to award damages only enables them to regulate the use of the land in the public interest, either by forbidding an activity or by allowing it to continue while requiring the law breaker to pay the social costs resulting from the activity.232 Yet the courts will not refuse an injunction because the activity benefits a section of the public, if all the requirements of the tort are established.233 The courts may grant an injunction but suspend its operation until the defendants have had time to end the nuisance.234

Abatement 14.53 Apart from the judicial remedies discussed above, the law permits a person whose enjoyment of land has been interfered with, or is threatened with imminent interference,235 to adopt the self-help remedy of doing what is necessary to abate the nuisance. Abatement involves the removal of the source of the interference, and not merely taking protective measures designed to minimise the harmful effects thereof.236

[page 493] If the removal of the source of the nuisance involves entering onto the land from which it emanates, the fact that the entry is for the purpose of abatement may provide a defence to what would otherwise be a trespass, and has been considered above: see 6.26. But abatement may be undertaken by, for instance, removing encroaching branches or roots of trees, and not involve entry onto another’s land.237 While abatement is permitted, it is not favoured by law.238 If it is carried out, damages are generally not available either for injury which has already been suffered239 or for the cost of undertaking the work.240 But since abatement is a privilege and not a duty, the fact that it has not been availed of does not affect the plaintiff’s right to damages241 or an injunction.242 In Queensland, the remedy of abatement in relation to trees in a neighbouring property (see 14.41) is supplemented by legislation providing an alternative means of resolving any dispute.243

Public Nuisance244 Elements 14.54 A miscellany of acts, or any omission, ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects’245 may constitute the crime of public nuisance.246 And, if the commission of this crime injuriously affects a number of people, they may bring an action in tort against the offender. Since the nuisance, ex hypothesi, causes injury or disturbance to the public at large, and it would be unreasonable to expect any one person to shoulder the burden of an action, proceedings must generally be brought in the name of the AttorneyGeneral.247 However, an individual may also maintain an action in tort in public nuisance by showing that he or she has suffered particular damage.248 This particular damage is not limited to special damage in the sense [page 494]

of actual pecuniary loss;249 it may consist, for example, of inconvenience or delay provided that it is substantial and appreciably greater in degree than any suffered by the general public.250 Thus a plaintiff recovered in public nuisance for both damage to his vehicle on the highway and for interference with his peaceful sleep in his adjoining house.251

14.55 The most important area of this tortious liability is that of nuisance on the highway, either by obstructing252 or rendering passage along it unsafe.253 Causing crowds or vehicles to block the highway,254 leaving dangerous articles such as unlighted scaffolding there,255 or allowing pigeons to roost on a railway bridge so that their droppings affected pedestrians passing under it,256 or conducting operations off the highway which menace the safety of those upon it,257 are characteristic illustrations of nuisances on the highway.258 However, a majority of the High Court of Australia, in considering whether a governmental authority should be liable for the state of repair of a road,259 held that the time had come to treat an action in public nuisance for personal injury suffered on the highway as absorbed by the ordinary principles of negligence, and no longer a separate tort.260

14.56 But a claim in public nuisance for personal injuries sustained by a person while passing along the highway is not the only circumstance in which this tort may be relied on. The economic interests of occupiers of premises adjoining the highway may be protected in an action based on public nuisance when they suffer special damage as a result of a nuisance on a highway, although the damage complained of is not suffered by them qua users of the highway: for example, shopkeepers, access to whose premises has been interfered with,261 or whose customers have been subjected to noxious smells and darkened rooms as a result of the parking of horses [page 495] and carts outside their premises,262 have succeeded in this tort.263 So also has a householder who was prevented by the erection on a highway of a stand which blocked the view from his house, from letting for hire window seats from which to view a procession.264 But interference with the purely

economic interests of the plaintiff by preventing or hindering the effective use of a licence to catch fish is not a public nuisance, as it affects no legally recognised right.265

14.57 A further way in which liability in public nuisance is identical with that in negligence was established by the Privy Council in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2))266 when it held that the defendant will be liable only if the plaintiff’s damage was such as ought reasonably to have been foreseen. As is discussed at 9.7ff, the plaintiffs’ ship was damaged in a fire caused by the defendants carelessly allowing oil to overflow from their ship into the waters of Sydney Harbour. The defendants were held liable for the tort derived from public nuisance, but only because the fire on the plaintiffs’ ship was held to be a foreseeable consequence of the defendants’ wrongful act.267

The relation between public nuisance and private nuisance 14.58 A final question is whether public and private nuisance are in fact one and the same. Certainly, the rules as to who is deemed to be responsible for an invasion of the plaintiff’s interest are the same.268 But in other respects the rules of the two torts are not identical. While there may be little logic in differentiating between inconvenience to the public or to a landowner, the history of the two torts demands that they remain distinct.269 In particular, prescription is no defence to suits derived from public nuisance,270 and victims of private nuisance who show substantial interference need not prove more loss than their fellows. One particular form of private nuisance is interference with access to a highway. Because very often the same facts may also constitute the tort derived from public nuisance and claims based on both torts are joined, it is necessary to distinguish the two. These rights of access, like other property rights such as easements, now receive, [page 496]

under the influence of the law of real property, an emphasis quite different from that of the remainder of the tort of private nuisance. The issue is: has the plaintiff a right which the defendant has violated,271 not whether the defendant’s conduct is so unreasonable an interference that it should be deemed tortious: see 14.19. Consequently, interference with access, whether to roads or navigable waters,272 is actionable without proof of specific damage.273 _______________ 1.

See Winfield, ‘Nuisance as a Tort’ (1931) 4 Camb LJ 189; Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480; Gearty, ‘The Place of Private Nuisance in a Modern Law of Torts’ [1989] CLJ 214; Lee, ‘What is Private Nuisance’ (2003) 119 LQR 298.

2.

For further comment on the various meanings of the word nuisance, see Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301 at 310 per Starke J; Hargrave v Goldman (1963) 110 CLR 40 at 59-60 per Windeyer J.

3.

See, eg, Bryson JA in Sutherland Shire Council v Becker (2006) 150 LGERA 184 at [119], citing Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 at 639; [1966] 2 All ER 709 at 716 (PC); Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 at 262 (PC).

4.

See, eg, Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 897; 3 All ER 349 at 360 per Lord Atkin.

5.

It is often essential for the plaintiff to bring the case within the ambit of trespass. Thus, in Kelsen v Imperial Tobacco Co [1957] 2 QB 334; 2 All ER 343 (see 5.9, fn 76), had the invasion of the airspace by the sign not been a trespass the plaintiff would have failed because the interference would not have been sufficiently unreasonable and substantial to be a nuisance. On trespass to land generally, see 5.1ff.

6.

Harrop v Hirst (1868) LR 4 Ex 43; cf McCartney v Londonderry and Lough Swilly Ry Co Ltd [1904] AC 301 (HL). On prescription as a defence to an action in nuisance, see 14.44.

7.

Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343 at 349-50 per Lord Wright MR (CA); cf (1936) 52 LQR 463.

8.

Walsh v Ervin [1952] VLR 361 at 364 per Sholl J.

9.

Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343 at 349; Walsh v Ervin [1952] VLR 361 at 363–4.

10.

Walsh v Ervin [1952] VLR 361 at 370 per Sholl J, who also indicated that exemplary damages might be awarded in a proper case.

11.

See, eg, Grasso v Love [1980] VR 163 (FC).

12.

Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 (HL); Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 (FC); it was assumed in Neylon v Dickens [1987] 1 NZLR 402 at 407 per Cooke P (CA) that Slack’s case applies in New Zealand.

13.

Originally enacted in England as the Chancery Amendment Act 1858 s 2, commonly known as Lord Cairns’ Act. Substantially similar provisions are contained in: Supreme Court Act 1970 (NSW) s 68; Supreme Court Act 1935 (SA) s 30; Supreme Court Act 1986 (Vic) s 38; Supreme

Court Act 1935 (WA) s 25(10); Judicature Act 1908 (NZ) s 16A; for the means by which legislative provision to a like effect applies in Queensland, see Conroy v Lowndes [1958] Qd R 375 at 383 per Philp J and in relation to the two territories, see Supreme Court Act 1933 (ACT) s 26; Supreme Court Act 1979 (NT) s 62; Brooks v Wyatt (1994) 99 NTR 12 at 28 per Kearney J. 14.

Yorke Bros (Trading) Pty Ltd v Commr of Main Roads [1983] 1 NSWLR 391 at 399 per Powell J; Supreme Court Civil Procedure Act 1932 (Tas) s 11(13)(b).

15.

(1865) 11 HLC 642; 11 ER 1483, approving a direction to the jury by Mellor J embodying these principles: (1863) 35 LJ QB 66. For a detailed consideration of the decision in its social and historical context, see McLaren, ‘Nuisance Law and the Industrial Revolution’ (1983) 3 OJLS 155.

16.

The action might still have failed for other reasons: eg, that the use was not, on the whole, unreasonable: see 14.19ff.

17.

Gaunt v Fynney (1872) 8 Ch App 8 at 11-12 per Lord Selborne LC.

18.

Salvin v North Brancepeth Coal Co (1874) 9 Ch App 706n per Jessel MR, aff’d (1874) 9 Ch App 705, in which James LJ expressly approved the comment of Jessel MR. Scientific evidence is, however, admissible to prove that visible damage was caused by the defendant’s operations.

19.

(1865) 11 HLC 642 at 650-1; 11 ER 1483 at 1486.

20.

Mayo v Seaton UDC (1903) 68 JP 7 (erection of public lavatories not a private nuisance, although it depreciated the value of the plaintiff’s premises from which persons proceeding to the lavatories could be seen); cf Thompson-Schwab v Costaki [1956] 1 All ER 652 (CA), fn 31 below, where the depreciation was not made the basis of finding a nuisance, and Russell Transport Ltd v Ontario Malleable Iron Co [1952] 4 DLR 719.

21.

Harris v Carnegie’s Pty Ltd [1917] VLR 95; Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; Howard Electric Ltd v AJ Mooney Ltd [1974] 2 NZLR 762.

22.

Kent v Dominion Steel & Coal Corp Ltd (1964) 49 DLR (2d) 241 at 248 per Furlong CJ (Nfld CA); Muirhead v Timbers Bros Sand & Gravel Ltd (1977) 3 CCLT 1 at 5 per Rutherford J (Ont HCJ).

23.

Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729 at 740 per Mahon J.

24.

See, eg, Pittar v Alvarez (1916) 16 SR (NSW) 618; Andreae v Selfridge & Co Ltd [1938] Ch 1; [1937] 3 All ER 255 (CA); Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32; see also Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 at 638 per Earl Loreburn.

25.

Harris v Carnegie’s Pty Ltd [1917] VLR 95.

26.

[1966] Tas SR 113 at 122-3 per Burbury CJ.

27.

See further, Davies, ‘Private Nuisance, Fault and Personal Injuries’ (1990) 20 UWA L Rev 129, esp at 132-6.

28.

Walter v Selfe (1851) 4 De G & Sm 315 at 322; 64 ER 849 at 852 per Knight-Bruce V-C; adopted in, eg, Painter v Reed [1930] SASR 295 at 301-2 per Richards J; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 486 per Jordan CJ; Munro v Southern Dairies Ltd [1955] VLR 332 at 335 per Sholl J.

29.

Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 at 261 per Greene MR (CA) (the passage does not appear in the report in [1938] Ch 1); quoted with approval in Munro v Southern Dairies Ltd [1955] VLR 332 at 335 per Sholl J; Kidman v Page [1959] St R Qd 53 at 59 per Stanley J.

30.

Crump v Lambert (1867) LR 3 Eq 409 at 412 per Lord Romilly MR.

31.

Thompson-Schwab v Costaki [1956] 1 All ER 652 (CA); Poirier v Turkewich (1963) 42 DLR (2d) 259 (Man QB); and see A-G (BC) v Couillard (1984) 11 DLR (4th) 567 (BCSC).

32.

Laws v Florinplace Ltd [1981] 1 All ER 659.

33.

Abbott v Arcus (1948) 50 WALR 41.

34.

Raciti v Hughes (1995) 7 BPR 14,837.

35.

Bank of New Zealand v Greenwood [1984] 1 NZLR 525.

36.

Nor-Video Services Ltd v Ontario Hydro (1978) 84 DLR (3d) 221 (Ont HCJ); and see Hunter v Canary Wharf Ltd [1997] AC 655; 2 All ER 426 (HL).

37.

Robinson v Kilvert (1889) 41 Ch D 88 (CA); Eastern & South African Telegraph Co Ltd v Cape Town Tramways Co Ltd [1902] AC 381 (PC); Noyes v Huron & Erie Mortgage Corp [1932] 3 DLR 143 (Ont SC); Pillipay v Pacific Power & Light Co 207 P 957 (1922); Amphi-Theatres Inc v Portland Meadows 198 P 2d 847 (1948). Cf McMahon v Catanzaro [1961] QWN 22 (plaintiff’s method of poultry farming necessitated the birds being kept completely undisturbed; defendant held liable in nuisance by his activity of blasting tree stumps).

38.

[1965] Ch 436; 1 All ER 264.

39.

Ibid at 448; 271-2.

40.

His Lordship also considered that the reception of television signals was no more than a ‘purely recreational facility’, and therefore not entitled to protection, but this view has been rejected in Hunter v Canary Wharf Ltd [1997] AC 655; 2 All ER 426 (HL).

41.

McKinnon Industries Ltd v Walker [1951] 3 DLR 577 at 581 per Lord Simonds.

42.

But cf Trees (Disputes Between Neighbours) Act 2006 (NSW) and Property Law Act 2007 (NZ) s 333, both of which provide some statutory protection of a landowner’s view.

43.

The rule is of considerable antiquity, having been accepted in, eg, Aldred’s case (1610) 9 Co Rep 57b; 77 ER 816 and Knowles v Richardson (1670) 1 Mod 55; 86 ER 727. For modern instances of its application see, eg, Kent v Johnson (1973) 21 FLR 177 at 209-13 per Smithers J; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 at 205-6 per Young J; Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 at [89]-[91] per Spigelman CJ (CA).

44.

Campbell v Paddington Corporation [1911] 1 KB 869; Owen v O’Connor [1963] SR (NSW) 1051.

45.

Hunter v Canary Wharf Ltd [1997] AC 655; 2 All ER 426 (HL).

46.

(1937) 58 CLR 479.

47.

Ibid at 493 per Latham CJ, 506-7 per Dixon J, 523-4 per McTiernan J (Rich and Evatt JJ dissented, and would have upheld the plaintiffs’ claim); see also Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; 1 All ER 1159 (HL) (plaintiffs held to have no private rights in respect of the bed of the river Thames, and hence no cause of action in private nuisance for interference with their use thereof).

48.

Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 at 261 per Greene MR (CA); see 14.11.

49.

(1987) Aust Torts Reports 80-107; see also Matania v National Provincial Bank Ltd [1936] 2 All ER 633 (CA); McMahon v Catanzaro [1961] QWN 22; Lloyds Bank plc v Guardian Assurance plc (1986) 35 BLR 34 (CA); Van Son v Forestry Commission of NSW (1995) 86 LGERA 108 (NSWSC).

50.

Polsue & Alfieri Ltd v Rushmer [1907] AC 121 (HL); Vanderpant v Mayfair Hotel Co Ltd [1930]

1 Ch 138 at 166 per Luxmoore J; Clark v Sloane [1923] NZLR 1129 at 1132-3 per Stringer J; Bloodworth v Cormack [1949] NZLR 1058 at 1062 per Callan J; Kidman v Page [1959] St R Qd 53 at 65 per Stanley J. 51.

(1916) 16 SR (NSW) 618 at 627-8; see also Sturges v Bridgman (1879) 11 Ch D 852 at 865 per Thesiger J; Munro v Southern Dairies Ltd [1955] VLR 332 at 337 per Sholl J.

52.

Field v South Australian Soccer Assn [1953] SASR 224 at 231 per Napier CJ.

53.

[1948] VLR 269.

54.

Cf Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 esp at 488 per Jordan CJ (FC), in which the primary judge’s conclusion, that Marrickville in Sydney was not essentially industrial, was accepted by the Full Court.

55.

Young v Wheeler (1987) Aust Torts Reports 80-126 at 68,969 per Wood J; but the fact that the plaintiff lives in a particularly arboreal neighbourhood may require that the branches cause a very marked interference before an injunction would be issued: Asman v MacLurcan (1985) 3 BPR 9592 at 9594-5 per Young J.

56.

(1922) 38 TLR 615.

57.

[1950] 1 KB 201; [1949] 2 All ER 851 (CA). In the House of Lords negligence alone was relied on: see 8.1.

58.

Ibid at 208; 855-6.

59.

[1946] 1 All ER 489.

60.

Ibid at 493.

61.

[1940] AC 880 at 895-6; 3 All ER 349 at 359 (HL), applied in Pemberton v Bright [1960] 1 All ER 792 (CA).

62.

See also British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 2 All ER 1252 (defendants storing metal foil in such a way as to cause an escape of it on an isolated occasion resulting in a flash-over at a nearby electricity substation liable in nuisance for foreseeable harm through power loss to plaintiffs’ factory in the vicinity, as explained by Thesiger J in SCM (UK) Ltd v WJ Whittal & Son Ltd [1970] 2 All ER 417 at 430; on appeal [1971] 1 QB 337; [1970] 3 All ER 245); Aldridge v Van Patter [1952] 4 DLR 93 at 107-9 per Spence J (Ont HCJ) (single emission from defendants’ land gave rise to liability in nuisance, as its occurrence was known by them to be probable).

63.

(1963) 110 CLR 40 at 60.

64.

That is, foreseeably likely to a defendant who knows or ought to know of the ‘state of affairs’: Challen v McLeod Country Golf Club (2004) Aust Torts Reports 81-760 at [35] per Mullins J (Qld CA).

65.

Including a removal by the forces of nature which the defendant ought to have foreseen and guarded against: Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836; 2 All ER 705 (CA); Brouwers v Street [2011] 1 NZLR 645 (CA).

66.

Dalton v Angus & Co (1881) 6 App Cas 740; Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 (CA); Byrne v Judd (1908) 27 NZLR 1106 (CA); Attorney-General v Whangarei City Council [1987] 2 NZLR 150 (CA); and see Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; 277 ALR 257 at [32] per French CJ, Hayne, Heydon, Crennan and Kiefel JJ.

67.

Conveyancing Act 1919 (NSW) s 177.

68.

Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738 (CA); LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1988) 6 BCL 45 (NSWSC); similarly for land on which fill has been placed: Hicks v Lake Macquarie CC (1992) 77 LGRA 261 (NSWSC). This limitation has been abrogated by the Property Law Act 1974 (Qld) s 179: De Pasquale Bros Pty Ltd v Cavanagh Biggs & Partners Pty Ltd [2000] 2 Qd R 461 at [48] per Chesterman J.

69.

Brouwers v Street [2011] 1 NZLR 645 (CA); SJ Weir Ltd v Bijok [2011] SASCFC 165 at [32]ff per Gray and Sulan JJ, at [66]ff per Blue J.

70.

For a full discussion of each of these rights see Bradbrook and Neave, Easements and Restrictive Covenants in Australia, 2nd ed, 2000, chs 7, 8 and 9.

71.

Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903; 3 All ER 349 at 364 per Lord Wright.

72.

Kennaway v Thompson [1981] QB 88 at 94; [1980] 3 All ER 329 at 333.

73.

The last phrase in this quotation has been used on innumerable occasions, and may be traced back at least to Bamford v Turnley (1862) 3 B & S 66 at 84; 122 ER 27 at 33 per Bramwell B.

74.

See, eg, Painter v Reed [1930] SASR 295 esp at 305 per Richards J; Munro v Southern Dairies Ltd [1955] VLR 332 at 335 per Sholl J.

75.

Salmond and Heuston on Torts, 21st ed, 1996, p 73.

76.

Harrison v Southwark & Vauxhall Water Co [1891] 2 Ch 409 at 414 per Vaughan Williams J.

77.

See Dennis v Ministry of Defence [2003] EWHC 793 (QB) at [46]-[48] per Buckley J.

78.

[1955] VLR 332; see also Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287; Painter v Reed [1930] SASR 295; and, in relation to public nuisances, Yorke Bros (Trading) Pty Ltd v Commr of Main Roads [1983] 1 NSWLR 391 at 295-7 per Powell J.

79.

[1955] VLR 332 at 337.

80.

Ibid.

81.

And see Barr v Biffa Waste Services Ltd [2012] 3 WLR 795; 3 All ER 380 at [86]-[88] (CA).

82.

[1970] VR 2 at 10; see also Field v SA Soccer Assn [1953] SASR 24; Bloodworth v Cormack [1949] NZLR 1058; Watson v Croft Promosport Ltd [2009] 3 All ER 249 (CA) (relating to noise from speedway tracks); Kennaway v Thompson [1981] QB 88 (motor boat races).

83.

[1936] 2 KB 468; 1 All ER 825.

84.

See generally 14.12.

85.

[1936] 2 KB 468 at 474-5; 1 All ER 825 at 829-30. See also Christie v Davey [1893] 1 Ch 316; Pratt v Young (1952) 69 WN (NSW) 214; Stoakes v Brydges [1958] QWN 5.

86.

(1950) 50 SR (NSW) 113.

87.

On the remedy of abatement, see 14.53.

88.

[1895] AC 587 (HL); followed in Stephens v Anglian Water Authority [1987] 3 All ER 379 (CA), in which the plaintiff’s action was in negligence.

89.

And see Elston v Dore (1982) 149 CLR 480; 43 ALR 577 which has been described as being, in a sense, the reverse of Bradford Corporation v Pickles: see Baxt and Kewley (eds), An Annual Survey of Australian Law 1983, 1984, p 366.

90.

(1937) 58 CLR 479; 14.13.

91.

See also Phipps v Pears [1965] 1 QB 76; [1964] 2 All ER 35 (CA); Langbrook Properties Ltd v

Surrey County Council [1969] 3 All ER 1424, in both of which damage to the plaintiffs’ property by reason of the defendants’ activities was held not to be remediable, as no rights of either of the plaintiffs had been infringed. 92.

Gartner v Kidman (1962) 108 CLR 12 at 46 per Windeyer J; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 at 205-6 per Young J. In the United States, the erection of a spite fence sounds in nuisance: Restatement Torts (Second), sec 829, comment c and illustration 1. In Canada, it has been argued that the courts should follow this approach (McLaren, ‘Nuisance in Canada’ in Linden (ed), Studies in Canadian Tort Law, Vol 1, 1968, pp 360-1) but that is unlikely, given that a ‘loss of prospect’ has been held not compensable: St Pierre v Ontario (1987) 39 DLR (4th) 10 at 17-18 per McIntyre J (SCC).

93.

LR 8 Ch App 467 at 471.

94.

See, eg, Painter v Reed [1930] SASR 295; Dunstan v King [1948] VLR 269; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 (FC); Munro v Southern Dairies Ltd [1955] VLR 332.

95.

See the comments of Lord Wilberforce in Allen v Gulf Oil Refining Ltd [1981] AC 1001 at 101314; 1 All ER 353 at 357-8 (HL).

96.

See, eg, Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201; Wheeler v JJ Saunders Ltd [1996] Ch 19; [1995] 2 All ER 697 (CA); Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536; Barr v Biffa Waste Services Ltd [2012] 3 WLR 795; 3 All ER 380 at [75]-[77].

97.

(1862) 3 B & S 66 at 83; 122 ER 27 at 33.

98.

[1938] Ch 1; [1937] 3 All ER 255 (CA).

99.

See also Metropolitan Properties Ltd v Jones [1939] 2 All ER 202 at 205 per Goddard LJ.

100. [1962] SR (NSW) 521 (FC). 101. See also Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291; Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Report 80-107 (defendant’s mode of carrying out building operations found to be excessive); Corbett v Pallas (1995) 86 LGERA 312 (NSWCA); Kraemers v A-G (Tas) [1966] Tas SR 113 at 125 per Burbury CJ, at 154 per Neasey J (FC). 102. Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; 1 All ER 17 (CA), overruling Giles v Walker (1890) 24 QBD 656 and disapproving Pontardawe Rural Council v Moore-Gwyn [1929] 1 Ch 656; French v Auckland City Corporation [1974] 1 NZLR 340; and see the cases cited in fn 167 below, on liability for the encroachment of trees. For the extent of the responsibility in such a case, see 14.40. 103. (1908) 7 CLR 51. 104. (1963) 110 CLR 40 at 70-1. 105. [1967] 1 AC 645 at 664; [1966] 2 All ER 989 at 996. 106. See, eg, Painter v Reed [1930] SASR 295 at 304 per Richards J; McMahon v Catanzaro [1961] QWN 22; Bayliss v Lea [1961] SR (NSW) 247 at 271-2 per Hardie J, aff’d [1962] SR (NSW) 521 (FC). 107. See esp Andreae v Selfridge & Co Ltd [1938] Ch 1 at 5-6; [1937] 3 All ER 255 at 264 per Greene MR; cf Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80-107 at 68,748 per Hodgson J (interference caused by building operations in a business district readily preventable by confining activities to nighttime). 108. Harrison v Southwark & Vauxhall Water Co [1891] 2 Ch 409 at 414 per Vaughan Williams J.

109. Matania v National Provincial Bank Ltd [1936] 2 All ER 633 at 642-5 per Slesser LJ (CA). 110. [1905] 2 KB 597; and see British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 2 All ER 1252, p 453, n 77. 111. [1962] SR (NSW) 521; 14.26. 112. Harris v Carnegie’s Pty Ltd [1917] VLR 95; see also Kraemers v A-G (Tas) [1966] Tas SR 113 at 122-3 per Burbury CJ. 113. [1919] 1 KB 394; see also Seligman v Docker [1949] Ch 53; [1948] 2 All ER 887. 114. (1872) 8 Ch App 8 at 11-12. 115. See, eg, their attitude to pure mental harm, discussed in 7.41ff. 116. See, eg, Dunstan v King [1948] VLR 269; Kidman v Page [1959] St R Qd 53. 117. (1879) 11 Ch D 852. 118. Lester-Travers v City of Frankston [1970] VR 2 at 10 per Anderson J. 119. An occupier may recover the cost of reasonable remedial work in respect of damage which occurred before the acquisition of the property, if the nuisance is a continuing one of which the defendant was, or ought to have been, aware: Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321; [2001] 4 All ER 737 (HL). 120. See, eg, Hunter v Canary Wharf Ltd [1997] AC 655; 2 All ER 426 (HL). 121. Vaughan v Shire of Benalla (1891) 17 VLR 129. 122. Ruhan v Water Conservation and Irrigation Commn (1920) 20 SR (NSW) 439. 123. Foster v Warblington Urban District Council [1906] 1 KB 648 (CA); Paxhaven Holdings Ltd v Attorney-General [1974] 2 NZLR 185 at 188-9 per Mahon J. See also Crabb, ‘The Property Torts?’ (2003) 11 Tort L Rev 104. 124. Pemberton v Southwark London Borough Council [2000] 3 All ER 924 (CA). 125. Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 (App Div). 126. Oldham v Lawson (No 1) [1976] VR 654; Hunter v Canary Wharf Ltd [1997] AC 655; 2 All ER 426 (HL), applying Malone v Laskey [1907] 2 KB 141 (CA) and overruling in part Khorasandjian v Bush [1993] QB 727; 3 All ER 669 (CA). 127. Delta Projects Ltd v North Shore City Council [1996] 3 NZLR 446. 128. Jesser v Gifford (1767) 4 Burr 2141; 98 ER 116; Carter v Kenyon (1863) 2 SCR (NSW) 222; cf Maritime Services Board (NSW) v Leichhardt MC (1972) 26 LGRA 42 where the interference was de minimis. See generally McCarty v North Sydney MC (1918) 18 SR (NSW) 210 at 212-13 per Street CJ in Eq. 129. Simpson v Savage (1856) 1 CB (NS) 347; 140 ER 143 (smoke discharged from fire); Thompson v Sydney MC (1936) 14 LGR (NSW) 32 (dust from municipal depot). 130. Harris v Carnegie’s Pty Ltd [1917] VLR 95; Crowhurst v Amersham Burial Board (1878) LR 4 Ex D 5; Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 2 All ER 1252; see also the comments of Lord Cooke in Hunter v Canary Wharf Ltd [1997] AC 655 at 719; 2 All ER 426 at 463 in support of such a view; cf Cunard v Antifyre Ltd [1933] 1 KB 551 in which a claim for damage to furniture was refused, in so far as it was based on nuisance, although the claim in negligence succeeded. 131. [1974] 2 NZLR 762.

132. Ibid at 766. 133. (1899) 20 LR (NSW) (L) 58 (FC). 134. See also Evans v Finn (1904) 4 SR (NSW) 297 (FC), in which a similar claim failed only because of a lack of proof of injury to health, and the dictum of Windeyer J in Benning v Wong (1969) 122 CLR 249 at 318: ‘I see no reason why … damages should not extend to any personal harm the nuisance has … caused’. Although Lord Cooke, in dissent in Hunter v Canary Wharf Ltd [1997] AC 655 at 718-19; [1996] 2 All ER 426 at 462-3, considered that damages for personal injury were recoverable in nuisance, that view was rejected in Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1; 1 All ER 589 at [9] per Lord Bingham and at [35] per Lord Hoffmann. 135. Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 897; 3 All ER 349 at 360 per Lord Atkin (HL). 136. Hall v Beckenham Corporation [1949] 1 KB 716; 1 All ER 423. 137. Thompson v Gibson (1841) 7 M & W 456; 151 ER 845; Kraemers v A-G (Tas) [1966] Tas SR 113 at 118 per Burbury CJ, at 153 per Neasey J. Despite the suggestion by Devlin J in Southport Corporation v Esso Petroleum Co Ltd [1953] 2 All ER 1204 at 1207 to the contrary, it is doubtful whether a trespasser will be liable in nuisance: Beaudesert Shire Council v Smith (1966) 120 CLR 145 at 152 per Taylor, Menzies and Owen JJ. 138. [1977] 2 NSWLR 486 (CA); see also Attorney-General v Whangarei City Council [1987] 2 NZLR 150 (CA); Pantalone v Alaouie (1989) 18 NSWLR 119 at 129-30 per Giles J. 139. The same principle applies to the statutory right to support of land granted by s 179 of the Property Law Act 1974 (Qld): De Pasquale Bros Pty Ltd v Cavanagh Biggs & Partners Pty Ltd [2000] 2 Qd R 461 at [52] per Chesterman J. 140. Harris v James (1876) 45 LJ QB 545; Ross & Glendining Ltd v Hancock & Co [1929] NZLR 204; Sampson v Hodson-Pressinger [1981] 3 All ER 710 (CA). Cf Smith v Scott [1973] Ch 314; [1972] 3 All ER 645 (local authority not liable for allowing in house offensive and undesirable tenants whom it knew were likely to cause a nuisance). 141. McEwan v Mills (1865) 2 WW & a’B (L) 118; Sykes v Connolly (1895) 11 WN (NSW) 145; Hussain v Lancaster County Council [2000] QB 1; [1999] 4 All ER 125 (CA); cf Hilton v James Smith & Sons (Norwood) Ltd (1979) 251 EG 1063 (CA), in which a landlord was held liable in nuisance for its failure to enforce covenants in the lease whereby the plaintiff’s rights would not have been interfered with. 142. Lester-Travers v City of Frankston [1970] VR 2; Challen v McLeod Country Golf Club (2004) Aust Torts Reports 81-650 (Qld CA) (private nuisance caused by balls hit from golf course); De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498; Tetley v Chitty [1986] 1 All ER 663; R v Shorrock [1994] QB 279; [1993] 3 All ER 917 (CA); Lippiatt v South Gloucestershire Council [2000] QB 51; [1999] 4 All ER 149 (CA). Cf Hall v Beckenham Corporation [1949] 1 KB 716; 1 All ER 423 (defendants had no power to prevent activities of entrants to their park). 143. Spicer v Smee [1946] 1 All ER 489 at 493 per Atkinson J. 144. (1876) 1 QBD 321 at 326. 145. See, eg, Stoneman v Lyons (1975) 133 CLR 550 at 576; 8 ALR 173 at 193 per Mason J. 146. Dalton v Angus & Co (1881) 6 App Cas 740; Johns v Delaney (1890) 16 VLR 729. 147. Black v Christchurch Finance Co Ltd [1894] AC 48 (PC); McInnes v Wardle (1931) 45 CLR

548; and see Casley-Smith v FS Evans & Son Pty Ltd (No 5) (1988) 67 LGRA 108 at 153 per Olsson J (SASC). 148. Harris v Carnegie’s Pty Ltd [1917] VLR 95; Hounsome v Vancouver Power Co (1913) 9 DLR 823 (BCCA), aff’d (1914) 19 DLR 200 (SCC). 149. Torette House Pty Ltd v Berkman (1940) 62 CLR 637. See 26.20 for a general discussion of liability for acts of independent contractors. 150. [1940] AC 880 at 895-6; 3 All ER 349 at 359 (HL). 151. The pipe was in fact laid by others, so that the defendants’ liability depended upon their failure to remedy the situation: see 14.40ff. 152. Matheson v Northcote College Board of Governors [1975] 2 NZLR 106; so too, a local authority has been held liable for so constructing, or authorising the construction of, drainage works that effluent flowed onto the plaintiff’s land: Stewart v Enfield MC (1915) 15 SR (NSW) 204. 153. Butler v Standard Telephones & Cables Ltd [1940] 1 KB 399; 1 All ER 121; McCombe v Read [1955] 2 QB 429; 2 All ER 458; Peisley v Ashfield MC (1971) 21 LGRA 243, rev’d on other grounds 23 LGRA 166 (NSWCA); Barton v Chibber (1988) Aust Torts Reports 80-185 (Vic SC); however, no distinction is drawn, for the purpose of determining liability in nuisance, between the defendant who plants such trees and one who purchases property on which the trees are already growing: see fn 167 below. 154. Sedleigh-Denfield v O’Callaghan [1940] AC 880; 3 All ER 349 (HL). 155. Ilford Urban Council v Beal [1925] 1 KB 671; and see Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 at 300; 1 All ER 53 at 71-2 per Lord Goff (HL); cf Radstock Cooperative & Industrial Socy Ltd v Norton-Radstock UDC [1968] Ch 605; 2 All ER 59 (CA). 156. Goldman v Hargrave [1967] 1 AC 645; [1966] 2 All ER 989 (PC); Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; 1 All ER 17 (CA). 157. St Anne’s Well Brewery Co v Roberts (1928) 140 LT 1 (CA); Wilkins v Leighton [1932] 2 Ch 106; Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 904-5; 3 All ER 349 at 365 per Lord Wright; and see Stephenson v Ku-ring-gai MC (1953) 19 LGR (NSW) 137 at 140 per McLelland J. 158. Cushing v Peter Walker & Son Ltd [1941] 2 All ER 693; Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 (PC); Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; 24 ALR 97 (although this last decision was concerned with public, rather than private, nuisance the same principles were regarded as applicable); Smith v Littlewoods Organisation Ltd [1987] AC 241; 1 All ER 710 (HL). A landlord may still be liable, even in the absence of means of knowledge, if the dangerous state of the property arose through a want of care: see 14.42. 159. Leakey v National Trust [1980] QB 485 at 522; 1 All ER 17 at 33 per Megaw LJ; for an example of such a situation from the field of public nuisance, see British Road Services Ltd v Slater [1964] 1 All ER 816. 160. [1924] 1 KB 341 at 357. 161. [1940] AC 880; 3 All ER 349. 162. [1967] 1 AC 645 at 656-7; [1966] 3 All ER 989 at 992. 163. [1980] QB 485 at 514-15; 1 All ER 17 at 25-6. 164. [2000] QB 836; 2 All ER 705 (CA). In both Bankstown City Council v Alambo Holdings Pty Ltd (2005) 223 CLR 660; 221 ALR 1 and Marcic v Thames Water Utilities Ltd [2004] 2 AC 42; 1

All ER 135, liability in nuisance for a failure to remedy problems from flooding was found to be negatived by legislation under which the respective public authorities operated. 165. See also Sparke v Osborne (1908) 7 CLR 51 (prickly pear growing on defendant’s property and spreading to plaintiff’s); Pontardawe Rural Council v Moore-Gwyn [1929] 1 Ch 656 (rocks falling onto plaintiff’s property) in both of which liability was denied but each of which can be justified on the basis of the intolerable burden prevention would have placed on the particular defendants; see further 14.28. 166. As occurred in Solloway v Hampshire County Council (1981) 76 LGR 449 (CA). 167. Davey v Harrow Corporation [1958] 1 QB 60; [1957] 2 All ER 305 (CA); Morgan v Khyatt [1964] NZLR 666 (PC), as explained in Leakey v National Trust [1980] QB 485 at 522; 1 All ER 17 at 33 (CA); Young v Wheeler (1987) Aust Torts Reports 80-126; Richmond City Council v Scantelbury [1991] 2 VR 38; Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478; The Owners, Strata Plan No 13218 v Woollahra MC (2002) 121 LGERA 117 (NSWCA); Valherie v Strata Corp No 1841 Inc (2003) 86 SASR 245. 168. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 5, on which see Robson v Leischke (2008) 72 NSWLR 98. 169. Neighbourhood Dispute Resolution Act 2011 (Qld) Ch 3 Pt 5. 170. As has been seen (14.37), a landlord who authorises a tenant to commit a nuisance is personally liable. 171. Todd v Flight (1860) 9 CB (NS) 377; 142 ER 148; Gandy v Jubber (1865) 5 B & S 485; 122 ER 911; Bowen v Anderson [1894] 1 QB 164; St Anne’s Well Brewery Co v Roberts (1928) 140 LT 1 (CA); Brew Bros Ltd v Snax (Ross) Ltd [1970] 1 QB 612; 1 All ER 587 (CA). But the landlord is not liable if he or she has become the lessor by taking an assignment of the reversion, the condition was in existence prior to that assignment and there is no covenant by the tenant to repair: Williamson v Friend (1901) 1 SR (NSW) (Eq) 133 (FC). 172. Payne v Rogers (1794) 2 H Bl 350; 126 ER 590. 173. Wilchick v Marks [1934] 2 KB 56; Heap v Ind Coope & Allsopp Ltd [1940] 2 KB 476; 3 All ER 634 (CA); Spicer v Smee [1946] 1 All ER 489. 174. Mint v Good [1951] 1 KB 517; [1950] 2 All ER 1159 (CA); Carter v Murray [1981] 2 NSWLR 77. 175. Wilchick v Marks [1934] 2 KB 56. 176. St Anne’s Well Brewery Co v Roberts (1928) 140 LT 1 (CA). 177. [1940] 1 KB 229; [1939] 4 All ER 241 (CA). 178. See esp Salmond and Heuston on Torts, 21st ed, 1996, pp 66-7. 179. Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549 at 556; 24 ALR 97 at 102 per Gibbs ACJ; the other members of the majority in that case, Stephen and Aickin JJ, did not consider it appropriate to comment on the continued applicability, or otherwise, of the decision. 180. [1940] 1 KB 229 at 248-9; [1939] 4 All ER 241 at 254; see also Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549 at 556; 24 ALR 97 at 102-3 per Gibbs ACJ. 181. Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR at 560-1; 24 ALR at 106 per Stephen J, with whom Aickin J concurred. 182. Southport Corporation v Esso Petroleum Co Ltd [1953] 2 All ER 1204 at 1207-8 per Devlin J;

Hargrave v Goldman (1963) 110 CLR 40 at 60 per Windeyer J. 183. Bird v O’Neill [1960] AC 907; 3 All ER 254 (PC); Ross (Sid) Agency Pty Ltd v Actors & Announcers Equity Assn [1971] 1 NSWLR 760 at 767 per Mason JA (CA); Hubbard v Pitt [1976] QB 142; [1975] 1 All ER 1056 (CA); Dollar Sweets Pty Ltd v Federated Confectioners Assn [1986] VR 383 at 390 per Murphy J; News Group Newspapers Ltd v SOGAT (82) [1987] ICR 181 at 202-3 per Stuart-Smith J. 184. Motherwell v Motherwell (1976) 73 DLR (3d) 62 (Alta App Div); Stoakes v Brydges [1958] QWN 5; see also (1993) 67 ALJ 469, in which it is noted that telephone harassment and besetting of public figures have not infrequently been enjoined by the New South Wales Supreme Court as constituting a nuisance. 185. Wu v Body Corporate 366611 [2011] 2 NZLR 837 at [29]-[34] per Asher J. 186. BP Oil New Zealand Ltd v Ports of Auckland Ltd [2004] 2 NZLR 208 at [80]-[86] per Rodney Hansen J, rejecting the views to the contrary expressed by Mahon J in Paxhaven Holdings Ltd v A-G [1974] 2 NZLR 185 and Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729. 187. See Bradbrook and Neave, Easements and Restrictive Covenants in Australia, 2nd ed, 2000, Ch 11. 188. Land Transfer Act 1952 (NZ) s 64. 189. The Latin maxim is that the user must be ‘nec vi, nec clam nec precario’. No doubt, an easement lawfully acquired by any other method of prescription, such as a lost modern grant, will also be a defence. 190. Liverpool Corporation v H Coghill & Son [1918] 1 Ch 307. 191. Ibid at 314 per Eve J. 192. Sturges v Bridgman (1879) 11 Ch D 852 (CA). 193. Ibid. 194. Bliss v Hall (1838) 4 Bing NC 183; 132 ER 758; R v McMeikan (1869) 6 WW & a’B (L) 68; Miller v Jackson [1977] QB 966; 3 All ER 338 (CA) (no defence to cricket club that the ground first became a nuisance only when the plaintiff built close to it). 195. As has been discussed in 14.31 the suitability of the use made of the land by the plaintiff is one factor in determining whether the act of the defendant was, in all the circumstances, reasonable. 196. Elliotson v Feetham (1835) 2 Bing NC 134; 132 ER 53; Sturges v Bridgman (1879) 11 Ch D 852 (CA). 197. Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 487 per Hodgson J. 198. See Almeroth v Chivers & Sons Ltd [1948] 1 All ER 53 (CA), a case in public nuisance. 199. [1907] AC 476 (PC); Southwark London Borough Council v Mills [2001] 1 AC 1; [1999] 4 All ER 449; see also Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170 esp at 175-6. 200. Cf Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 (HL), in which the defence failed, because the defendant’s activities were not a necessary result of the carrying out of the parties’ agreement. 201. [1942] 1 KB 269; 2 All ER 216; see also Leakey v National Trust [1980] QB 485 at 515; 1 All ER 17 at 26 (CA) per Megaw LJ.

202. The legislation applies to actions in public nuisance based on negligent conduct: Mitchell v Tsiros (No 2) [1982] VR 301 at 303 per Brooking J; White v Humphries (1984) 1 MVR 426 at 429 per Burt CJ, with whom Wallace J concurred (WAFC); and see Trevett v Lee [1955] 1 All ER 406 at 412 per Evershed MR (CA). In McWhirter v Emerson-Elliott (No 2) [1962] WAR 162 at 165, Hale J said that he could see no good reason why the legislation should not apply to a claim based on private nuisance, and in Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 486, Hodgson J assumed that it was applicable, but not to the facts before him. 203. Kneebone, ‘Nuisance and the Defence of Statutory Authority’ (1986) 10 Adel LR 472; Kodilinye, ‘The Statutory Authority Defence in Nuisance Actions’ (1990) 19 Anglo-American Law Rev 72. 204. Nielsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354 at 369 per Isaacs J; Metropolitan Asylum District v Hill (1881) 6 App Cas 193; Southern Properties (WA) Pty Ltd v Department of Conservation & Land Management [2012] WASCA 79 at [121]-[124] per McLure P. 205. The defence succeeded in A-G v Lane Cove MC [1976] 2 NSWLR 1 and Symons Nominees Pty Ltd v Roads & Traffic Authority (NSW) (1996) 25 MVR 174 (NSWCA), but failed in Hansen v Burrum Shire Council [1953] St R Qd 178, Edwards v Blue Mountains City Council (1961) 78 WN (NSW) 864, Lester-Travers v City of Frankston [1970] VR 2 and Kempsey Shire Council v Lawrence (1996) Aust Torts Reports 81-375 (NSWCA). 206. [1981] AC 1001; 1 All ER 353 (HL). 207. Following Manchester Corporation v Farnworth [1930] AC 171 (HL). Allen’s case was adopted and applied in Nalder v Commr for Railways [1983] 1 Qd R 620 at 640-1 per Kneipp J. And see Hunter v Canary Wharf Ltd [1997] AC 655 at 668-9; [1996] 1 All ER 482 at 492-3 per Pill LJ (CA). 208. Thorpe v Brumfitt (1873) 8 Ch App 650; and see L’Estrange v Brisbane Gas Co [1928] St R Qd 180 at 187-8 per Blair CJ. 209. In Australia, the section is part of the inherited law in South Australia (How v Jones [1953] SASR 82) and in Western Australia, where it has been recommended for repeal (Law Reform Commission of Western Australia), United Kingdom Statutes in Force in Western Australia (1994); its terms have been substantially re-enacted in Supreme Court Civil Procedure Act 1932 (Tas) s 11(15), Supreme Court Act 1986 (Vic) s 48 and Civil Law (Wrongs) Act 2002 (ACT) s 170; the section is no longer in force in New South Wales (Imperial Acts Application Act 1969), Queensland (Imperial Acts Application Act 1984) or the Northern Territory (Law of Property Act 2000 Sch 4): see Abel Lemon & Co Pty Ltd v Baylin Pty Ltd (1985) 63 ALR 161 at 168-9 (PC). In New Zealand, the section was in force as part of the inherited law (New Zealand Forest Products Ltd v O’Sullivan [1974] 2 NZLR 80) but has now ceased to have effect there: Property Law Act 2007 (NZ) s 365(3)(a). 210. Filliter v Phippard (1847) 11 QB 347; 116 ER 506; Spicer v Smee [1946] 1 All ER 489; Johnson v BJW Property Developments Ltd [2002] 3 All ER 574; Civil Law (Wrongs) Act 2002 (ACT) s 170(3). 211. Hargrave v Goldman (1963) 110 CLR 40 at 58 per Windeyer J, aff’d [1967] 1 AC 645; [1966] 2 All ER 989 (PC). 212. How v Jones [1953] SASR 82 at 86 per Napier CJ (FC); Robert v Czycyerskyj [1961] WAR 175; Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530 at 538-9; 2 All ER 62 at 67-8 per MacKenna J. 213. In Mason’s case [1967] 2 QB at 543; 2 All ER at 70, MacKenna J thought it ‘deplorable’ that, in the case of damage by fire, liability should depend, either in England or the Antipodes, on what

was meant by a legislative drafter in Queen Anne’s day; see also Salmond and Heuston on Torts, 21st ed, 1996, p 324. 214. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 535; 120 ALR 42 at 50. 215. See Chapter 5. The similarity extends to the right, in appropriate circumstances, to recover exemplary damages: Commonwealth v Murray (1988) Aust Torts Reports 80-207 (NSWCA). 216. See Marquis of Granby v Bakewell UDC (1923) 87 JP 105 for a detailed calculation on this basis of the value of fish destroyed by pollution of a stream. 217. Moss v Christchurch RDC [1925] 2 KB 750; Owen v John L Norris Holdings Pty Ltd [1964] NSWR 1337. 218. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617; [1966] 2 All ER 709 (PC) (public nuisance); Kraemers v A-G (Tas) [1966] Tas SR 113 at 156 (private nuisance); and see Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 at 300-1; 1 All ER 53 at 71-2 per Lord Goff (HL); Hamilton v Papakura District Council [2002] 3 NZLR 308 at [46]-[48] (PC). 219. Fritz v Hobson (1880) 14 Ch D 542, but only to the extent to which the disturbance constitutes an actionable nuisance: Andreae v Selfridge & Co Ltd [1938] Ch 1; [1937] 3 All ER 255 (CA). 220. Grosvenor Hotel Co v Hamilton [1894] 2 QB 836 at 840 per Lindley LJ (CA); Evans v Finn (1904) 4 SR (NSW) 297; see 14.34 for the recovery of damages on account of personal injuries and other consequential loss. 221. Minter v Eacott (1952) 69 WN (NSW) 93 (FC); Taylor v Auto Trade Supply Ltd [1972] NZLR 102; Evans v Balog [1976] 1 NSWLR 36; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321; [2001] 4 All ER 737 (HL); cf Hosie v De Ferro (1984) 3 BPR 9418, in which the plaintiffs were held not to be entitled to the cost of restoration because there was no prospect of them carrying out that work. 222. Public Trustee v Hermann [1968] 3 NSWR 94; Jones v Shire of Perth [1971] WAR 56; Taylor (CR) (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784; Pantalone v Alaouie (1989) 18 NSWLR 119 at 136-8 per Giles J. 223. Cf the position with regard to an action for trespass to land, 5.4. 224. Maberley v Peabody & Co of London Ltd [1946] 2 All ER 192 at 194 per Stable J; see also Jones v Sydney MC (1880) 1 LR (NSW) (L) 315; Manson v Shire of Mattra (1881) 7 VLR (L) 364. 225. Under the local equivalents of Lord Cairns’ Act 1858 s 2; see fn 13 above. 226. Leeds Industrial Co-op Society v Slack [1924] AC 851 (HL); Travis v Vanderloos (1984) 54 LGRA 268. 227. Macievich v Anderson [1952] 4 DLR 507 (Man CA); see also Jones v Sydney MC (1880) 1 LR (NSW) (L) 315. 228. McKinnon Industries Ltd v Walker [1951] 3 DLR 577 (PC); Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135; [2006] 4 All ER 48 (CA). 229. Cooke v Forbes (1867) LR 5 Eq 166. 230. See generally Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 322-3 per AL Smith LJ (CA) but cf Dennis v Ministry of Defence [2003] EWHC 793 (QB) (defendant liable in nuisance by flying fighter jets low over plaintiff’s property; public interest demanded the Air Force base remain operational, and damages of £950,000 awarded).

231. L’Estrange v Brisbane Gas Co [1928] St R Qd 180 at 189 per Blair CJ; Field v SA Soccer Assn Inc [1953] SASR 224 at 232 per Napier CJ. 232. Ogus and Richardson,‘Economics and the Environment: A Study of Private Nuisance’ [1977] Camb LJ 284; and see Rotherham, ‘The Allocation of Remedies in Private Nuisance’ (1989) 4 Canta L Rev 185. 233. Munro v Southern Dairies Ltd [1955] VLR 332; Lester-Travers v City of Frankston [1970] VR 2; Kennaway v Thompson [1981] QB 88; [1980] 3 All ER 329 (CA); Watson v Croft Promosport Ltd [2009] 3 All ER 249 (CA); cf Miller v Jackson [1977] QB 966; 3 All ER 338 (CA) and Yorke Bros (Trading) Pty Ltd v Commr of Main Roads [1983] 1 NSWLR 391 and the comment on the last-mentioned case in Baxt and Kewley (eds), An Annual Survey of Australian Law 1983, 1984, pp 367-8; see also 14.22. 234. Stollmeyer v Petroleum Development Co Ltd [1918] AC 498 (PC); Spencer v Silva [1942] SASR 213. 235. Penruddock’s case (1598) 5 Co Rep 100b; 77 ER 210; Lemmon v Webb [1895] AC 1 (HL). 236. Young v Wheeler (1987) Aust Torts Reports 80-126 (NSWSC). 237. Lemmon v Webb [1895] AC 1 (HL); the severed portions must be returned to the land whence they originated, otherwise the abator will be liable in conversion: Mills v Brooker [1919] 1 KB 555. With the abolition in New South Wales of a right of action in nuisance for damage caused by encroaching trees (see 14.41) this form of abatement is no longer available in that state. 238. Lagan Navigation Co v Lambeg Bleaching, Dyeing & Finishing Co Ltd [1927] AC 226 at 244- 5 per Lord Atkinson (HL). 239. Baten’s case (1610) 9 Co Rep 53b; 77 ER 810; the Lagan Navigation Co case, above. 240. Young v Wheeler (1987) Aust Torts Reports 80-126 (NSWSC); Richmond City v Scantelbury [1991] 2 VR 38; but see Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 at 486-8 per Hodgson J (costs of abatement may be recovered if that is a reasonable step in mitigation of damages and does not involve trespass onto defendant’s land). 241. Morgan v Khyatt [1962] NZLR 791 at 796 per Cleary J (CA), aff’d [1964] NZLR 666 (PC). 242. Lawlor v Johnston [1905] VLR 714. 243. Neighbourhood Dispute Resolution Act 2011 (Qld) Chap 3 Pt 5. 244. Spencer, ‘Public Nuisance — A Critical Examination’ [1989] CLJ 55. 245. Stephen, Digest of the Criminal Law, 9th ed, 1950, art 235. 246. The offence of committing a public (or common) nuisance is provided for in: Criminal Code (Qld) s 300; Criminal Code Act 1924 (Tas) ss 140-1; Criminal Code (WA) s 207; Criminal Code (NT) s 154; Crimes Act 1961 (NZ) s 145; in the other jurisdictions, it remains an offence at common law: see, eg, R v Clifford [1980] 1 NSWLR 314 (CA). 247. A-G v PYA Quarries Ltd [1957] 2 QB 169 at 191; 1 All ER 894 at 908 per Denning LJ (CA). 248. There is an excellent review of the authorities in the judgment of Sholl J in Walsh v Ervin [1952] VLR 361; see also Benjamin v Storr (1874) LR 9 CP 400; Harper v Haden & Sons [1933] Ch 298 (CA). 249. For example, loss of custom (Lyons (J), Sons & Co v Gulliver [1914] 1 Ch 631) or depreciation in the value of land (Caledonian Rly Co v Walker’s Trustees (1882) 7 App Cas 259 (HL)). 250. Boyd v Great Northern Rly Co [1895] 2 IR 555; Walsh v Ervin [1952] VLR 361; Lynch v

Mudgee Shire Council (1981) 46 LGRA 204. 251. Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145. But was Veale J correct in holding that the plaintiff could recover even though he was unlawfully using the road as a garage for his car when it was damaged? 252. Trevett v Lee [1955] 1 All ER 406 at 409 per Lord Evershed MR (CA): ‘An obstruction is something which permanently or temporarily removes the whole or part of the highway from public use’; and see White v Humphries (1984) 1 MVR 426 (WA FC). 253. McFadzean v Construction, Forestry, Mining & Energy Union (2007) 20 VR 250 (CA) at [123][125]. 254. For example, Lyons (J), Sons & Co v Gulliver [1914] 1 Ch 631. 255. For example, Penny v Wimbledon UDC [1899] 2 QB 72. 256. Wandsworth London Borough Council v Railtrack plc [2002] QB 756 (CA). 257. Castle v St Augustine’s Links (1922) 38 TLR 615. 258. Similar principles apply if the defendant’s actions pollute or obstruct a public navigable river, rather than the highway: see, eg, Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218; [1955] 3 All ER 864 (HL); Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509; 1 All ER 1159 (HL); Yorke Bros (Trading) Pty Ltd v Commr of Main Roads [1983] 1 NSWLR 391. 259. Brodie v Singleton Shire Council (2001) 206 CLR 512; 180 ALR 145. 260. Ibid at [129] per Gaudron, McHugh and Gummow JJ; at [226] per Kirby J. 261. Barber v Penley [1893] 2 Ch 447; Lyons (J), Sons & Co v Gulliver [1914] 1 Ch 631; Taylor v City of Perth (1988) Aust Torts Reports 80-191 (WAFC); cf Silservice Pty Ltd v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 127. 262. Benjamin v Storr (1874) LR 9 CP 400. 263. But cf Paprzik v Tauranga District Council [1992] 3 NZLR 176 (allowing traders to set up street stalls not a sufficient obstruction to be a public nuisance); Deepcliffe Pty Ltd v Gold Coast City Council (2001) 118 LGERA 117 at [9]-[16] per McMurdo P (Qld CA) (parking restrictions on road outside plaintiff’s restaurant held not to hinder access thereto). 264. Campbell v Paddington Corporation [1911] 1 KB 869; and see Owen v O’Connor [1963] SR (NSW) 1051 (unlawful encroachment of building onto public road, blocking sunlight and view, held to be a public nuisance). 265. Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 at 541-3 per Ambrose J. 266. [1967] 1 AC 617; [1966] 2 All ER 709 (PC). 267. Cf Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 at 300-1; 1 All ER 53 at 71-2 per Lord Goff (defendant’s activities, having led to damage of a type which it could not reasonably have foreseen, would not have been liable in nuisance). 268. Sedleigh-Denfield v O’Callaghan [1940] AC 880; 3 All ER 349 (HL); Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549 at 553-4; 24 ALR 97 at 101 per Gibbs ACJ; cf Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 at 198-9; 2 All ER 561 at 572 per Denning LJ (CA). 269. Contra, Winfield (1940-1) 18 NYULQR 66 at 75: ‘Current English law would not take the distinction’, though he mentions Fuller and Saunders’ case (referred to in Cranbanck’s case

(1618) 2 Roll Rep 49; 81 ER 652) in which the defendant laid logs in an adjoining highway whereby the plaintiff’s cart was upset — held not a private nuisance, but nonetheless actionable in case. 270. Matt v Shoolbred (1875) LR 20 Eq 22. 271. Cf Bradford Corporation v Pickles [1895] AC 587 (HL); 14.24. 272. Lyon v Fishmongers Co (1876) 1 App Cas 662 (HL). 273. Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343 (CA); Walsh v Ervin [1952] VLR 361; see 14.6.

[page 497]

CHAPTER 15 Animals

15.1 It has been seen already that those in control of animals may be liable in negligence: see 7.62. They may also be liable in nuisance, for example, by keeping horses which unduly interfere with a neighbour’s comfort by reason of smell, noise etc.1 In New South Wales, South Australia and the Australian Capital Territory, statutory amendments to the law2 have the effect that the owner or other person in charge of an animal (other than a dog) is not under any other form of liability. However, in the other jurisdictions in Australia, and in New Zealand, the keeper of an animal may be strictly liable, at common law, for cattle-trespass, and (other than in New Zealand) for damage done by an animal known (or presumed) to be dangerous to mankind. Each of these heads of liability will be considered in turn. Further, in all jurisdictions other than Queensland, statutory liability is imposed, even in the absence of fault, on the owner or keeper of a dog. Discussion of that head of liability forms the concluding section of this chapter.

Cattle-trespass 15.2 This action has a very long history, being already well established in England by the fourteenth century.3 In the course of its development, it has variously been regarded as being based on the action in trespass,4 and as being an aspect of liability in nuisance.5 The action was also relied on by Blackburn J, in Rylands v Fletcher,6 as being cognate to the principle that was developed in that case. But despite the affinity the action bears with these other forms of liability, it is distinct from each of them. Cattle-trespass is different from trespass, in that an owner of stock will be

liable for the former, even though there has been no intentional driving of the animals onto another’s land, or negligence in allowing them to stray there. If the owner has acted intentionally or negligently, liability is properly founded in trespass (see Chapter 5), and not in cattle-trespass. Cattle-trespass is distinct from nuisance, in that the plaintiff, in order to establish liability, need not show that the enjoyment of land has been substantially interfered with, nor need it be proved that the defendant’s actions were [page 498] unreasonable. And cattle-trespass differs from Rylands v Fletcher for such reasons as that there is no requirement that the land from which the stock escaped was being put to a ‘non-natural’ use, and that cattle-trespass is actionable per se. The nature of the liability in cattle-trespass may broadly be defined as follows: where cattle trespass on the land of the plaintiff, the person in possession of the cattle is liable for the consequences of that trespass, irrespective of whether he or she knew, or ought to have known, that the stock might stray onto the plaintiff’s land.

What comprises ‘cattle’ 15.3 The definition of cattle, for the purposes of this tort, extends to all manner of domesticated animals which are normally the object of ownership. It includes oxen, cows, sheep, goats, pigs and horses, as well as domesticated birds such as fowls, geese and ducks.7 The term does not, however, include dogs8 or cats,9 the reason apparently being that they are less easily kept in than the other species of animal, and are likely to do less damage should they escape.10 The tort does not encompass the straying of animals which are generally regarded as wild, such as circus animals, nor those, like the bee, which are not normally the object of ownership.11

Character of the act

15.4 The tort of cattle-trespass is committed, in general, when an animal escapes from the defendant’s land onto that of the plaintiff, and does damage there. But, just as trespass is committed even by placing any part of one’s body over the boundary of another’s land (see 5.3), so too cattle-trespass is regarded as sufficiently analogous to that tort as to render liable the owner of a horse which kicked the plaintiff’s horse through the fence dividing the parties’ properties.12 However, if the stock are being lawfully driven along the highway, and escape from there onto adjoining land, the person in control is not liable unless negligence can be proved. Thus, in Tillett v Ward,13 the owner of an ox which, while being driven along a town street, escaped into an ironmonger’s shop, was not liable for the damage done by the ox, because he was not found to have been negligent. The reason given for this exception from strict liability is that the owner of land abutting the highway is deemed to have assumed the ordinary risks incidental to the passage of lawful traffic.14 But the frontager is not regarded as having assumed any ordinary risks [page 499] incidental to the presence of stock not lawfully on the road, so that the owner of domestic animals which stray from that person’s property onto the road, and then trespass onto the plaintiff’s property, is strictly liable for any damage done thereby.15

Character of the conduct of the defendant 15.5 The fact that the defendant could not foresee that the stock would escape, or that all reasonable precautions were taken to prevent their escape, does not relieve one of liability in cattle-trespass.16 Liability is independent of proof of intentional or negligent conduct.

Who is liable?

15.6 The person liable is the one who is in control of the stock. This will not be the owner of the land from which they escape, if that person does not also have control of the stock, nor will it be the owner of the animals themselves, if he or she has given up possession of them (because, for instance, they are on agistment) at the time of the cattle-trespass.17

Who may sue? 15.7 The tort originated as one that was cognate to the action for trespass to land, and it still retains sufficient affinity with that action to limit the range of possible plaintiffs to those in occupation of the land on which the trespass occurs. Thus, a person who has agisted stock to another’s land is not able to sue for injury done to that stock by the trespassing animals of another.18 On the other hand, if the injury complained of is to crops growing on the land, the ability to sue depends on the plaintiff having an immediate right to possession of those crops.19 And, if the complaint is of personal injury, one who is acting for or on behalf of the occupier of the land apparently has title to sue.20

Damages 15.8 Cattle-trespass was initially intended to protect the interests of an occupier of land against invasion from others’ stock. Hence the damage recoverable was limited to loss in respect of the surface of the land and the depasturing of crops.21 In Western Australia and New Zealand, the occupier of the land trespassed upon [page 500] may, instead of claiming the actual damage suffered, impound the cattle and recover statutorily prescribed trespass rates.22 During the course of the nineteenth century, the range of recoverable damages was extended to include injury to animals in the possession of the plaintiff. Such injury might occur as a result of physical attack by the trespassing animal,23 the infection of the plaintiff’s flock,24 their insemination or even the likelihood of such

insemination having occurred.25 Underlying these extensions of liability was the notion that the defendant was liable for all the foreseeable risks attendant upon the trespassing of the animals. Hence the owner of stock has also been held liable, on a counter-claim, for the loss suffered by reason of the defendant’s train being derailed by the plaintiff’s cattle.26

15.9 Damages for personal injury are also recoverable in an action in cattletrespass.27 Despite the expression of some opinions to the contrary,28 the better view appears to be that such damages are recoverable only if the injury is of a kind that the trespassing animal is foreseeably likely to inflict.29 Thus, a plaintiff may recover if he or she is knocked down and trampled by a wandering cow,30 but not if bitten or gored by an animal not known by its owner to be dangerous. To allow recovery in the latter circumstance would be to impose a liability wider than in the scienter action discussed below.

Defences 15.10 It has already been mentioned in 15.2 that the action in cattletrespass was regarded by Blackburn J, in Rylands v Fletcher,31 as one of the progenitors of the action developed in that case. It is not, therefore, surprising that the defences that were available in Rylands v Fletcher are also available to cattle-trespass. Thus, a defendant may plead consent of the plaintiff,32 that the trespass resulted from the act of a third party for whom the defendant was not responsible,33 or from an act of God.34 It is also suggested that, in Australia if not in New Zealand,35 if the plaintiff has been contributorily negligent, the damages would be reduced under the apportionment [page 501] legislation.36 The defence of contributory negligence has been accepted in Canada, in relation to claims for personal injury resulting from cattletrespass,37 and there would appear to be no reason for denying its availability if the claim is for injury to land, crops or animals of the plaintiff, the trespass having been caused, in part, by the insufficiency of the plaintiff’s fencing. It

has been held that a complete defence to the action in cattle-trespass is that the plaintiff has been in breach of a duty to fence,38 but, prescription or agreement aside, there is no general duty to so fence one’s land as to keep the animals of others out.39 Nevertheless, the absence of a duty to fence out animals does not preclude the application of the apportionment legislation. That legislation is not premised on a breach of duty owed by the plaintiff to the defendant, but merely on the fact that the plaintiff has suffered loss partly as a result of his or her own fault. It has been remarked40 that there is no reason in principle for contributory negligence not being a good defence (by way of apportioning the damages) to a claim based on Rylands v Fletcher, and the same may be said for the equally strict liability imposed by the tort of cattle-trespass.

The Scienter Action 15.11 At common law, a person who keeps an animal which is either known, or presumed at law, to be dangerous may be liable, even in the absence of intention or negligence, for damage done, or injury inflicted, by the animal. It is because liability depends on the keeper’s knowledge (actual or presumed) of the vicious propensities of the animal that it is called the scienter action. It has already been mentioned that the action has been abolished by legislation in New South Wales, South Australia and the Australian Capital Territory; the action has also been abolished in New Zealand.41 In those jurisdictions, liability for the harm inflicted by animals depends only on negligence or nuisance. In the other jurisdictions, liability under the scienter action is additional to liability in negligence or nuisance. Furthermore, the liability of the keeper of a dog is, in most jurisdictions, subject to a special statutory regime, which is considered in 15.19-15.25. The scienter action, like cattle-trespass, was one of the actions referred to by Blackburn J in Rylands v Fletcher42 as forming the basis for the principle developed in that case. The scienter action, however, differs from Rylands v Fletcher in that, in the former: (1) no escape from the defendant’s land to other land need be proved; (2) personal injuries are almost exclusively43 the only type of harm for which recompense is sought; and (3) the use made by the defendant of his or her land — whether ‘natural’ or ‘non-natural’ — is irrelevant. The scienter action and cattle-trespass are mutually exclusive,

because the latter imposes liability only for [page 502] damage done by ‘tame’ animals, any vicious tendency of which is not known to their keeper.

Two classes of animal 15.12 For the purposes of this tort, animals are divided into two classes, those which belong to a species dangerous by nature, and those which belong to a class normally harmless. ‘Harmless’ animals are sometimes called ‘domestic’, ‘tame’ or ‘mansuetae naturae’. Although no importance is to be attached to the choice of epithet, it must be realised that the categorisation of animals in this manner is undertaken solely for the purpose of fixing liability under this tort. It would therefore be wrong to assume that because, for instance, kangaroos are normally ‘wild’ in the sense that they are not domesticated, they are outside the classification of ‘harmless’ animals in this context. Whether an animal is ‘harmless’ is a question of law. It is determined by the court taking ‘judicial notice of the ordinary course of nature’, although the judge may be assisted in this task by having regard to oral evidence or works of reference as appropriate.44 Those which come within this category are of two kinds: some are regarded as harmless by their very nature, such as hares and kangaroos, while others are shown by long experience to be harmless, such as sheep, horses, goats, cats, camels and bees.45 It appears that, in relation to the latter kind, all that it is necessary to determine (if the particular species has not already been the subject of an authoritative statement) is that animals of that class have, in the jurisdiction in which the issue arises, been reduced to a state of subjection.46

15.13 If a species of animal is regarded as not being ‘harmless’ by reason of its exclusion from either of the above two kinds, it is classified as ‘dangerous by nature’. It must be emphasised that it is the species which is so categorised, and not the particular member thereof which has inflicted injury.

As Devlin J observed, in Behrens v Bertram Mills Circus Ltd,47 in which the issue was the liability of the keeper of a tame circus elephant for injuries inflicted on the plaintiffs: ‘The law ignores the world of difference between the wild elephant in the jungle and the trained elephant in the circus’. Species which have been classified as dangerous to mankind include, in addition to elephants, bears,48 zebras49 and dingoes.50 It has also been assumed that, for example, lions and tigers fall within this category.51 [page 503] Whether an animal not dangerous to persons, but likely to do considerable harm to property, such as the rabbit in Australia, could be classified as ‘dangerous’ is undecided, but the test commonly stated by the court is only whether the species is likely to cause injury to human beings.52 The importance of the distinction between ‘harmless’ and ‘dangerous’ animals is this: a defendant is liable for damage done by a ‘harmless’ animal only on proof of scienter, as discussed in 15.14, whereas that party is liable for damage done by a ‘dangerous’ animal without proof of scienter. This rule was first applied in Besozzi v Harris,53 although May v Burdett,54 decided 12 years earlier, where a monkey’s owner, who knew of its mischievous propensity, was held liable for injuries caused to the plaintiff in consequence of the monkey’s biting him, is normally treated as the leading case in this connection.

Scienter in the case of ‘harmless’ animals 15.14 To prove scienter, the plaintiff must establish: (i)

that the animal had previously committed, or attempted, an act showing that particular trait of viciousness now complained of; and

(ii)

that the defendant knew of the act or attempt.

It is not enough that an animal has exhibited fierceness in defending its keeper’s property,55 or that a young horse has a tendency to rush towards, but veer away from, people who approach it on foot,56 for in neither case would

the act suggest a propensity to be dangerous to mankind. Nor is the tendency of a horse to bite other horses evidence of a sufficient act for these purposes,57 if a person complains of being bitten — the viciousness displayed previously must be of that particular kind which is complained of in the present action. Knowledge of one previous attack is sufficient. It is ‘not necessary that [the animal] should run about, and show a disposition to snap at and bite everybody’.58 Nor is there any necessary relevance in the time that has elapsed between the previous act and the alleged tort. It may be as long, for example, as three years59 or, provided that the defendant has had sufficient opportunity to bring the animal under control, as short as 30 minutes.60 The fact that, on the previous occasion, the animal did not actually achieve its purpose of attacking a person does not prevent the attempt from being treated as evidence of scienter.61 [page 504] The onus is on the plaintiff to establish that there is some evidence of knowledge, or facts from which knowledge can be inferred, on the part of the defendant as to the animal’s vicious propensity.62 And it is actual knowledge which is required; it is not enough to prove that the defendant is negligent in not realising that the animal has this tendency.63 If the owner of the animal has left it in the charge of another, the knowledge of that other may be imputed to the owner, either as a matter of law (if the third party has had delegated to him or her the full custody of the animal)64 or, in other cases, as a matter of inference from all the facts of the case.65

Nature of the conduct of the defendant 15.15 Except where it is stated to the contrary, the rules of this tort which remain to be considered apply whether the damage is done by a ‘dangerous’ animal or by a ‘harmless’ one in respect of which scienter has been established. While it is not wrongful to keep such an animal, the tort is committed if the animal should cause injury or damage to the person or property of another. It had been suggested in England66 that liability ensues

only if the keeper of the animal fails to control it, or allows it to escape from confinement, but the New South Wales Court of Appeal in Higgins v William Inglis & Son Pty Ltd67 could see no warrant for such a restriction on liability. Hence, in that case, the plaintiff was held to be entitled to recover when injured by a bull that was confined in a pen at the defendant’s saleyards.68 The keeper incurs responsibility, although no intentional or negligent conduct on his or her part is established; one keeps an animal at one’s peril.69 This is graphically illustrated by the facts of Behrens v Bertram Mills Circus Ltd.70 A circus elephant owned by the defendants was being led past the booth occupied by the plaintiffs when a small dog ran out, barking and snapping at the elephant. It turned and chased the dog, knocking down the plaintiffs’ booth. The female plaintiff was seriously injured by falling parts of the booth. Although the elephant did not directly attack either of the plaintiffs, the defendants were held liable for the injuries. Despite the fact that the elephant had been highly trained, and was accepted by the court as being no more dangerous than a cow,71 she was of a species classified as ‘ferae naturae’, exposing the owner to the same liability as if she had been wild.72 Furthermore, [page 505] so strict is this liability that it is no defence that the unforeseeable act of a third party caused the harm.73

The character of the harm 15.16 The harm inflicted on the plaintiff must be direct and physical, that is, such as would constitute trespass if the act had been not that of an animal but that of a human being. Thus, the tort is different from nuisance in that, for example, the crowing of roosters could in no circumstances give rise to this form of liability. The harm done must be within the risk in respect of which the liability is imposed. In the case of a ‘harmless’ animal, in relation to which scienter has been established, the risk extends to those types of activities of the animal of

which the keeper has prior knowledge.74 In the case, however, of animals ferae naturae, the area of risk is plainly wider. The defendants in Behrens v Bertram Mills Circus Ltd75 were rightly held liable for the elephant’s trampling on the booth and thereby causing the plaintiff to be injured. One can also agree with the comment of Devlin J in that case that ‘if a person wakes up in the middle of the night and finds an escaping tiger on top of his bed and suffers a heart attack, it would be nothing to the point that the intentions of the tiger were quite amiable’.76 This would be within the range of foreseeable risk. On the other hand, to stumble and injure oneself through shock suffered on seeing one’s neighbour’s monkey on the boundary wall is an eventuality outside the risk, and one for which the monkey’s owner would not be liable.77

Who can be sued? 15.17 The person in control of the animal is held accountable for this tort; ownership is not required. Thus, the trainer of a horse has been held liable,78 although a person who merely tolerates the presence of an animal on his or her premises while not providing in any way for its upkeep is not regarded as its keeper.79 Similarly, it would appear, a native animal in a wilderness reserve is not regarded as being within the control (for these purposes) of the park authority.80 But the owner of an animal cannot avoid responsibility by handing over custody either to an employee or to an independent contractor; since the liability is strict, responsibility cannot be delegated to another.81 [page 506]

Defences 15.18 So strict is the liability in a scienter action that the only defences to it would appear to be: first, that the plaintiff voluntarily assumed the risk of injury by his or her actions; and, secondly, that the plaintiff was the cause of the misfortune. It has already been mentioned that act of a stranger is not, on modern authority, a valid ground of exculpation,82 and it has been doubted whether

act of God could be relied on.83 Furthermore the New South Wales Court of Appeal has concluded,84 albeit on the basis of equivocal authority, that contributory negligence was not a defence at common law to the scienter action, and hence that the apportionment legislation could not apply.85 Even the defence of voluntary assumption of risk is one that, here as elsewhere (see 10.19), is greatly circumscribed in its operation. Although it has been held to be applicable in an action brought by a zoo employee,86 in Dorman v Hoscroft,87 Cox J, in the Supreme Court of South Australia, stressed the point that the defence can only succeed if it is shown that the plaintiff willingly ran the risk of injury, with full knowledge of the nature of the risk. In that case, although the plaintiff was aware of the vicious propensities of the offending animal, she was not sufficiently cognisant thereof to be regarded as having assumed the risk of the attack which occurred. Similarly, the defence based on the lack of a causal link between the keeping of an animal and the injury inflicted — or, to put it another way, that the plaintiff brought the injury upon his or her own head — has been closely circumscribed in more recent decisions. While the stroking of one zebra, followed by a bite from another zebra nearby, was held to be within the ambit of this defence,88 that case has, more recently, been described as one in which the plaintiff had indulged in ‘gratuitous meddling’ and thus distinguishable from one in which the plaintiff patted an animal known to be dangerous, and was subsequently bitten by it.89 It is, nevertheless, doubtless still true to say that one who is injured as a result of teasing an animal will be regarded as the author of the misfortune, and unable to recover.90

Statutory Liability for Dogs 15.19 In Queensland, dogs are treated in the same way as other ‘harmless’ animals discussed in 15.11-15.18. The owner or keeper is liable for injury done by them if he or she is aware of their vicious propensity.91 However, in all other jurisdictions in Australia, as well as in New Zealand, there are special statutory provisions regulating [page 507]

the liability of the owner, or person in charge, of a dog for damage done by it.92 Although the wording of the legislation differs to some extent between the various jurisdictions, the general principles are relatively uniform.

Nature of liability 15.20 The statutory regime provides, in general terms, that the person in charge of a dog shall be liable for injury or damage done by it, without the necessity of providing knowledge of a previous mischievous propensity on the part of the dog, or want of care by the defendant.93 While the terms of the legislation might appear to impose absolute liability, it has been read as being subject to a limited number of defences, which are considered in 15.22ff. It might, at first sight, appear strange that although at least three jurisdictions — New South Wales, South Australia and the Australian Capital Territory — have abolished the common law rules relating to scienter, and have left liability for damage done by other animals to be governed by the principles of negligence, nuisance and trespass, those jurisdictions have maintained a very strict regime of liability for dogs. The reason propounded by the New South Wales Law Reform Commission94 (and doubtless accepted in the other two jurisdictions) is that dogs not only have the size and strength to inflict serious bodily injury, but also are generally privileged to roam freely. ‘No like privilege’, the commission observed, ‘is conceded to any other animal which is as likely as is a dog to inflict serious injury’. The person on whom the special liability is imposed is the one having control of the dog at the time of the injury. This result is achieved either by stating, in the relevant section, that responsibility lies with the ‘owner’, and then defining that word to include the person under whose control the dog is,95 or by direct provision that liability rests with either the ‘keeper’96 or the ‘person in apparent control’97 of the animal. It is to be assumed that, despite the variety of methods of expression, the same principles apply as in determining who might be sued in a scienter action: see 15.17.

Type of damage 15.21 In most of the cases brought under this legislation, the injury suffered by the plaintiff has been as the result of a direct physical attack by a

dog. In New South Wales,98 the statutory liability is couched in terms which appear to limit it to that [page 508] kind of injury, permitting recovery only for personal injury or death by wounding99 inflicted by the dog in the course of an attack, or damage to clothing similarly caused. And, in Tasmania and the Australian Capital Territory, statutory liability is also limited to injury or damage done to the person, to property or to domestic animals by the attack of a dog,100 while in Victoria the statutory liability is confined to death or injury caused by a dog attacking, biting, rushing at or chasing any person.101 However, in the other jurisdictions, the legislation is couched in terms of liability for any injury or damage caused (or done) by a dog. It has been held that the keeper is liable not only for such canine acts as are specified in the legislation referred to above, but also for any other injury which can be shown to be directly attributable to a dog. This includes the injury suffered by falling when stepping out of the way of an advancing dog, even if there is no direct contact by the dog with the plaintiff,102 and the damage done to a motor vehicle which collided with a dog which had rushed out into the street.103 It may be surmised that recovery would also be available under the legislation if a person were to suffer injury by falling over a supine dog although (as will be discussed below) the damages may be reduced on the grounds of contributory negligence.

Defences 15.22 The New South Wales legislative provisions are stated to be subject to the qualification that no liability is incurred if the canine attack took place on any land, vehicle or premises of which the dog’s owner is the occupier or on which the dog is ordinarily kept (so long as the victim was not lawfully on the property or vehicle), or if the attack was an immediate response to, and wholly induced by, the actions of someone other than the owner or of another animal.104 In the other jurisdictions, even though the legislation may not express any condition or qualification to the liability it imposes105

nevertheless, as the members of the High Court observed in Simpson v Bannerman,106 the very generality of the terms of the statutes ‘provokes attempts at restriction by implication’. By means of such a restrictive interpretation, together with some changes to the legislation, it is clear that the defendant may rely on the plaintiff’s contributory negligence, as well as on the latter’s voluntary assumption of the risk, or that the plaintiff was the author of the harm. There is, however, some doubt whether the fact that the plaintiff was trespassing on the defendant’s land at the time the injury was inflicted will provide a defence. [page 509]

Contributory negligence 15.23 It had been assumed, in those jurisdictions in which the legislation stated that the owner of a dog ‘shall be liable’, that the plaintiff’s contributory negligence will lead to a proportionate reduction in the damages payable.107 The same assumption has been made by the Full Court in Western Australia,108 but on the basis that the relevant Act at that time provided only that the owner ‘may be liable’.The issue has now been put beyond doubt, in all jurisdictions other than Tasmania, Victoria and the Northern Territory, by express legislative provision for the defence.109

Volenti; plaintiff the author of the harm 15.24 Despite the fact that there is no authority directly in point, there would seem to be little doubt that these defences are available in those jurisdictions which do not make specific provisions for them. In Wilkins v Manning,110 the Full Court in New South Wales expressed the opinion that the defences open in a scienter action (which include the two presently under consideration)111 might also be availed of in an action under the dogs legislation. And, in Simpson v Bannerman,112 the majority of the High Court was prepared to assume that a defence of provocation of the dog would be available. It has already been observed that the New South Wales legislation expressly excludes liability for injury done by a dog in immediate response to cruel or provocative acts by another, and in South Australia, Victoria and the

Australian Capital Territory the plaintiff’s provoking the dog is stated to be a defence.113

Plaintiff a trespasser on defendant’s land 15.25 The fact that the plaintiff suffered the injury while a lawful entrant on the defendant’s land does not affect in any way the latter’s liability114 The defendant is, similarly, still subject to the strict statutory liability if the plaintiff should commit no more than a technical trespass on the defendant’s property, such as by resting an arm on the latter’s fence,115 or waving an arm over the fence.116 Should, however, the plaintiff have entered the defendant’s land unlawfully — and thereby have committed more than a mere technical trespass — there is authority for saying that the defendant is thereby excused from liability under the legislation.117 In New South Wales, South Australia, Victoria and the Australian Capital Territory, [page 510] the legislation expressly provides that the plaintiff’s trespass is a defence.118 Apart from those legislative provisions, it may be questioned whether the plaintiff’s trespass still constitutes a defence in all circumstances to the statutory liability. In Trethowan v Capron,119 Adam J read the earlier cases as leading to the conclusion that the liability imposed by the legislation was subject to the qualification that it could not be availed of by a trespasser ‘where the circumstances are such that no liability [to a trespasser] would attach at common law’.That judgment was, of course, written at a time when an occupier’s occupancy duties to trespassers were minimal: see 7.37. With the acceptance by the High Court of the fact that occupancy duties, even towards trespassers, are no more than a particular application of the general duty of care owed to one’s ‘neighbour’ in the Atkinian sense (see 7.38), it would appear that, if the conclusion of Adam J were still to be accepted, the statutory liability for dogs extends to those persons whom the defendant would reasonably be able to foresee as not unlikely to trespass on his or her property. But it is also suggested that the burglar who is bitten by a watch-

dog would be no more entitled to compensation now than would have been the case in the nineteenth century.120 _______________ 1.

See, eg, Munro v Southern Dairies Ltd [1955] VLR 332 and generally 14.11.

2.

Animals Act 1977 (NSW); Civil Liability Act 1936 (SA) Pt 3; Civil Law (Wrongs) Act 2002 (ACT) ss 212-215.

3.

Williams, Liability for Animals, 1939, p 130ff.

4.

See the comment in Pollock on Torts, 15th ed, 1951, p 384.

5.

Tenant v Goldwin (1705) 2 Ld Raym 1089 at 1092; 92 ER 222 at 224 per Holt CJ.

6.

(1866) LR 1 Ex 265 at 280.

7.

Williams, fn 3 above, p 136. It has been suggested that, in Western Australia, domesticated camels are ‘cattle’ for these purposes (Nada Shah v Sleeman (1917) 19 WALR 119 at 120 per McMillan CJ), and the same would apparently apply to domesticated deer (Brady v Warren [1900] 2 IR 632 (CA)).

8.

Mason v Keeling (1699) 12 Mod 332 at 335; 88 ER 1359 at 1361 per Holt CJ; Jones v Linnett [1984] 1 Qd R 570 at 574 per Ryan J; cf Doyle v Vance (1880) 6 VLR (L) 87. In all jurisdictions other than Queensland, special statutory provision is made for liability in respect of dogs, on which see 15.19ff.

9.

Buckle v Holmes [1926] 2 KB 125 (CA).

10.

Cox v Burbidge (1863) 13 CB (NS) 430 at 440-1; 143 ER 171 at 175 per Willes J; Buckle v Holmes [1926] 2 KB 125 at 128-9 per Bankes LJ (CA).

11.

Cadman v Saskatchewan (1988) 51 DLR (4th) 52 (Sask QB); see also Williams, fn 3 above, pp 136-7, 147-9.

12.

Ellis v Loftus Iron Co (1874) LR 10 CP 10.

13.

(1882) 10 QBD 17; see also Bourchier v Mitchell (1891) 17 VLR 27; Rayner v Shearing [1926] SASR 313.

14.

Gaylor & Pope Ltd v B Davies & Son Ltd [1924] 2 KB 75.

15.

D’Agruima v Seymour (1951) 69 WN (NSW) 15.

16.

Lee v Riley (1865) 18 CB (NS) 722; 144 ER 629; Ellis v Loftus Iron Co (1874) LR 10 CP 10; Acker v Kerr (1973) 42 DLR (3d) 514 at 517-18.

17.

Broderick v Forbes (1912) 5 DLR 508 (NS SC); Alsop v Lidgerwood (1916) 22 Arg LR (CN) 13; Restatement, Torts (Second), sec 504, comments c, d and e.

18.

Edwards v Rawlins [1924] NZLR 333; see also Matheson v G Stuckey & Co Pty Ltd [1921] VLR 637 at 641 per Cussen J (FC).

19.

Wellaway v Courtier [1918] 1 KB 200.

20.

In Waugh v Montgomery (1882) 8 VLR (L) 290, the daughter of the occupier was held entitled to sue, on the basis that she was acting as her father’s agent. An employee of the occupier was assumed (obiter) to be entitled to sue in Bradley v Wallaces Ltd [1913] 3 KB 629 (CA), but the opposite assumption was made (also obiter) by Singleton LJ in Wormald v Cole [1954] 1 QB 614 at 631; 1 All ER 683 at 692 (CA), without reference to the earlier views.

21.

That measure may still express the plaintiff’s loss: see Gardiner v Metcalf [1994] 2 NZLR 8 (CA).

22.

Local Government (Miscellaneous Provisions) Act 1960 (WA) s 463; Impounding Act 1955 (NZ) s 27.

23.

Ellis v Loftus Iron Co (1874) LR 10 CP 10.

24.

Theyer v Prunell [1918] 2 KB 333.

25.

Corgill v Mervyn (1876) 2 NZ Jur (NS) SC 50; McLean v Brett (1919) 49 DLR 162 (Alta SC); Cousins v Greaves (1920) 54 DLR 650 (Sask CA); Weeks v Weeks (1977) 81 DLR (3d) 371 (PEI SC) (all cases of insemination); Halstead v Mathieson [1919] VLR 362 (such damage a possibility only).

26.

Cooper v Railway Executive [1953] 1 All ER 477.

27.

Waugh v Montgomery (1882) 8 VLR (L) 290.

28.

Wormald v Cole [1954] 1 QB 614 at 625; 1 All ER 683 at 688 per Lord Goddard CJ, at 633; 693 per Hodson LJ.

29.

Mark v Barkla [1935] NZLR 347; Cox v Burbidge (1863) 18 CB (NS) 430 at 436-7; 143 ER 171 at 173 per Erle CJ; Restatement, Torts (Second), sec 504, comment g.

30.

Which was what happened in Wormald v Cole [1954] 1 QB 614; 1 All ER 683.

31.

(1866) LR 1 Ex 265.

32.

Wellaway v Courtier [1918] 1 KB 200 at 203 per Lawrence J.

33.

McGibbon v McCurry (1909) 43 Ir LT 132.

34.

See Williams, fn 3 above, pp 184-5.

35.

The Impounding Act 1955 (NZ) s 26, places severe restrictions on the ability of a landholder to recover if the land is not enclosed by a sufficient fence; as to what constitutes such a fence, see Grainger v Rossendale Holdings Ltd [1989] 2 NZLR 389 at 394 (CA). The only equivalent legislation in Australia, the Cattle Trespass Fencing and Impounding Act 1882 (WA) s 22, was repealed by the Local Government Act 1960 (WA).

36.

For references to the legislation, see 10.15.

37.

Flett v Coulter (1903) 5 OLR 375; Halton v Morton (1921) 61 DLR 365 (Sask SC).

38.

Crow v Wood [1971] 1 QB 77; [1970] 3 All ER 425 (CA).

39.

See Jones v Price [1965] 2 QB 618; 2 All ER 625 (CA).

40.

See McWhirter v Emerson-Elliott (No 2) [1962] WAR 162 at 165 per Hale J; cf Acker v Kerr (1973) 42 DLR (3d) 514 at 519.

41.

For the Australian legislation, see fn 2 above; see also Animals Law Reform Act 1989 (NZ) s 4.

42.

(1866) LR 1 Ex 265 at 280.

43.

Manton v Brocklebank [1923] 2 KB 212 (CA) is one of the very few cases in which a scienter action has been brought for injury to another animal; the plaintiff failed, as he was unable to prove the necessary knowledge on the part of the defendant.

44.

McQuaker v Goddard [1940] 1 KB 687 at 700-1; 1 All ER 471 at 478-9 per Clauson LJ (CA).

45.

This proposition is an adaptation of the statement by Lord Esher MR in Filburn v The People’s Palace & Aquarium Co Ltd (1890) 59 LJ QB 471 at 472 (CA); the passage is condensed

somewhat in the report in 25 QBD 258 at 260. Animals added to the examples given by Lord Esher are kangaroos (Lake v Taggart (1978) 1 SR (WA) 89), goats (R v Drinkwater (1981) 27 SASR 396), camels (Nada Shah v Sleeman (1917) 19 WALR 119) and bees (Stormer v Ingram (1978) 21 SASR 93). 46.

Nada Shah v Sleeman (1917) 19 WALR 119 at 112 per McMillan CJ (FC) (camels); Stormer v Ingram (1978) 21 SASR 93 at 97-101 per Legoe J (bees); cf McQuaker v Goddard [1940] 1 KB 687; 1 All ER 471 (CA), in which the evidence disclosed not only that camels were everywhere domesticated but also that those in captivity in England were harmless.

47.

[1957] 2 QB 1 at 14; 1 All ER 583 at 588.

48.

Wyatt v Rosherville Gardens Co (1886) 2 TLR 282.

49.

Marlor v Ball (1900) 16 TLR 239.

50.

Fischer v Stuart (1979) 25 ALR 336 (NT SC).

51.

See Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 18-19; 1 All ER 583 at 590; Trethowan v Capron [1961] VR 460 at 462.

52.

See, eg, Buckle v Holmes [1926] 2 KB 125 at 129 per Bankes LJ (CA); McQuaker v Goddard [1940] 1 KB 687 at 695; 1 All ER 471 at 475 per Scott LJ (CA); but Scott LJ assumed that the keeper of an animal classified as ‘dangerous’ because of its propensity towards humans would also be strictly liable for property damage done by the animal.

53.

(1858) 1 F & F 92; 175 ER 640.

54.

(1846) 9 QB 101; 115 ER 1213.

55.

Sycamore v Ley [1932] All ER Rep 97 (CA).

56.

Fitzgerald v Cooke Bourne (Farms) Ltd [1964] 1 QB 249; [1963] 3 All ER 36 (CA), and see Eather v Jones (1975) 6 ALR 220 at 229 per Mason J (HCA).

57.

Glanville v Sutton & Co Ltd [1928] 1 KB 571; Restatement, Torts (Second) sec 509, comment i; contra Murphy J (diss) in Eather v Jones (1975) 6 ALR 220 at 233 although the point was not in issue, since the only incident relied on by the plaintiff was that the defendant’s horse had rushed at him while he was on foot.

58.

Charlwood v Greig (1851) 3 Car & Kir 46 at 48; 175 ER 457 at 458 per Cresswell J.

59.

Sarch v Blackburn (1830) 4 C & P 297; 172 ER 712.

60.

Parsons v King (1891) 8 TLR 114.

61.

Worth v Gilling (1866) LR 2 CP 1.

62.

Cruttendon v Brenock [1949] VLR 366; Newsam v Ladd [1972-3] Arg LR 1372 (ACTSC); and see Eather v Jones (1975) 6 ALR 220 (HCA).

63.

Although proof thereof may, in some circumstances, render the defendant liable in negligence: see, eg, Galea v Gillingham [1987] 2 Qd R 365 (FC).

64.

Baldwin v Casella (1872) LR 7 Ex 323; Scott v Edington (1888) 14 VLR 41.

65.

Rands v McNeil [1955] 1 QB 253; [1954] 3 All ER 593 (CA), relying on the statement by Lord Wright in Knott v London County Council [1934] 1 KB 126 at 138; [1933] All ER Rep 172 at 174 (CA); see now Animals Act 1971 (Eng) s 2.

66.

Appleby v Percy (1874) LR 9 CP 647; Cruttendon v Brenock [1949] VLR 366.

67.

[1978] 1 NSWLR 649 esp at 653.

68.

See also Dorman v Horscroft (1980) 24 SASR 154 at 159-60 per Cox J.

69.

Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 at 653.

70.

[1957] 2 QB 1; 1 All ER 583.

71.

Ibid at 14; 588 per Devlin J.

72.

Higgins’ case [1978] 1 NSWLR 649 illustrates the fact that the same principles apply to tame animals where scienter has been established.

73.

Baker v Snell [1908] 2 KB 825 (CA); Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 21-5; 1 All ER 583 at 592-4 per Devlin J. Contra Fleeming v Orr (1855) 2 Macq 14 (HL) a Scottish case in which Lord Cranworth specifically acknowledged (at 23-4) the identity of Scots and English law on this point.

74.

See, eg, Read v Edwards (1864) 17 CB (NS) 245; 144 ER 99.

75.

[1957] 2 QB 1; 1 All ER 583.

76.

Ibid at 17-18; 590.

77.

Brook v Cook (1961) 105 Sol Jo 684, 1094 (CA).

78.

Walker v Hall (1876) 40 JP 456.

79.

Smith v Great Eastern Rly Co (1866) LR 2 CP 4; North v Wood [1914] 1 KB 629; Knott v London County Council [1934] 1 KB 126 (CA).

80.

See Sturdy v R (1974) 47 DLR (3d) 71 (Fed Ct), in which a person attacked by a bear in Jasper National Park framed his action in negligence alone.

81.

Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 at 653 (CA).

82.

See fn 73 above.

83.

Nichols v Marsland (1875) LR 10 Ex 255 at 260.

84.

Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 at 654; the issue is no longer relevant in that state with the abolition of the scienter action by the Animals Act 1977 (NSW).

85.

See also Dorman v Horscroft (1980) 24 SASR 154 at 160 per Cox J.

86.

Sylvester v Chapman (1935) 79 Sol Jo 777.

87.

(1980) 24 SASR 154 at 158.

88.

Marlor v Ball (1900) 16 TLR 239.

89.

Dorman v Horscroft (1980) 24 SASR 154 at 159 per Cox J.

90.

See Lee v Walkers (1939) 162 LT 89.

91.

See, eg, Jones v Linnett [1984] 1 Qd R 570 at 574-5 per Ryan J. The Animal Management (Cats and Dogs) Act 2008 (Qld) s 94 imposes criminal liability on the owner or keeper of a dog which causes death or bodily harm to another person, but the Act does not regulate civil liability.

92.

Domestic Animals Act 2000 (ACT) s 55; Companion Animals Act 1998 (NSW) ss 25-28; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 32; Dog and Cat Management Act 1995 (SA) s 66; Dog Control Act 2000 (Tas) s 62; Domestic Animals Act 1994 (Vic) s 29; Dog Act 1976 (WA) s 46. Similar provisions are to be found in the Dog Control Act 1996 (NZ) s 63(1), but they apply only to damage done to other animals, as the Accident Compensation Act 2001 (NZ) covers personal injury: see 12.43. The English legislation on which the Australian provisions are based was confined to injury done to other animals.

93.

For a discussion of the nature of the liability imposed by the legislation, see Rokich v Gianoli (FC(WA), 4 March 1997, unreported); Aleksoski v State Rail Authority (NSW) (2000) 30 MVR 403 (NSWCA).

94.

Report on Civil Liability for Animals, NSW LRC 8, 1970, para 35.

95.

NSW ss 25(1) and 7(1); NZ ss 61(1) and 2. Tas ss 4 and 62 and WA s 46(2), (4) and (5) are more elaborate than the above, but to the same effect.

96.

SA s 66(1); ACT s 55(2).

97.

Vic s 29(3), (5) and (7); the owner, if not liable under these subsections, is liable under s 29(4), (6) or (8).

98.

Companion Animals Act 1998 ss 25(1), 26.

99.

The term has been expansively applied, and has been held to include a leg broken by being knocked down by a dog (Hardin v Ridges [1983] 2 NSWLR 586) and injuries suffered in seeking to escape from an attack: Eadie v Groombridge (1992) 16 MVR 263 (NSWCA); Zappia v Allsop (CA(NSW), 17 March 1994, unreported).

100. Tas s 62(1); ACT s 55(1). 101. Domestic Animals Act 1994 s 29(3)-(8). 102. Twentieth Century Blinds Pty Ltd v Howes [1974] 1 NSWLR 244 (CA); Keeffe v McLean-Carr (1993) Aust Torts Reports 81-224 (SASC). 103. Martignoni v Harris [1971] 2 NSWLR 102 (CA); Irving v Slevin (1982) 30 SASR 66. 104. Companion Animals Act 1998 s 25(2)(a) and (b). The provisions are more of an exemption from liability than a defence, but are considered here for convenience. 105. Especially this is the case in Western Australia; the remaining legislatures contain varying grounds of exculpation. 106. (1932) 47 CLR 378 at 383 per Gavan Duffy CJ, Dixon, Evatt and McTiernan JJ; see also Starke J at 385. 508 107. Chittenden v Hale [1933] NZLR 836 at 847 per Blair J; Christian v Johannesson [1956] NZLR 664 at 666 per Cooke J; Knowlson v Solomon [1969] NZLR 686 at 688 per McGregor J; Irving v Slevin (1982) 30 SASR 66 at 73 per Zelling J. It may be observed that in the earliest of the New Zealand cases, the basis of the assumption by Blair J was that contributory negligence is available in a scienter action, a proposition not accepted in Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 at 652 (CA); see 15.18. 108. Rigg v Alietti [1982] WAR 203 esp at 207 per Burt CJ. 109. ACT s 55(4)(b); NSW s 28; SA s 66(4); WA s 46(2). 110. (1897) 13 WN (NSW) 220. 111. See 15.18. 112. (1932) 47 CLR 378 at 383. 113. ACT s 55(4)(c); SA s 66(3)(a); Vic s 29(9)(a). 114. Posthuma v Campbell (1984) 37 SASR 321 (FC). 115. Simpson v Bannerman (1932) 47 CLR 378. 116. Rigg v Alietti [1982] WAR 203 (FC).

117. Wilkins v Manning (1897) 13 WN (NSW) 220 (FC); Trethowan v Capron [1961] VR 460. 118. NSW s 25(2)(a); SA s 66(3)(c); Vic s 29(9)(b); ACT s 55(4)(a). 119. [1961] VR 460 at 465. 120. On the rights of a person to keep a dog for the purpose of guarding and protecting property, see Deane v Clayton (1817) 7 Taunt 489 at 528; 129 ER 196 at 212 per Gibbs CJ, Trethowan v Capron [1961] VR 460 at 465-6 per Adam J.

[page 511]

CHAPTER 16 Violation of Interests Protected by Statute

16.1 The action with which this chapter is concerned is usually referred to as one for breach of statutory duty. That usage has not been followed here, because, as will be explained in 16.10, the emphasis lies on the rights of the plaintiff which are alleged to have been infringed, rather than the duty imposed on the defendant, which is alleged to have been breached. The tort, in some respects, is the most remarkable of all those considered in this book, in that its existence in any particular case relies exclusively on judicial implication from the words of a statute. There are some statutes which expressly provide that a person who suffers loss or damage by reason of another’s breach of provisions of that Act may recover the amount of the damage suffered in an action against the wrongdoer — notably the Australian Consumer Law and the Fair Trading Act 1986 (NZ).1 But such is not the case in relation to the action presently under discussion. In all the statutes to breaches of which the tort has been held to extend, the relevant parliament has imposed a duty on the defendant, but has given no indication whether a cause of action in tort is created. Despite this, the courts have freely read into such statutes the implication that an action in tort was also intended by the legislature. Many of the decided cases can, for the most part, be regarded as judicial decisions of policy whether breaches of certain provisions should be compensated for in damages. A further matter which renders this tort remarkable is that in many of the cases in which the action is brought, the parliament has expressly made the breach of the provision a crime. Although as a general rule the enforcement of the criminal law is a matter for the state,2

the plaintiff who successfully sues for breach of statutory duty is thereby, at least indirectly, enforcing the criminal law; the defendant, by engaging in criminal conduct, is obliged to pay a sum of money, not as a penalty to the state but as compensation to the plaintiff. In this respect, this tort bears some affinity with the action for public nuisance which, as already discussed in 14.54ff, is another instance of criminal conduct which also constitutes a tort. [page 512]

History3 16.2 The origins of this action are to be found in the Second Statute of Westminster (1285), which provided a remedy by means of an action on the case for one who suffered loss by reason of another’s neglect of statutory duties.4 However, it was not until the eighteenth century that there was any judicial consideration of the action in its modern form, the reason being that until then a person aggrieved by another’s failure to perform statutory obligations was normally granted, by the express words of the statute, an action in debt to recover the amount specified by parliament.5 In judgments delivered during the course of the eighteenth century, dicta are to be found supporting the proposition that, if a statute were passed (impliedly) for the protection or benefit of a person, he or she would have an action for the damage resulting from another’s breach of that statute.6 Despite the paucity of precedent, Pollock CB, delivering the judgment of the Exchequer Court in 1848 in Chamberlaine v Chester & Birkenhead Ry Co,7 had no doubt as to the ‘general rule’ that, where a statute prohibits the doing of an act, and the prohibition is ‘obviously [but impliedly] … for the protection of a particular party’, that person has a right of action at common law for the breach of that prohibition. And six years later the Court of King’s Bench had equally little difficulty, in Couch v Steel,8 in stating that the same general rule was applicable to a statute which imposed a positive obligation (rather than a prohibition) on the defendant which was impliedly enacted for the benefit of the plaintiff.

16.3 Since the right of action, in these two cases, was found only in an

implication drawn from the words of a statute, it is not surprising that, during the remainder of the nineteenth century, the development of this tort in England was subject to varying fortunes. Each case represented different judicial minds, interpreting differing statutory provisions in the light of widely divergent facts. On the one hand, the statutory obligations of public utility undertakings were generally seen as not giving a cause of action to one injured by their breach. In Atkinson v Newcastle & Gateshead Waterworks Co,9 the Court of Appeal emphatically rejected the proposition that the relevant legislation granted a right of action to the plaintiff, whose premises were destroyed by fire because of the defendant’s failure to maintain adequate water pressure at their fire plugs,10 and went so far as to cast doubt on the correctness of the decision in Couch v Steel. On the other hand, the statutory duties imposed on employers by industrial safety legislation were interpreted by the English Court of Appeal, in Groves v Lord Wimborne,11 as granting a right of action to an employee injured by a breach thereof, an interpretation which became so firmly [page 513] established as to be described as a presumption by Dixon J, in the High Court, in O’Connor v SP Bray Ltd.12

16.4 During the course of much of the twentieth century, the tort was largely confined to actions for personal injury by employees, relying on breaches of industrial safety legislation. However, since the 1970s, it has been subject to a number of radical changes throughout the common law world.

16.5 In New Zealand, the accident compensation scheme having abolished common law rights of action for personal injury there, the tort is now available to protect the plaintiff’s interests in matters other than bodily security (such as the protection of property or prevention of financial harm) and does not appear to have been availed of to any great degree.

16.6 In Australia, the most common field of application for the tort — by an employee for the employer’s breach of industrial safety legislation — has been either abolished or very severely limited by workers’ compensation

legislation. In South Australia, action is permitted at common law only when the employee’s injury arises from the use of a motor vehicle,13 while the Northern Territory has completely abolished the right to sue at common law in respect of injury or death arising out of the plaintiff’s employment.14 Furthermore, those employed by the Commonwealth, and seafarers on ships engaged in international and interstate trade, have only a limited right to sue their employer, and then only for the non-pecuniary harm suffered.15 Another, and quite different, means by which the ambit of this tort has been restricted in some jurisdictions in Australia is express statutory provision denying a private right of action to one harmed by a breach of the enactment. Such a provision was contained in the legislation relating to occupational health and safety not only in respect of employment by the Commonwealth but also in New South Wales, Victoria and the two mainland territories.16 These express legislative statements may be compared with the judicial attitude to occupational health and safety legislation in other jurisdictions: in Queensland, it had been held that the Workplace Health and Safety Act 1995 (Qld) s 28(1), and its legislative predecessor, created a civil cause of action;17 while in South Australia and Tasmania, it had been assumed that a breach of the Occupational Health, Safety and Welfare Act 1986 (SA) s 23 and regulations made under the Workplace Health and Safety Act 1995 (Tas) respectively conferred a right of action on an injured employee.18 The Workplace Relations Ministerial Council is in the process of seeking to bring [page 514] this diversity to an end. The council was responsible for drafting a model Work Health and Safety Bill which it was intended all legislatures around the country would enact. At the time of going to press, the legislatures in the Commonwealth, New South Wales, Queensland, South Australia, Tasmania and the two territories have enacted that measure,19 which commenced, in most cases on 1 January 2012 and in the case of South Australia and Tasmania on 1 January 2013. Section 267 provides that nothing in the primary legislation is to be construed as ‘conferring a right of action in civil proceedings in respect of a contravention of a provision’ of the legislation, although the section goes on to provide that a right of action may nevertheless arise from breaches of duties or obligations imposed under a

regulation. The model Bill has not been introduced in Victoria or Western Australia.

16.7 In Canada, the right of action for breach of statutory duty has been abrogated by judicial decision. In R v Saskatchewan Wheat Pool,20 the Supreme Court of Canada undertook a wide-ranging survey of the effect given by courts, both in England and the United States as well as in Canada, to the fact that the defendant had breached a statutory obligation. It observed that the separate right of action for breach of statutory duty requires a ‘fictitious hunt for legislative intent’ and an ‘inflexible application of the legislature’s criminal standard of conduct to a civil case’ and that the cases often display ‘jejune reasoning supporting [a] juristic invention’.21 The court concluded: (1) that the civil consequences of a breach of a statute should be subsumed within the law of negligence; (2) that the ‘notion of a nominate tort of statutory breach … should be rejected’; but (3) that proof of the breach of a legislative provision, causative of damage, might be evidence of negligence in the light of all the relevant factors.22 These conclusions, it will be observed, were stated in general terms, and did not admit of exceptions. It is therefore to be assumed that in Canada even industrial safety legislation (which, in Australia, is often presumed to confer a private right of action on the injured employee) no longer provides an injured worker with a cause of action against the employer additional to any which might be available in negligence.

16.8

It appears that in England the tort is now largely confined to compensating those who suffer personal injury as the result of the breach of a statute which was intended to protect a particular and limited class of person. While it is still available to employees who are injured in the course of their employment by their employers’ failure to adhere to industrial safety legislation, the House of Lords has, in a series of decisions over the last 30 years, denied its applicability in a variety of other circumstances. Thus, in Lonrho Ltd v Shell Petroleum Co Ltd (No 2),23 it was stressed that if the statute in question provides its own means for the enforcement of the obligations imposed thereunder, it is unlikely that parliament would have intended also to provide a private right of action to one suffering harm from the breach

[page 515] of those obligations.24 And, in R v Deputy Governor of Parkhurst Prison; Ex parte Hague,25 the point was made that a statute which sets up a regulatory framework for a particular sphere of activity, while in fact providing protection for those carrying on that activity, is passed for the benefit of society at large; it would therefore be difficult to argue that it might, by implication, allow for a private right of action for those within the regulated field. Subsequently, in X v Bedfordshire County Council,26 the House indicated that it would be rare to find social welfare legislation that impliedly provides a private right of action if it were not complied with. Such statutes generally provide so much administrative discretion that it would be difficult to spell out of their terms an obligation, the breach of which would sound in damages. A different, but no less effective, limitation on this right of action was noted by Lord Bridge in Pickering v Liverpool Daily Post & Echo Newspapers plc,27 that, at least in its modern guise, the action was confined to providing a means of compensation for personal injury, property damage and economic loss.

16.9 In the light of all these moves, from jurisdictions around the common law world, to limit the availability of this tort, it is not at all surprising that commentators have suggested its complete abolition, whether by the judiciary28 or by the legislature,29 although others take the opposite view and propound the merits of this tort.30

The Basis of the Action 16.10 The existence of a right of action in any particular case depends solely upon the interpretation of the legislative provision relied upon by the plaintiff. Because the very existence of the tort is so dependent upon the words of a particular enactment, it has been acknowledged31 that it is difficult, if not impossible, to formulate general principles as to the availability of an action. Two propositions may, however, be accepted as incontrovertible. First, the action depends, not upon the statute imposing a duty on the defendant but upon the legislative intent32 to protect a specified class of persons. Secondly, and following therefrom, the action may lie even

though the conduct of the defendant is neither intentional nor negligent. Once it is found that a statutory provision was intended to protect a class of person, it is necessary to show only that the defendant’s conduct was contrary to that legislative command or [page 516] proscription, without further classification of that conduct as intentional, negligent or accidental. It is because of this second proposition that the tort is considered in conjunction with other torts of ‘strict’ liability.

16.11 The proposition that the availability of the action depends upon the infringement of a right enacted impliedly for the protection of the plaintiff, or a limited class to which he or she belongs, is to be found in its earliest formulation by Holt CJ in Ashby v White,33 repeated in the course of the nineteenth century34 and emphasised again in more recent times. Thus Windeyer J, in Downs v Williams,35 quoted with approval the views of Lord Wright in London Passenger Transport Board v Upson36 that the ‘right has its origins in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff, his right to the performance by the defendant of the defendant’s statutory duty’. It is a consequence of these views, as Lord Wright and Windeyer J respectively made clear, that the action is to be distinguished from that in negligence;37 while that tort requires proof of the existence of a duty (and its breach), the one presently under consideration obliges the plaintiff to show that an interest of his or hers, for which protection is provided by statute, has been violated by the defendant’s conduct in breach of that statute.

16.12 While there is, then, no doubt that the basis of the action is the protection of an interest of the plaintiff, there is the utmost difficulty in determining when such an interest falls within the implications to be drawn from the words of a statute. The interests of an industrial worker in bodily security at the place of employment is one which has raised to the level of a presumption the interpretation of industrial safety legislation as affording the employee a private right of action for its breach.38 But the interest in bodily

security of one who uses the roads — whether as motorist or pedestrian — is regarded quite differently. Starting with the decision of the English Court of Appeal in Phillips v Britannia Hygienic Laundry Co,39 that regulations relating to the construction of motor vehicles did not provide the basis for an action, it has been held consistently since then (with one exception that has been rendered irrelevant by subsequent legislation)40 that the breach of legislation controlling road [page 517] traffic might be some evidence of negligence or of contributory negligence, but is not in itself a cause of action.41

16.13 Interests in property have, on occasion, been protected against violations of a statute. A mine-owner was able to recover damages against a neighbouring mine-owner who neglected his statutory duty to pump water from his mine,42 and the owner of a building was held entitled to recover for the neighbouring owner’s failure to comply with a local government ordinance relating to the protection of adjoining buildings during excavation work.43 But whether those interests are protected must depend upon the true construction of the statute relied on in each case. Hence, while the English Court of Appeal denied a right of action to one whose premises were burnt down due to the defendants’ failure to maintain adequate water pressure at their fire plugs,44 the Supreme Court of New Zealand was able to discern, in the legislation before it, an intention to protect the householder against a local authority’s breach of its obligation to maintain fire hydrants in effective working order.45

16.14 The plaintiff’s economic interests have suffered a similar fate, in being dependent for their protection upon the implications which a particular court is prepared to draw from the legislative words in issue. While protection for such interests was found to exist in relation to a ferry owner for breach of a statutory mandate as to the route of a railway line,46 for a local authority against its auditors,47 by landowners against a local authority for granting permits to build in a geologically unstable area,48 and has been upheld in England in favour of performers of musical or dramatic work,49 it

has been denied to the company which produces and distributes such work.50 Protection of economic interests was also denied to a bookmaker who complained of the failure of the proprietor of a greyhound stadium to provide the statutory amount of space for bookmakers.51 [page 518]

16.15 The three interests just considered are the ones which have most often come before the courts. Other interests of a less tangible nature have generally not been protected by this tort. Thus, the courts have denied a private right of action to a landowner who suffered loss of amenity by reason of a neighbour’s breach of town planning legislation,52 to a company which complained that one of its directors had failed to disclose his interest in a contract with the company53 and to an electricity supply authority for the alleged failure of a state-owned enterprise to act in a socially responsible manner.54

What the Plaintiff Must Prove 16.16 The preceding discussion will have made it clear that to predict the circumstances in which an action will lie for breach by the defendant of a statutory provision is far from easy. Nevertheless, it is possible to isolate a number of the factors which the courts have relied on, although none will be conclusive one way or the other.

An obligation (and not merely a power) on the defendant 16.17 A mandatory duty must be imposed on the defendant if the action is to lie. A directory duty and a fortiori a mere power are not sufficient. The action must not be confused with the action in negligence which sometimes lies for failure carefully to carry out statutory obligations.55

The statute must impose the burden on the

defendant 16.18 This issue has been raised most frequently in actions by employees (who have been injured by some act or omission of fellow employees) against their employers. Since the existence of a right of action depends entirely on the interpretation of the particular statute in question, the defendant will not be liable unless the legislation is couched in such terms as to impose liability on him or her. If the relevant statutory provision is expressed impersonally or in the passive voice, it is generally read as imposing the duty on the employer.56 But if the legislation in question states that a particular person is to undertake the duty which is alleged to have been [page 519] broken, it is normally only that person, and not the employer, who will be liable.57 However, even when a statute is cast in the latter form, the employer will be liable, at least in New South Wales, by virtue of the Law Reform (Vicarious Liability) Act 1983 (NSW) s 7.58 Once the statute has been interpreted to impose a duty on the employer, the general principle is clear. As the matter was put in Lochgelly Iron & Coal Co Ltd v M’Mullan,59 ‘the owner cannot relieve himself of his obligation by saying that he has appointed reasonably competent persons and that the breach is due to negligence on their part’. It would therefore be no defence to an employer of a worker injured by an unfenced machine that the foreman has failed to carry out the instructions to fence which the employer issued to the foreman. The rule is the same where the duty of the employer has been neglected by the independent contractor (see 26.3) of the employer.60 Other problems, however (discussed in 16.34), are raised when the defendant has delegated the duty to the plaintiff, who is injured as a result of his or her own failure to perform the delegated duty.

The statute protects the plaintiff ’s interest by way of a cause of action in tort

16.19 The fundamental issue is simply whether the Act intended to give a right of action in tort. Everything else is subordinate to that. The following considerations are no more than guides, deducible from decided cases, to the principles which the courts utilise in seeking that (unexpressed) legislative intention: they must not be elevated to the status of inflexible rules of law overriding the paramount question of the purpose of the statute. As Kitto J said, on one occasion:61 At the outset of every inquiry in this field it is important, in my opinion, to recognise … that the question whether a contravention of a statutory requirement … is actionable at the suit of a person injured thereby is one of statutory interpretation … The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute.

The state of the pre-existing law 16.20 Sometimes, the law of torts in force before the passing of the Act may be regarded as providing adequate compensation to victims in circumstances also covered by the statute, the object of the statute being to regulate certain activities in order to prevent the occurrence of that loss which the existing law of tort would redress. In such a case the statute will not usually be read as conferring an additional cause of action for damages. For instance, the ordinary law of negligence has been taken to afford adequate protection for the victims of road accidents. But the need [page 520] to reduce these accidents is so urgent that there is much legislation regulating road traffic. Nevertheless, the courts do not allow persons injured by motorists in breach of such statutory duties to sue in reliance on the relevant statute: they leave them to pursue their remedy in negligence, and regard the sanctions of the statute as limited to the imposition of the penalty there prescribed.62

16.21 But where a person is already under a common law duty of care to a particular class of people, and a statute imposes a higher standard of care, or a more specific obligation, the legislation may more readily be construed as creating a private right of action.63 Thus, in relation to industrial safety

legislation, the common law was not regarded as providing adequate means of compensation to an injured worker, leading to the ready acceptance of such legislation as providing a further right of action. In particular, in an action at common law — at least until the middle of the twentieth century — the worker was likely, in many cases, to be met with the defences of common employment and volenti non fit injuria: see 10.19. However, it was held in Groves v Lord Wimborne64 that the action for breach of statutory duty was not subject to these defences, thus enabling that action to permit the award of compensation to an injured worker in a greater number of cases: see 16.33.

16.22 A further example of the relevance of the pre-existing state of the common law is Anderson v MacKellar County Council,65 in which one reason for finding that a building ordinance created a private right of action was the analogous common law right in the same field.66 Conversely, the fact that the position at common law is far from clear is a reason against finding that a statute on the same subject matter confers a right of action on one injured by a breach thereof.67 And the fact that the pre-existing law provided only limited rights to those suffering injury on the highway was regarded as a sound reason for interpreting current statutory provisions as going no further.68 Alternatively, the court may refer, not to the state of the pre-existing common law but to the state of the statute law as it stood prior to the passage of the legislation in question, in order better to ascertain the presumed intention of parliament.69 [page 521]

Public and private rights 16.23 Despite the expression of views in the early years of the twentieth century70 that statutory duties owed to the public at large, being therefore regarded as of paramount importance, would be likely to be enforceable by a private right of action, there is now little doubt that if a duty is seen as being imposed for the benefit of the whole community, that fact is a strong pointer against it being interpreted as providing a private right of action. The emphasis has shifted so that these days, as Lord Rodger said, writing for the

United Kingdom Supreme Court, ‘one of the necessary preconditions of the existence of a private law cause of action is that the statutory duty in question was imposed for the protection of a limited class of the public.’71 Thus, in Rowan v Attorney-General,72 a statute which obliged the Crown to offer to the previous owner land which it had compulsorily acquired but which was no longer needed for public purposes was held to create a private right of action, since the legislation was clearly designed to protect the particular individual from whom the land had been acquired in the first place.73 But even if that is the case, an Act which is also seen as being for the benefit of the public is less likely to be construed as giving rise to this tort. Thus, legislation which provides general regulation of the prison system might fairly be regarded as protecting the particular and limited class comprising the inmates of prisons. But it has been held that the overriding purpose of that legislation is the protection and benefit of the public, and that as a consequence breach of its terms did not provide a private right of action.74 Similarly, social welfare legislation which sets out the duties of governmental authorities relating to the protection of children against abuse, or to the provision of their educational needs, might be considered to be enacted for the benefit of children generally, or a limited class of young people. But the House of Lords rejected the argument that this was sufficient from which to imply an action in tort.75 The statutes, in providing that protection, set up an administrative structure the terms of which were incompatible with a right to claim damages for a (possibly unwitting) breach of the obligations specified.76 And while legislation relating to the conduct of persons on licensed premises may appear to be solely or principally for [page 522] the protection of patrons therein, if the language employed is insufficiently precise its breach will not give rise to a private right of action.77

Alternative remedies provided by the statute 16.24 One of the most important points in these problems of statutory interpretation is the effect on the plaintiff’s claim of a provision in the statute

affording, in the event of a breach, some remedy other than one in tort. There can be no doubt that the task of the plaintiff is lighter where the statute on which reliance is placed does not provide any alternative remedy:78 at the same time, the plaintiff may succeed despite the availability of some other remedy under the statute. In a number of instances, the ‘alternative remedy’ to which reference is made in this context is the provision of an administrative or quasi-judicial machinery through which an aggrieved citizen can air a complaint. Thus, to an argument that failure to comply with town planning legislation could give rise to an action on the statute, it has been said that the statutory scheme providing for the lodging of objections and the hearing of appeals ‘constitutes the full extent of the legislative provision … for the protection of the private rights of … those liable to suffer a substantial detriment’ by reason of the breach.79 Similarly, the fact that the legislation in Victoria providing compensation for industrial injuries has set up an elaborate structure for the enforcement of such rights as are given to injured employees was a major reason for finding that no common law action was also intended.80 Further, statutes imposing duties relating to the provision of social welfare81 or the regulation of civil aviation,82 each having its own express provision for the review of decisions made thereunder, do not permit a private law action for failure to fulfil the obligations.83 Conversely, for a statute to impose an obligation on a specific person or body, but not expressly to provide any means of ensuring compliance with that obligation is a clear implication of a parliamentary intention to allow those injured by the non-fulfilment of the duty to pursue a private law remedy.84

16.25 In some cases in which the question of ‘alternative remedy’ is raised, the issue is the effect of the statute’s providing that a breach shall be punishable in summary proceedings by a fine or other penalty.85 But such an argument is misplaced, as it is clear that provision for such a penalty is in no way conclusive [page 523] against a remedy in tort.86 It may indeed be doubted whether there are many cases where the existence of the tort has turned on the statutory imposition of

a penalty. The cause of the confusion can be traced to Atkinson v Newcastle & Gateshead Waterworks Co87 which has been regarded as a leading case on the restrictive effect of the imposition of a penalty. But the principal ground of the decision in that case was that ‘the Act with which the courts have to deal is not an Act of public and general policy, but is rather in the nature of a private legislative bargain with a body of undertakers as to the manner in which they will keep up certain public works’.88 The court had, however, been pressed by counsel with what was supposed to represent the reasoning of the court in Couch v Steel89 that, wherever a new duty was created by statute imposing a penalty not payable to the person aggrieved, this indicated a legislative intention to afford a remedy in tort. The remarks of the English Court of Appeal in Atkinson’s case on the subject of penalties were directed to the task of disposing of this obvious fallacy and should not be read any more widely. In any case, industrial safety legislation imposes penalties for contraventions, but also gives rise to tortious liability;90 indeed, it would be fair to say that in the majority of successful actions in tort based on breach of statutory duty, a penalty is an alternative remedy.91

The harm suffered is within the risk 16.26 In order to recover under this tort, the plaintiff must also show that the injury which has been suffered is within the general class of risks which the statute was intended to protect. The leading case is Gorris v Scott.92 A statutory order required that those parts of a ship which were occupied by animals were to be divided into pens of a specified size by substantial divisions. The defendant violated this order in respect of a ship on which he was transporting sheep belonging to the plaintiff. This violation caused the plaintiff’s sheep to be washed overboard. The statute was regarded as being designed to prevent the spread of disease, not to prevent animals from being drowned; an action for breach of statutory duty therefore failed.

16.27 Both the High Court of Australia and the House of Lords have held that the statutory duty on an employer to fence every dangerous part of a machine is confined to the prevention of a worker coming into contact with moving parts of the machine and does not comprehend protecting either an employee or a visitor to the factory from injury caused by ejected or flying

pieces of the machine itself, [page 524] or of the material on which the machine is working.93 However, the decisions of the House of Lords adopting this construction have subsequently been criticised by the same tribunal.94 Both those decisions and that of the High Court have been interpreted restrictively so as to allow recovery, for breach of the same statutory obligation, when the unfenced dangerous part of a machine threw the employee’s hand against the material being worked on,95 and when the unfenced machine created a dangerous situation when operating normally.96

16.28 This problem of risk is the same as in negligence: in both torts the risk or hazard must be foreseeable or within the Act, but the exact way in which the accident occurs need not be and the courts inevitably have a wide discretion in deciding where to draw what cannot be a hard and fast line between the harm coming within or outside the risk contemplated by the statute. Hence, when a bogie was derailed by a stone that had been allowed to fall from the roof of a mine in breach of the defendants’ statutory duty, and the plaintiff was injured thereby, the House of Lords held that ‘where the object of the enactment is to promote safety there can be no implication that liability for a breach is limited to one which causes injury in a particular way’.97 Where, on the other hand, a regulation required the occupier of premises to take all reasonable precautions to prevent fire or explosion from goods stored on those premises, there was held to be no right of action for breach of that regulation, because it had not been established that the defendant knew, or ought to have known, that his conduct entailed a risk of fire.98

Plaintiff one of the persons protected by the statute 16.29 Breach of a statute may give rise to an action in tort, but not necessarily at the instance of the particular plaintiff, as Knapp v Railway Executive99 shows. The Brighton & Chichester Railways Act 1844 provided for the erection of gates at level crossings, and the general supervision and

maintenance thereof. The plaintiff had stopped his car slightly short of a level crossing governed by this Act because it was closed against road traffic. Somehow, the brake of the car was released; the car moved forward and struck the gate. The gate had not been maintained in accordance with the Act, so that it swung back and injured the driver of an oncoming train. It was held that the purpose of these provisions was to protect road users against danger from the railways only, and that an engine driver on the railway was thus not within the scope of the Act.100 [page 525] Similarly, industrial safety legislation is generally read as protecting only those who are normally and regularly employed at the premises to which the legislation applies101 and may not be available as the basis of an action to those on the premises for some other reason.102 It has also recently been held103 that where an employer is put in breach of a statutory duty by the conduct of an employee, the latter is excluded from the class of persons for whose benefit the duty was imposed: see further 16.34.

The conduct of the defendant was of such a character as to violate the statute 16.30 Whether a defendant is liable for a breach, even though the act or omission is neither intentional nor negligent, depends on the statute. Certainly, the liability is strict in many cases, especially under industrial safety legislation. For instance, non-negligent failure properly to maintain a lift in efficient working order has been held by the House of Lords to be an actionable breach of such a statute,104 as has a failure securely to fence ‘every hazardous part’ of machinery, even though compliance with the legislation would have rendered the machine unusable.105 If, on the other hand, the statute requires the defendant only to do what is ‘reasonably practicable’, the onus lies on that party to show that the obligation has been satisfied.106 It would serve no useful purpose to review all the cases on the interpretation of statutory provisions laying down standards of conduct: the point to note here is that one must always turn to the statute imposing the duty to discover

against what types of conduct on the part of the defendant the plaintiff will be protected by an action in tort. The decision in Lyver v State of Victoria107 may be cited by way of illustration. The Lifts and Cranes Act 1967 (Vic) s 14(10) prohibited a person from (inter alia) permitting the use of a crane that is not in proper working order. The plaintiff, while himself using one of the defendant’s cranes with the latter’s leave and licence, was injured when struck by a part thereof, by reason of its not being in safe working order. However, the defendant was held not to be liable. There was no evidence to show that the defendant’s employees knew of, or had reason to suspect, the unsafe condition of the crane. Hence neither they, nor the defendant, could have been [page 526] regarded as having permitted the use of the crane while it was not in proper working order.

Causation 16.31 As with other torts, heads of damage are recoverable only when the breach by the defendant ‘caused’ them. Moreover, as we have seen in 9.2, in many actions, especially those by workers for breach of safety requirements, success depends on proof that injury to the plaintiff has been so ‘caused’. In this tort ‘the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury’.108 Where an experienced mine deputy had, apparently, lit a naked flame while undertaking a pre-shift inspection of a coal mine, the resulting fatal explosion was held to have been caused by his actions and not by the defendant’s breach of its obligations adequately to ventilate the mine.109

Defences The relation between criminal and tortious liability

16.32 Breaches of particular statutory duties may give rise both to criminal and tortious proceedings. It must not, however, be assumed that the defences in each case are identical. For example, the defences available to the occupier of a factory in criminal proceedings have been held to be irrelevant in a civil action,110 and the defences open to mine-owners under the relevant statutory provisions have been held to be wider in criminal proceedings than in actions for breach of statutory duty.111

Voluntary assumption of risk 16.33 The defence of volenti non fit injuria is said to depend, in many circumstances, upon an agreement (express or implied) of the plaintiff with the defendant that the former will assume the risk of injury resulting from the defendant’s actions: see 10.19. But it may well be regarded as contrary to public policy for a person to contract out of a duty imposed by an Act of Parliament. If this is the case, voluntary assumption of risk would never be a defence to this action.112 Be that as it may, with regard to the most common field of application of this tort, the English Court of Appeal, in [page 527] Wheeler v New Merton Board Mills Ltd113 confirmed that volenti is not a defence to an action brought by a worker for breach by an employer of the latter’s statutory duty at least where the statute makes the employer liable whether or not the conduct was intentional or negligent. In Imperial Chemical Industries Ltd v Shatwell,114 the House of Lords approved the Wheeler case so far as employers’ statutory duties are concerned, but the comment was made that the defence of volenti ‘should be available where the employer was not himself in breach of a statutory duty and was not vicariously in breach of any statutory duty through the neglect of some person who was of superior rank to the plaintiff and whose commands the plaintiff was bound to obey’.115

Employer’s breach caused by employee’s conduct

16.34 In a series of decisions in England116 in which an employer had delegated to an employee the responsibility for the performance of a statutory duty, and the employee had failed to fulfil that responsibility and was injured as a result, it was held that the employer might still be found solely liable, if the statute had imposed the duty on the employer alone. However, this result, which was acknowledged as leading to possible absurdity,117 was ameliorated by allowing the employer to raise the defence that it had done everything it possibly could to prevent the breach of the statute. The reasoning in these English cases has been rejected by the High Court of Australia,118 as being based on an outmoded concept of purporting to find a sole or effective cause of an accident. In its place, a limitation on an employer’s liability has been put more squarely on the interpretation of the words of the statute in question by implying that the class of persons for whose benefit a statutory duty was imposed on an employer excludes those employees whose actions have put the employer in breach, where nothing done or omitted by the employer itself has contributed to the breach.119 Thus, in Millington v Wilkie,120 the respondent employer instructed the appellant employee not to climb a ladder, because it had not been secured. The employee nevertheless ascended the ladder which slipped, throwing him to the ground and resulting in his serious injury. The New South Wales Court of Appeal held that in these circumstances the regulations of which the employer was in breach by reason of the employee’s conduct did not provide the employee with a cause of action. [page 528]

16.35 If some conduct of the employer has contributed to the breach, the employer will still be able to rely on the defence of contributory negligence, where that is available: see 16.37. One particular circumstance where contributory negligence may be relevant is that in which the employer is a company and the breach occurs because of the conduct of an employee who is also the company’s managing director. In that case, the breach of the statute is by the company, through its officer, and not merely by the conduct of an employee. It cannot, therefore, be said that the employer company is without fault.121

Contributory negligence 16.36 Prior to the enactment of the apportionment legislation, the High Court held that contributory negligence was not available as a defence to this action, at least when the statutory obligation breached by the defendant related to industrial safety.122 However, the House of Lords subsequently adopted the opposite view,123 and in Piro v W Foster & Co Ltd124 the High Court felt obliged to defer to the English approach; it overruled its own previous decision and held that contributory negligence is a complete defence to the action. Shortly thereafter, the New South Wales Parliament largely abrogated the effect of Piro’s case, the Statutory Duties (Contributory Negligence) Act 1945 (NSW) providing that contributory negligence could not be pleaded as a defence to an action for personal injury arising from a breach of statutory duty.

16.37

When the apportionment legislation in New South Wales was enacted, it provided for the continued application of the 1945 Act,125 but both of those provisions were repealed by the Civil Liability Amendment (Personal Responsibility) Act 2002, with effect from 6 December 2002. Hence, in that state, as in all Australian jurisdictions other than the Australian Capital Territory, the apportionment legislation permits the defendant to seek a reduction of damages for the contributory negligence of the plaintiff.126 In the Australian Capital Territory, contributory negligence is not available as a defence to any action for breach of statutory duty.127 The principles of the defence are the same as those discussed in 10.3, subject to this exception. Industrial safety legislation aims to protect workers against acts of inattention; accordingly, a ‘risky act due to familiarity with the work or some inattention resulting from noise or strain’ is unlikely to constitute contributory negligence,128 although it might be sufficient negligence to make the employer vicariously liable to a third party negligently injured thereby. [page 529]

Act of third party

16.38 This is not a defence where the statute is interpreted as imposing a liability so strict that the defendant is responsible for such acts.129 As is the case with every other aspect of this tort, all depends upon the construction of the legislation in issue. _______________ 1.

These statutes are considered in Chapter 22.

2.

See, eg, Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 All ER 70 (HL).

3.

See generally Finn, ‘A Road Not Taken: The Boyce Plaintiff and Lord Cairns Act’ (1983) 57 ALJ 493 at 493–8.

4.

The relevant chapter of the statute is reproduced in Coke’s Institutes, Vol 2, p 486.

5.

See, eg, Comyns’s Digest, tit ‘Action upon Statute’ (F); tit ‘Debit’ (A.1.).

6.

The leading proponent of this action was Holt CJ: see Ashby v White (1703) 2 Ld Raym 938 at 954; 92 ER 126 at 136; Anon (1703) 6 Mod 45; 87 ER 808; for comments by other judges, see Rowning v Goodchild (1773) 2 W B1 906; 96 ER 536; Beckford v Hood (1798) 7 TR 620; 101 ER 1164.

7.

(1848) 1 Ex 870 at 877; 154 ER 371 at 374.

8.

(1854) 3 El & Bl 402 at 411; 118 ER 1193 at 1196.

9.

(1877) 2 Ex D 441.

10.

See also Pasmore v Oswaldtwistle UDC [1898] AC 387 (HL); Johnston v Consumers Gas Co [1898] AC 447 (PC).

11.

[1898] 2 QB 402.

12.

(1937) 56 CLR 464 at 478.

13.

Workers Rehabilitation and Compensation Act 1986 (SA) s 54.

14.

Workers Compensation and Rehabilitation Act 1986 (NT) s 52.

15.

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 44, 45; Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 54 and 55.

16.

Occupational Health and Safety Act 1991 (Cth) s 79(a); Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) s 118(a); Occupational Health and Safety Act 2000 (NSW) s 32(1)(a) (but note that s 32(2) preserves a right of action for breach of the regulations; see further Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 at [87]–[101] per McColl JA); Occupational Health and Safety Act 2004 (Vic) s 34(a); Work Safety Act 2008 (ACT) s 225(a); Workplace Health and Safety Act 2007 (NT) s 63.

17.

Schapiro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 (CA).

18.

Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 (FC) at [46] per Doyle CJ; AFA Airconditioning Pty Ltd v Mendrecki (2008) 101 SASR 381 at [97]–[98] per Layton J (FC); Allen v Western Metals Resources Ltd [2001] TASSC 19 at [15] per Blow J.

19.

See Work Health and Safety Act 2011 (Cth); Work Health and Safety Act 2011 (NSW); Work Health and Safety Act 2011 (Qld); Work Health and Safety Act 2012 (SA); Work Health and Safety Act 2012 (Tas); Work Health and Safety Act 2011 (ACT) and Work Health and Safety

(National Uniform Legislation) Act 2011 (NT). 20.

(1983) 143 DLR (3d) 9.

21.

Ibid at 22 per Dickson J, speaking for the court.

22.

Ibid at 25. The same court subsequently reaffirmed the correctness of the decision: see Holland v Saskatchewan (2008) 294 DLR (4th) 193.

23.

[1982] AC 173; [1981] 2 All ER 456.

24.

See especially at 185; 461 per Lord Diplock.

25.

[1992] 1 AC 58; [1991] 3 All ER 733; see also Cutler v Wandsworth Stadium Ltd [1949] AC 398; 1 All ER 544 (HL).

26.

[1995] 2 AC 633; 3 All ER 353. See also O’Rourke v Camden London Borough Council [1998] AC 188; [1997] 3 All ER 23 (HL) (legislative scheme providing housing assistance does not impliedly give rise to a private right of action for its breach).

27.

[1991] 2 AC 370 at 420; 1 All ER 622 at 632.

28.

Davis, ‘Farewell to the Action for Breach of Statutory Duty?’ in Mullany and Linden (eds), Torts Tomorrow: A Tribute to John Fleming, 1998, p 69; see also Stanton, Skidmore, Harris and Wright, Statutory Torts, 2003, para 2.042; and see Klar, ‘The Tort Liability of Public Authorities: The Canadian Experience’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, p 243 at 263, but cf Phillips JA in Gardiner v Victoria [1999] 2 VR 461 at [21].

29.

Farrell, ‘Statutes and Torts: Comparing the United States to Australia, Canada and England’ (2000) 36 Willamette Law Rev 865.

30.

Foster, ‘The Merits of the Civil Action for Breach of Statutory Duty’ (2011) 33 Syd L Rev 67.

31.

O’Connor v SP Bray Ltd (1937) 56 CLR 464 at 478 per Dixon J.

32.

On the meaning of the notion of legislative intent in this context, see the comments of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 458–60; 131 ALR 422 at 457–8.

33.

(1703) 2 Ld Raym 938 at 954; 92 ER 126 at 136.

34.

In England, see especially the judgments of Bramwell B in Atkinson v Newcastle & Gateshead Waterworks Co (1871) LR 6 Ex 404 (rev’d (1877) 2 Ex D 441) and Ross v Rugged-Price (1876) 1 Ex D 269; in Australia, see, eg, Clancy v Davis (1882) 3 LR (NSW) (L) 299 (FC); Howe v Harrick (1884) 5 LR (NSW) (L) 223 (FC).

35.

(1971) 126 CLR 61 at 74.

36.

[1949] AC 155 at 168; 1 All ER 60 at 67 (HL).

37.

See also Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 56 per Fullagar J.

38.

O’Connor v SP Bray Ltd (1937) 56 CLR 464, esp at 478 per Dixon J; one of the very few cases to place a restrictive interpretation on such legislation is the decision of the majority of the High Court in Downs v Williams (1971) 126 CLR 61, that the Factories, Shops and Industries Act 1962 (NSW) does not bind the Crown. However, that decision has been abrogated by the insertion of s 6A into the Act in 1983, and the principles upon which it was based have been criticised in Maguire v Simpson (1977) 139 CLR 362; 18 ALR 469 and Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254; 66 ALR 412.

39.

[1923] 2 KB 832.

40.

Monk v Warley [1935] 1 KB 75 (CA); Houston v Buchanan (1940) SC (HL) 17, in which it was held that the breach of a statutory provision prohibiting the use of a motor vehicle when the driver was not insured against third party risks gave a private right of action to an injured third party; the latter would now have a right of action under the express terms of the compulsory third party insurance legislation in all Australian jurisdictions other than the Northern Territory, which has abolished all common law rights of action for road accidents: see 12.34.

41.

See, eg, Tucker v McCann [1948] VLR 222 (FC); Abele v Grew (1965) 65 SR (NSW) 485 (FC); Sibley v Kais (1967) 118 CLR 424. Similarly, breach by a publican of a statutory obligation not to serve intoxicated persons does not confer a private right of action on one injured thereby: Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 at 102 (FC).

42.

Ross v Rugged-Price (1876) 1 Ex D 269.

43.

Anderson v MacKellar County Council (1968) 69 SR (NSW) 444 (CA); referred to without disapproval in Stoneman v Lyons (1975) 133 CLR 550 at 569; 8 ALR 173 at 188 per Stephen J; at 578; 195 per Mason J; accepted as correct in Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738 at 744 per McHugh JA (CA) and in Pantalone v Alaouie (1989) 18 NSWLR 119 at 131 per Giles J. The relevant legislation has subsequently been repealed: see New South Wales Law Reform Commission, The Right to Support from Adjoining Land, Report 84, 1997, 3.18–3.22.

44.

Atkinson v Newcastle & Gateshead Waterworks Co (1877) 2 Ex D 441.

45.

MacEachern v Pukekohe Borough [1965] NZLR 330; cf Capital & Counties plc v Hampshire County Council [1997] QB 1004 at 1050; 2 All ER 865 at 896 (CA).

46.

Chamberlaine v Chester & Birkenhead Ry Co (1848) 1 Ex 870; 154 ER 371.

47.

West Wiltshire District Council v Garland [1995] Ch 297; 2 All ER 17 (CA).

48.

Smaill v Buller District Council [1998] 1 NZLR 190.

49.

Rickless v United Artists Corp [1988] QB 40; [1987] 1 All ER 679 (CA); the Copyright Act 1968 (Cth) Pt XIA makes express provision for the protection of such performers.

50.

RCA Corp v Pollard [1983] Ch 135; [1982] 3 All ER 771 (CA).

51.

Cutler v Wandsworth Stadium Ltd [1949] AC 398; 1 All ER 544 (HL); see also Fenton v Scotty’s Car Sales Ltd [1968] NZLR 929 (breach of regulation requiring motor car to be certified as roadworthy does not give a right of action to a purchaser of the vehicle); Richardson v PittStanley [1995] QB 123; 1 All ER 460 (CA) (failure to comply with statutory obligation to insure against liability to employees regarded as affecting the injured plaintiff employee only in his economic interests and hence not to create a right of action in his favour).

52.

Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 74–6 per McInerney J; Attorney-General (NZ) v Birkenhead Borough Council [1968] NZLR 383 at 389 per Richmond J.

53.

Castlereagh Motels Ltd v Davies-Roe (1966) 67 SR (NSW) 279 (CA) (the current legislation equivalent to that considered by the court is the Corporations Act 2001 (Cth) s 191).

54.

Auckland Electric Power Board v Electricity Corporation of NZ Ltd [1993] 3 NZLR 53.

55.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459; 60 ALR 1 at 28 per Mason J. In Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 at [24]–[26] Brennan CJ suggested that an analogy could be drawn between the action presently under consideration and the liability of a public authority in negligence for failure to exercise a statutory power, but this view has not subsequently been followed: see, eg, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; see further 7.31ff.

56.

See, eg, Harrison v National Coal Board [1951] AC 639 at 658–9; 1 All ER 1102 at 1112 (HL) per Lord Porter; at 662–3; 1114–15 per Lord Normand; Progress & Properties Ltd v Craft (1976) 135 CLR 651 at 669–70; 12 ALR 59 at 74 per Jacobs J (with whom Stephen, Mason and Murphy JJ concurred); Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224; [2006] 4 All ER 395 at [16]–[17] per Lord Nicholls.

57.

Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 (construing reg 31 of the Navigation (Loading and Unloading) Regulations 1941 (Cth), which imposed on ‘the person in charge’ a criminal sanction for breach of a regulation); see now Marine Orders Pt 32 (Cargo Handling Equipment); Almeida v Universal Dye Works Pty Ltd (2000) 103 IR 433 (NSWCA); see also Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173 (building regulations held to be directed to the builder, not to the building owner).

58.

For a general discussion of vicarious liability, including that for breaches of statutory duty, see Chapter 26.

59.

[1934] AC 1 at 13 per Lord Warrington (HL).

60.

Hosking v De Havilland Aircraft Co Ltd [1949] 1 All ER 540; Braham v J Lyons & Co Ltd [1962] 3 All ER 281 (CA).

61.

Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405; to the same effect see also Cutler v Wandsworth Stadium Ltd [1949] AC 398 at 407; 1 All ER 544 at 548 per Lord Simonds (HL).

62.

Phillips v Britannia Hygienic Laundry Co [1923] 2 KB 832 (CA); Abela v Giew (1965) 65 SR (NSW) 485 (FC); see generally 16.12. Sometimes, as in Square v Model Farm Dairies (Bournemouth) Ltd [1939] 2 KB 365; 1 All ER 259 (CA), the court might decide that no tort was intended to be created because existing contractual remedies are regarded as adequate, while in Richardson v Pitt-Stanley [1995] QB 123; 1 All ER 460 (CA) the plaintiff’s common law remedies in tort were regarded as sufficient, even though they might turn out to be worthless.

63.

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424; 131 ALR 422 at 429–30. The court held in that case, however, that what is now the Fair Work Act 2009 (Cth) is not intended to provide a private right of action for breach of an award made under its terms. And see Maidment v Davis (2000) 77 SASR 167 (FC) at [77] (statute imposed no greater duty than that applicable at common law).

64.

[1898] 2 QB 402 (CA); see further 16.33.

65.

(1968) 69 SR (NSW) 444 at 448 per Jacobs JA (CA).

66.

See also Pask v Owen [1987] 2 Qd R 421 at 427 per Andrews CJ (FC) (common law duty of parents to guard against injury by their children to third parties assisted in the implication of a right of action for breach of a statute requiring similar control of children); JD Bell (Calool) Pty Ltd v Shortland County Council (1991) 74 LGRA 398 (NSW SC).

67.

Willis v Castelein [1993] 3 NZLR 103 at 113 per Williams J.

68.

Ali v City of Bradford Metropolitan District Council [2011] 3 All ER 348 (CA).

69.

See MacEachern v Pukekohe Borough [1965] NZLR 330, in which reference to previous statutory provisions assisted TA Gresson J to conclude in favour of the bestowal of a private right of action, and compare Martin v Australasian Coal & Shale Oil Employees’ Federation (1934) 34 SR (NSW) 593 (FC); Wentworth v Wiltshire County Council [1993] QB 654; 2 All ER 256 (CA), in both of which reference to the pre-existing state of the statute law led to the opposite conclusion.

70.

See, eg, Phillips v Britannia Hygienic Laundry Co [1923] 2 KB 832 at 841 per Atkin LJ (CA).

71.

Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934 at [40]; the precondition was not met on the facts of that case.

72.

[1997] 2 NZLR 559.

73.

See also Smaill v Buller District Council [1998] 1 NZLR 190 (legislation regulating building activities held to be for the benefit of property owners, and therefore as creating a private right of action in their favour) but cf Select 2000 Ltd v ENZA Ltd [2002] 2 NZLR 367 at [49]–[52] (CA) (legislation designed to protect the respondent only, but the alternative means of enforcement led to the conclusion that no private right of action had been intended).

74.

R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; [1991] 3 All ER 733 (HL).

75.

See M v Newham London Borough Council [1994] 2 WLR 554; 4 All ER 602 (CA), concerned with child protection legislation, and E v Dorset County Council [1994] 3 WLR 853; 4 All ER 640 (CA), dealing with education statutes, both affirmed on this issue in conjoined appeals sub nom X v Bedfordshire County Council [1995] 2 AC 633; 3 All ER 353 (HL); Phelps v Hillingdon London Borough Council [2001] 2 AC 619 at 652; [2000] 4 All ER 504 at 516 per Lord Slynn; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; 174 ALR 97 at [1183] per O’Loughlin J (the issue was not pursued on appeal: Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 at [11]); Ellis v Counties Manukau District Health Board [2007] 1 NZLR 196 at [198]–[207] per Potter J.

76.

See also Capital & Counties plc v Hampshire County Council [1997] QB 1004 at 1050; 2 All ER 865 at 896 (CA) (legislation relating to the supply of water for fire-fighting regarded as ‘in the nature of a general administrative function’ and not as intended to benefit any class of person short of the public as a whole).

77.

Soutter v P & O Resorts Pty Ltd [1999] 2 Qd R 106 at 112 per Pincus JA (CA).

78.

See the comments in Martin v Australasian Coal & Oil Shale Employees’ Federation (1934) 34 SR (NSW) 593 at 596 per Jordan CJ (FC) (referred to with approval in O’Connor v SP Bray Ltd (1937) 56 CLR 464 at 478 per Dixon J); Square v Model Farm Dairies (Bournemouth) Ltd [1939] 2 KB 365 at 375; 1 All ER 259 at 265–6 per Slesser LJ (CA).

79.

Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76 per McInerney J; see also Select 2000 Ltd v ENZA [2002] 2 NZLR 368 at [49]–[52] (CA).

80.

Gardiner v Victoria [1999] 2 VR 461 at [30] per Phillips JA (CA).

81.

Scott v Department of Social Security (2000) 65 ALD 79 at [19] per Beaumont and French JJ (Fed Ct, FC); Underdown v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 965 at [58]–[60] per McKerracher J (Fed Ct).

82.

Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (2009) 263 ALR 93 at [153]–[162] per McKerracher J (Fed Ct).

83.

Further illustrations of a denial of a private right of action on the same basis are Naysmith v Accident Compensation Corporation [2006] 1 NZLR 40 and Minister of Fisheries v Pranfield Holdings Ltd [2008] 3 NZLR 649 (CA).

84.

West Wiltshire District Council v Garland [1995] Ch 297; 2 All ER 17 (CA).

85.

See, eg, Cutler v Wandsworth Stadium Ltd [1949] AC 398 at 407; 1 All ER 544 at 548 per Lord Simonds (HL); Anderson v MacKellar County Council (1968) 69 SR (NSW) 444 at 448 per Jacobs JA (CA).

86.

Tassone v Metropolitan Water, Sewerage & Drainage Board [1971] 1 NSWLR 207 at 212–13

(CA). 87.

(1877) 2 Ex D 441(CA).

88.

Ibid at 448 per Lord Cairns LC.

89.

(1854) 3 E1 & B1 402; 118 ER 1193.

90.

O’Connor v S P Bray Ltd (1937) 56 CLR 464; see 16.3.

91.

But cf Soutter v P & O Resorts Pty Ltd [1999] 2 Qd R 106, where the modest amount of the penalty imposed by the legislation was held to be a reason against imposing liability in a quite considerable amount by way of a private right of action for breach of the provision.

92.

(1874) LR 9 Ex 125; see also Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 at 209–10 per Jordan CJ (FC) (industrial safety legislation relating to employees under 16 years of age held to be aimed at the general health of such persons and not the prevention of injury to them); Calveley v Chief Constable of Merseyside [1989] AC 1228; 1 All ER 1025 (HL) (police discipline regulations directed to maintenance of officer’s position during an investigation and not to protect the officer against financial harm).

93.

Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Nicholls v F Austin (Leyton) Ltd [1946] AC 493; 2 All ER 92 (HL); Close v Steel Co of Wales [1962] AC 367; [1961] 2 All ER 953.

94.

Sparrow v Fairey Aviation Co Ltd [1964] AC 1019 at 1033–4; [1962] 3 All ER 706 at 709–10 per Lord Reid, at 1046–8; 717–18 per Lord MacDermott; Callow (FE) (Engineers) Ltd v Johnson [1971] AC 335 at 343; [1970] 3 All ER 639 at 642 per Lord Hailsham.

95.

Wearing v Pirelli Ltd [1977] 1 All ER 339 (HL).

96.

Dairy Farmers Co-op Ltd v Azar (1990) 170 CLR 293; 95 ALR 1.

97.

Grant v National Coal Board [1956] AC 649 at 664; 1 All ER 682 at 689 per Lord Tucker; Donaghey v Boulton & Paul Ltd [1968] AC 1; [1967] 2 All ER 1014 (HL); Millard v Serck Tubes Ltd [1969] 1 All ER 598 (CA).

98.

McDonald v Girkaid Pty Ltd (2004) Aust Torts Reports 81-768 at [190]–[192] per McColl JA (NSWCA).

99.

[1949] 2 All ER 508 (CA); cf Lavender v Diamints Ltd [1949] 1 KB 585; 1 All ER 532 (CA).

100. See also Balfour v A-G [1991] 1 NZLR 519 at 527 (CA) (statute found to be for the benefit of school pupils, not of teachers such as the plaintiff); McFarlane v Wilkinson [1997] 2 Lloyd’s Rep 259 at 272 (CA); Maidment v Davis (2000) 77 SASR 167 at [80] (FC). 101. See, eg, Quilty v Bellambi Coal Co Pty Ltd (1966) 67 SR (NSW) 193 (CA); Massey-HarrisFerguson (Mfg) Ltd v Piper [1956] 2 QB 396; 2 All ER 722 (employee of independent contractor engaged by occupier within the ambit of protection). 102. Hartley v Mayoh & Co [1954] 1 QB 383; 1 All ER 375 (CA) (fireman attending premises in the course of his duties not protected). In Mummery v Irvings Pty Ltd (1956) 96 CLR 99, the High Court left open the question whether a lawful visitor to premises was within the protection contemplated by the statute (at 108 per Dixon CJ, Webb, Fullagar and Taylor JJ, at 125 per McTiernan J). 103. Millington v Wilkie (2005) 62 NSWLR 322 (CA). 104. Galashiels Gas Co v Millar [1949] AC 275; 1 All ER 319; see also Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 (CA). 105. Summers (John) & Son Ltd v Frost [1955] AC 740; 1 All ER 870 (HL); see also Wenck v Morris

Woollen Mills (Ipswich) Pty Ltd [1974] Qd R 142; Bouronicus v Nylex Corp Ltd [1975] VR 120; Fatur v IC Formwork Pty Ltd (2000) 155 FLR 70 (ACTSC); Texcrete Pty Ltd v Khavin [2003] NSWCA 337. 106. Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107; [1967] 3 All ER 187 (HL); Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 (CA); and see McDonald v Girkaid Pty Ltd (2004) Aust Torts Reports 81-768; 16.28. 107. [1983] 2 VR 475 (FC); see also Cooper v Railway Executive [1953] 1 All ER 477 (obligation to maintain a fence along a railway line limited to requiring the provision of such a fence as would prevent cattle from straying, not one strong enough to prevent cows from forcing their way through to get to their calves). 108. Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620; 1 All ER 615 at 618 per Lord Reid (HL); cf McGhee v National Coal Board [1972] 3 All ER 1008 (HL), 9.3 (an action in common law negligence); Lineker v Raleigh Industries Ltd [1980] ICR 83 (CA). 109. Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580; see also McWilliams v Sir William Arrol & Co Ltd [1962] 1 All ER 623 (HL). On the causative nature, for these purposes, of noncompliance with a statutory obligation to ensure that an employee is adequately trained for the task at hand, see Pfeiffer (John) Pty Ltd v Caney (1981) 148 CLR 218; 36 ALR 466; cf Leask Timber & Hardware Pty Ltd v Thorne (1961) 106 CLR 33. 110. Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397. 111. Yellard v Powell Duffryn Associated Collieries Ltd [1941] 1 KB 154; 1 All ER 278 (CA); cf Harrison v National Coal Board [1951] AC 639; 1 All ER 1102 (HL). 112. See the obiter comment of Lord Normand in Alford v National Coal Board [1952] 1 All ER 754 at 757 (HL). 113. [1933] 2 KB 669, relying on Groves v Lord Wimborne [1898] 2 QB 402 (CA) and approving Baddeley v Earl Granville (1887) 10 QBD 423; see also Donaldson v Stockton Coal Co (1895) 16 LR (NSW) L 69 (FC). 114. [1965] AC 656; [1964] 2 All ER 999. 115. Ibid at 687; 1013 per Lord Pearce. 116. Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414; Ross v Associated Portland Cement Manufacturers Ltd [1964] 2 All ER 452 (HL) and Boyle v Kodak Ltd [1969] 2 All ER 439. 117. Boyle v Kodak Ltd [1969] 2 All ER 439 at 440 per Lord Reid. 118. Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 at [39] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ, relying on March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 and the dissenting judgment of Dawson J in Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611; 75 ALR 1. 119. Millington v Wilkie (2005) 62 NSWLR 322 at [39] per Hodgson JA (CA), relying on the comments of Mason J in HC Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 at 443; 3 ALR 465 at 481. 120. (2005) 62 NSWLR 322. 121. Millington v Wilkie (2005) 62 NSWLR 322 at [44] per Hodgson JA (CA). 122. Bourke v Butterfield & Lewis Ltd (1926) 38 CLR 354. 123. Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722.

124. (1943) 68 CLR 313. 125. Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 7. 126. See Booksan Pty Ltd v Wehbe (2006) Aust Torts Reports 81-830 at [155]–[173] per Ipp JA (NSWCA). 127. Civil Law (Wrongs) Act 2002 (ACT) s 102(2). 128. Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 at 648; 1 All ER 403 at 410 per Lord Tucker (HL); to the same effect, see Davies v Adelaide Chemical & Fertilizer Co Ltd (1946) 74 CLR 541; Rigter v JC Taylor Constructions Pty Ltd (1974) 9 SASR 282 at 288 per Zelling J; cf Kakouris v Gibbs Burge & Co Pty Ltd [1970] VR 502 (FC), aff’d (1970) 44 ALJR 384 (HCA); Kondracuik v Jackson Morgan & Sons (1988) 47 SASR 280, stressing that there is no principle of law involved, the finding of contributory negligence still being a question of fact. 129. Cooper v Railway Executive [1953] 1 All ER 477 at 478 per Devlin J.

PART V Protection of Interests in Reputation Chapter 17

Defamation: Introduction

Chapter 18

Elements of Defamation

Chapter 19

Defamation: Defences and Remedies

[page 533]

CHAPTER 17 Defamation: Introduction

The Complexities of the Tort 17.1 Defamation is committed when the defendant communicates to a third person, usually by words, any matter which adversely affects the reputation of the plaintiff. It is a tort (or torts) which protects the interests in their reputation which everyone enjoys, and is not primarily concerned with the plaintiff’s wounded feelings. Hence, no tort is committed when insults are directed to the plaintiff alone. There must be communication to at least one other person, whose opinion of the plaintiff may thereby be lowered, of material that has the tendency of lowering the plaintiff’s reputation in the eyes of reasonable people.

17.2 Prior to the enactment of the uniform legislation in the Australian states and territories, defamation was either a generic term which included the two torts of libel and slander, or was the word used for the one tort. Since that legislation came into force, generally1 on 1 January 2006, there is now, throughout Australia and New Zealand, but the one tort of defamation.2

17.3 Defamation is a complex tort. It exists to protect a person’s reputation, an interest which is highly prized but intangible. But the range and variety of defences available (see Chapter 19) seek to balance that interest against that cornerstone of democracy, freedom of speech. And, at least in Australia and New Zealand, if the heart of a plaintiff’s complaint is injury to his or her reputation, the courts will not allow the balance that has been struck by the law of defamation to be upset by framing the action as one in negligence. The New Zealand Court of Appeal has, for instance, refused to find that special

relationship, which is the basis for the imposition of a duty of care, between a newspaper publisher and a person who (or whose goods) were referred to in a news item,3 and the High Court of Australia, in Sullivan v Moody,4 in the course of denying that a duty of care was owed to either appellant, remarked that: [page 534] … the core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis.5

On the other hand, both the House of Lords6 and the Supreme Court of Canada7 have been prepared to find a duty of care in at least some instances of the plaintiff’s reputation being harmed by statements made by the defendant.

17.4 The protection of a person’s privacy may often have been at the heart of a defamation action, and be the real reason for its being brought.8 In New Zealand, defamation no longer needs to act as a partial surrogate for the protection of privacy. The New Zealand Court of Appeal first recognised a tort of invasion of privacy in Hosking v Runting,9 under which the plaintiff is required to show the existence of facts in respect of which there is a reasonable expectation of privacy, and that publicity given to those private facts would be considered highly offensive to an objective reasonable person.10 The court also considered that anyone sued for commission of this tort might avoid liability by showing that the impugned publication was ‘justified by a legitimate public concern in the information’.11 This head of liability was confirmed by the Supreme Court of New Zealand, in Rogers v Television New Zealand Ltd,12 and the New Zealand Law Commission, in its report on Invasion of Privacy: Penalties and Remedies,13 recommended that the ‘tort of invasion of privacy recognised in Hosking v Runting be left to develop at common law’.14 The commission further recommended that any ‘recognition and development of a tort of intrusion into solitude, seclusion and private affairs should be left to the common law’.15

In England, although the House of Lords rejected an invitation to declare that there has been ‘a previously unknown tort of invasion of privacy’,16 it subsequently accepted17 that there is a right, based on the action for breach of confidence, to the protection of private information. In Canada, the legislatures in the four Provinces of [page 535] British Columbia,18 Manitoba,19 Newfoundland and Labrador20 and Saskatchewan21 have created a statutory tort of violation of a person’s privacy. Liability is imposed in very general terms, such as: ‘it is a tort, actionable without proof of damage, for a person, wilfully and without claim of right, to violate the privacy of another’.22 In Australia, however, no separate right of privacy has yet been developed, although the High Court has suggested that at least for an individual (as distinct from a company) the common law may well come to accept such a right,23 and in Giller v Procopets,24 the Court of Appeal in Victoria was prepared to award damages for a breach of confidence arising from the publication of private information about the plaintiff. The Australian Law Reform Commission undertook a review of Australian privacy laws which, while being principally concerned with the Privacy Act 1988 (Cth), also proposed the introduction of a statutory cause of action for a serious invasion of privacy.25 The New South Wales Law Reform Commission was invited to consider, among other matters, the desirability of introducing a statutory tort of privacy in that state. In its Report,26 it recommended that, as part of a uniform law initiative in Australia, New South Wales should amend the Civil Liability Act 2002 (NSW) to provide a cause of action for invasion of privacy. And the Victorian Law Reform Commission was requested to inquire into the use of surveillance in public places and its possible impact on privacy. That commission produced a report27 in which, among many other proposals, it recommended the introduction of two statutory causes of action in response to serious invasions of privacy, the first dealing with misuse of private information and the second with intrusions upon seclusion.28 At the time of going to press, none of these reports had been implemented.

17.5 Within Australia, the law of defamation was rendered difficult of

exposition by the lack of uniformity of the law among the states and territories. Fortunately, all the jurisdictions agreed, in 2005, on the adoption of legislation that will promote uniformity throughout the country. In the states, it is uniformly titled the Defamation Act 2005, in the Australian Capital Territory it is to be found in the Civil Law (Wrongs) Act 2002 Ch 9 and in the Northern Territory it is entitled the Defamation Act 2006.

17.6 This chapter is structured as follows. The historical development of liability for defamation, including the varying legislative responses to the common law in [page 536] Australia and New Zealand, is traced briefly in 17.7–17.12. The chapter concludes with a discussion of the effect which the Trade Practices Act 1974 (Cth) s 52, and the corresponding statutory provision in the Australian states and territories, and in New Zealand, has had upon the law: see 17.14–17.16. Chapter 18 is concerned with the elements required to establish a cause of action in defamation, and Chapter 19 considers the defences available.

Historical Development29 17.7 Until the early years of the sixteenth century, general jurisdiction over defamation was exercised by the ecclesiastical courts in England, but those courts might hear actions only for ‘spiritual’ damage, such as one being described as a heretic. At about that time, two developments occurred in England. The first was that the courts of common law began to accept an action on the case for slander, when the damage suffered was ‘temporal’, as distinct from the ‘spiritual’ damage remediable in the ecclesiastical courts. Since this action was one derived from case and not trespass, damage was the gist of the action. Hence, the plaintiff had generally to show some material loss, although damage was presumed to flow from some particular imputations, such as that the plaintiff had committed a crime. The second development to take place in the early years of the sixteenth century was the assumption by the Court of Star Chamber of a criminal jurisdiction in libel. One found guilty of that offence, as well as suffering the imposition of a fine,

might also be obliged to pay damages to the injured person. At that stage, the elements that went to constitute both libel and slander were essentially the same. In particular, libel could be committed either orally or in writing, and the same was true of the common law action for slander. On the abolition of the Court of Star Chamber in 1641, the courts of common law succeeded to its jurisdiction in actions in libel. Although the reasons are not clear,30 two results flowed from this transfer of jurisdiction which were to distinguish the tort of libel from the action in slander. First, libel was actionable per se, in that the plaintiff might succeed despite the failure to show material damage, whereas slander still required proof of damage, or its presumption in particular circumstances.31 Secondly, slander became confined to imputations made orally, while libel was committed when the insult had been committed to writing or made in other forms.32

17.8 During the course of the nineteenth century, attempts were made both in England and Australia to reform the law of defamation by legislation, those attempts having varying success in different jurisdictions. In 1843, a Select Committee of the House of Lords recommended, inter alia, the assimilation of slander and libel, so that in all cases the former should be actionable per se. This recommendation [page 537] was not acted on in England, which still maintains the distinction between the two torts. It was, however, adopted in 1847 by New South Wales33 (an area which then included the present states of Queensland and Victoria), but after the creation of the separate colony of Victoria, the legislature there in 1856 repealed the New South Wales law and replaced it with provisions which, while repeating much of the earlier statute, omitted the relevant section which had unified the two torts.34 Various other piecemeal reforms by legislation were, however, more successful both in England, the Australian colonies and New Zealand.35

17.9 In the latter years of the nineteenth century, Queensland and Tasmania embarked on a more wide-ranging reformation of the law by enacting codes which were intended to replace the common law. The Defamation Law of

Queensland was passed in 1889, and provided a legislative statement not only of what constitutes defamatory matter, but also the defences available. When the then colony codified its criminal law in 1899, much of the Defamation Law was repealed and re-enacted in Chapter 35 of the Criminal Code. However, the retention of s 9 of the Defamation Law ensured that the provisions of the Code applied both to civil and criminal proceedings.36 With the enactment of a new Criminal Code in 1995, the legislative code on defamation law was relocated in the Defamation Act 1889. That statute, as originally passed, provided a model for the Defamation Act 1895 (Tas), which was subsequently repealed and substantially re-enacted in the Defamation Act 1957.37 In 1902, Western Australia adopted a Criminal Code, based very closely on that of Queensland, and Chapter XXXV thereof, dealing with defamation, was in most material respects the same as the Queensland defamation law. However, Western Australia had no statutory provision equivalent to s 9 of the defamation law of Queensland. It was consequently held that the only provisions of the Criminal Code which were relevant to civil proceedings for defamation were those which specified what was ‘lawful’ (as distinct from those which protected or justified what would otherwise be a breach of the criminal law).38

17.10 During the course of the twentieth century further proposals for the reform of the law of defamation were put forward. New South Wales adopted a codified statement of the law in 1958, but this was found to be unsatisfactory. Following a report of that state’s Law Reform Commission in 1971,39 the Defamation Act 1974 (NSW) provided a partial codification of the law, principally with regard to defences. In 1975, a committee was established in New Zealand to inquire into and make recommendations on the law of defamation. The committee reported in 1977, and most of its proposals have been incorporated in the Defamation Act 1992 (NZ). However, that measure, like the New South Wales legislation, is concerned largely with defining defences, and making legislative provision with regard to remedies and procedure. [page 538] In 1979, the Australian Law Reform Commission issued a report on

defamation,40 which proposed a codification of the law applying throughout the country. That report was considered by the Standing Committee of Attorneys-General, with a view to its implementation, but the state law officers were unable to agree on the terms of a uniform law and the proposals lapsed. A further move towards uniformity, at least among some of the states, was the introduction of a largely identical Defamation Bill into the parliaments of New South Wales, Queensland and Victoria in 1991 and 1992, but these Bills also lapsed. In New South Wales, the Act of 1974 was amended in 1994, with respect to the relative functions of judge and jury and to the assessment of damages. In September 1995 the Law Reform Commission of that state proposed further reforms,41 but the Defamation Bill 1996, which would have implemented those reforms, was never passed into law. The Australian Capital Territory Legislative Assembly undertook some statutory reforms, relating particularly to the resolution of disputes without litigation, in the Defamation Act 2001, which also brought within one statute legislative provisions inherited from New South Wales. All of those provisions were subsequently re-enacted in the Civil Law (Wrongs) Act 2002 (ACT) Ch 9.

17.11 By 2005, the result of those convoluted paths of development were, in summary form, as follows: in Queensland and Tasmania, the tort of defamation had been codified, and the respective statutes provided the basis for determining the cause of action and the defences. In New South Wales and New Zealand, while the issue of what was defamatory was determined largely by common law principles, the defences to the action were governed almost exclusively by statute. In the remaining jurisdictions, the law, both as to liability and defences, was to be found in the common law, as supplemented by a variety of statutory provisions.

17.12 Such a state of affairs caused particular difficulty to the Fourth Estate. Since the latter years of last century, the defendant in a defamation action is likely to be the proprietor of a newspaper or television station which has national circulation or coverage. Since it is the publication of the imputation which gives rise to the cause of action, such a defendant was subject to liability according to the possibly differing laws of each of the states and territories, despite the fact that the article or program emanated from one place only. Difficulty in the application of the law also arose because the plaintiff must normally bring one action only,42 leaving to the

court the unenviable task of applying not only its own law, but also that of the sister states.

17.13

After considerable discussion, and a proposal from the Commonwealth Attorney-General’s Department to develop a draft Bill for a national defamation law,43 the states and territories, in late 2005 and early 2006, introduced legislation which is ‘designed to promote uniform laws of defamation in Australia’.44 This uniformity is achieved by the legislation reviving the common law and treating the pre-existing statute law as if it had never been enacted. The common law, as thus [page 539] revived, applies throughout Australia, except to the extent to which the uniform legislation either expressly or impliedly provides otherwise.45

Defamation and the Australian Consumer Law 17.14 The Australian Consumer Law provides: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’, while ss 232 and 236 respectively allow for the grant of an injunction to prevent a breach of, inter alia, this section and an award of damages to those suffering loss by its breach. As is explained in more detail in Chapter 22, the Australian Consumer Law was enacted by the Commonwealth Parliament as a Schedule to the Competition and Consumer Act 2010 (Cth). The Australian Consumer Law also applies as a law of each of the states and territories, by virtue of the respective Fair Trading Acts of each jurisdiction. The Fair Trading Act 1986 (NZ) makes similar provision for the prohibition of misleading or deceptive conduct in s 19, and provides for an award of damages for a breach of that section in s 43. The proscription contained in the Australian Consumer Law s 18 could provide a person with a right of action akin to that in defamation, but imposing liability beyond that which the common law has developed. For instance, false statements concerning a public figure who has recently died may well be likely to mislead the public as to his or her character, and be in

breach of the statute,46 but would not be actionable under the uniform legislation47 except in Tasmania.48 Or again, statements of opinion may be such as to lead members of the public into error, and thereby contravene the legislative provision,49 whereas in an action under the defamation legislation the defendant might have been able successfully to rely on the defence of honest opinion: see 19.13ff.

17.15

Such a development was regarded with disfavour by the Commonwealth Government when what is now the Australian Consumer Law s 18 was the Trade Practices Act 1974 (Cth) s 52.50 As a consequence, s 65A was inserted into the Trade Practices Act in 198451 and similar provisions52 are now to be found in ss 19 and 38 of the Australian Consumer Law. Section 19 restricts the circumstances in which s 18 might be used in respect of defamatory imputations by providing that s 18 does not apply to radio and television stations, newspaper owners and others [page 540] who carry on the business of providing information,53 in relation to the publication of information other than matter connected with the supply or possible supply by them of goods or services54 or the supply or possible supply of an interest in land, or the publication of an advertisement. Section 38 of the Australian Consumer Law makes similar provision to prevent ss 29, 30, 33, 34 and 37 of that Law (all of which prohibit other types of misleading representations or conduct) applying to publications by the same group of information providers. The insertion of the original Trade Practices Act 1974 (Cth) s 65A, and its continuation in the Australian Consumer Law ss 19 and 38, has limited to a very considerable extent the possible scope of the operation of s 18 in actions based on defamatory imputations. In order to fall within the proscription of s 18, the conduct complained of must be ‘in trade or commerce’.55 But the exemption contained in ss 19 and 38 extends to all those who carry on ‘a business of providing information’. Hence, protection is given not only to the proprietors of news media outlets (whether electronic or print) but also to a freelance journalist who provides an article to such a proprietor.56 Furthermore, the publisher of a book or journal that is available for sale and

(presumably) the author who expects to receive royalties from such sales comes within the terms of the section.57 And, if the publisher of a defamatory imputation does not carry on the business of providing information there are difficulties in the way of finding that the impugned conduct is ‘in trade or commerce’. However, the fact that the only loss suffered by the plaintiff is one to reputation does not preclude the application of s 18.58

17.16 Despite the limitation on the applicability of s 18 in relation to defamatory imputations, there are some circumstances where it may be used either as an alternative to, or a head of liability distinct from, an action in defamation. First, s 19 specifically excludes protection even to a member of the Fourth Estate for advertisements and other publications connected with the supply or promotion of goods, services or interests in land by the information provider. Secondly, a false or misleading statement used by a journalist in order to obtain information is not within the protection given by s 19.59 And, thirdly, it has been held that a complaint by a dissatisfied customer of particular goods or services is conduct ‘in trade or commerce’ for the purpose of s 18.60 If the complaint were sufficiently inaccurate as to give a misleading impression of the goods or services, it would contravene that [page 541] section and, so long as it was published without monetary reward for its author, would not be protected by s 19.61 But if the complaint were, say, broadcast on the electronic media, it is doubtful whether the proprietor of the radio or television station would incur liability under the legislation unless it was aware of, or reckless as to, the misleading nature of the statement.62 _______________ 1.

The legislation in the ACT commenced on 23 February 2006 and that in the Northern Territory on 26 April 2006.

2.

See the Defamation Act 2005 of each of the states, ss 6, 7; Civil Law (Wrongs) Act 2002 (ACT), ss 118, 119; Defamation Act 2006 (NT), ss 5, 6; Defamation Act 1992 (NZ) s 4.

3.

Midland Metals Overseas Pte Ltd v The Christchurch Press Co Ltd [2002] 2 NZLR 289 (CA); see also Bell-Booth Group Ltd v A-G [1989] 3 NZLR 148 (CA); Balfour v A-G [1991] 1 NZLR 519; Leigh v A-G [2011] 2 NZLR 148 (CA).

4.

(2001) 207 CLR 562; 183 ALR 404 at [54]. See further 7.10.

5.

See, to the same effect, Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at [644] per Debelle J; Stewart v Ronalds (2009) 76 NSWLR 99 at [52]–[58] per Allsop P (CA); cf Wade v Victoria [1999] 1 VR 121. But if the plaintiff’s action is for breach of contract, the courts in New Zealand and Australia, no less than those in England, would not deny a right to damages simply because that harm might also be recoverable in defamation: Mahmud v Bank of Credit & Commerce International SA [1998] AC 20 at 40–1; [1997] 3 All ER 1 at 10–11 per Lord Nicholls (HL).

6.

Spring v Guardian Assurance plc [1995] 2 AC 296; [1994] 3 All ER 129.

7.

Young v Bella (2006) 261 DLR (4th) 516 at [56].

8.

See, eg, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443; Kaye v Robertson [1991] FSR 62 (Eng CA).

9.

[2005] 1 NZLR 1.

10.

Ibid at [117] per Gault P and Blanchard J.

11.

Ibid at [129].

12.

[2008] 2 NZLR 277.

13.

Report 113, 2010.

14.

Ibid at para 7.13, R28.

15.

Ibid at para 7.18, R29. See also Penk and Tobin, ‘The New Zealand Tort of Invasion of Privacy: Future Directions (2011) 19 TLJ 191.

16.

Wainwright v Home Office [2004] 2 AC 406; [2003] 4 All ER 969 at [35] per Lord Hoffmann.

17.

Campbell v MGN Ltd [2004] 2 AC 457; 2 All ER 995; see also HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57; [2007] 2 All ER 139 (CA); Mosley v News Group Newspapers Ltd [2008] EWHC1777 (QB).

18.

Privacy Act RSBC 1996, Chap 873.

19.

Privacy Act CCSM, c P125.

20.

Privacy Act RSNL 1990, Chap P-22.

21.

Privacy Act RSS 1978, c P-24.

22.

BC, s 1(1); Man, s 3(a); NL, s 3(1); Sask, s 2.

23.

Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 at [40]–[42] per Gleeson CJ; at [107] per Gummow and Hayne JJ, at [335] per Callinan J. See generally Butler, ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 MULR 339; McDonald, ‘Tort’s Role in Protecting Privacy: Current and Future Directions’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, Ch 4.

24.

(2008) 24 VR 1.

25.

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (ALRC 108, 2008) Ch 74.

26.

New South Wales Law Reform Commission, Invasion of Privacy, Report No 120, 2009.

27.

Victorian Law Reform Commission, Surveillance in Public Places, Final Report 18, 2010.

28.

Ibid paras 7.249–7.250. See also Witzleb, ‘A Statutory cause of Action for Privacy? A Critical

Appraisal of Three Recent Australian Law Reform Proposals’ (2011) 19 TLJ 104. 29.

For the history of defamation in England see Veeder, ‘History of the Law of Defamation’ in Ames, Select Essays in Anglo-American Legal History, Vol III, 1907, p 446; Holdsworth, History of English Law, Vol V, 1924, pp 205–12, Vol VIII, 1925, pp 333–78; Plucknett, Concise History of the Common Law, 5th ed, 1956, pp 483–502.

30.

Holdsworth, History of English Law, Vol VIII, 1925, pp 363–7 but cf Kaye, ‘Libel and Slander— Two Torts or One?’ (1975) 91 LQR 524.

31.

This distinction may be discerned from King v Lake (1670) Hardres 364; 145 ER 499.

32.

The origins of this difference cannot be traced with any certainty, but it was regarded as having long been the rule by the time of Thorley v Lord Kerry (1812) 4 Taunt 355; 128 ER 367.

33.

Defamation Act 1847 (11 Vic, No 13) s 1.

34.

19 Vic, No 4, which forms the basis of what became the Wrongs Act 1958 (Vic) Pt I.

35.

See, eg, the Libel Act 1843 (UK) (concerned largely with libels in the then burgeoning popular press, and adopted in the Australian colonies and New Zealand).

36.

Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632.

37.

Although Tasmania, like Queensland, has codified its criminal law, it maintains a clear distinction between the tort of defamation and the crime: the latter is provided for in the Criminal Code Act 1924 (Tas) s 196.

38.

West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535; 23 ALR 257.

39.

Report on Defamation, LRC 11.

40.

Report on Unfair Publication: Defamation and Privacy, ALRC 11. The Western Australian Law Reform Commission also published a Report on Defamation in 1979, but none of its recommendations were implemented.

41.

Defamation, Report 75.

42.

Meckiff v Simpson [1968] VR 62; Maple v David Syme & Co Ltd [1975] 1 NSWLR 97.

43.

Attorney-General’s Department, Outline of Possible National Defamation Law (March 2004).

44.

See the Defamation Acts of the states and Northern Territory, s 3(a); Civil Law (Wrongs) Act 2002 (ACT), s 115(a).

45.

Defamation Acts of the states s 6; Civil Law (Wrongs) Act 2002 (ACT) s 118; Defamation Act 2006 (NT) s 5.

46.

Cf Krahe v Freeman (1988) ATPR 40–871 (NSWSC), in which the imputations concerned a deceased person but no argument was raised that that fact took the publication outside the legislation; an injunction to restrain publication of the matter was refused on different grounds: see fn 57 below.

47.

See the Defamation Acts in all states other than Tasmania s 10; Civil Law (Wrongs) Act 2002 (ACT) s 122; Defamation Act 2006 (NT) s 9.

48.

See Administration and Probate Act 1935 (Tas) s 27(1)(b) and 11.53.

49.

Brabazon v Western Mail Ltd (1985) 8 FCR 122.

50.

In particular because of the ruling of the Full Court of the Federal Court in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25 at 29 that there is ‘no definable boundary

between conduct which is misleading or deceptive… and material which is defamatory’ and the perceived need ‘to maintain a vigorous, free, press as well as an effective and enforceable Trade Practices Act’ (Parl Deb (Hansard), Vol H of R 139, p 1296). 51.

By the Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth) Sch 4.

52.

The Explanatory Memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill 2009 (Cth) states, at para 3.20, that the jurisprudence on the repealed s 65A is relevant to the replacement s 19.

53.

Which includes the Reserve Bank of Australia: Sykes v Reserve Bank of Australia (1997) 151 ALR 579 at 593 per Tamberlin J (Fed Ct) (but no allegation of injury to the plaintiff’s reputation was made in this case).

54.

The exception is directed to promotional material for the media’s own publications, and not to investigative journalism: Sun Earth Homes Pty Ltd v Australian Broadcasting Corp (1993) 45 FCR 265; Ron West Motors Ltd v Broadcasting Corp of NZ (No 2) [1989] 3 NZLR 520 at 541 per Cooke P (CA); see also Sykes’ case (1997) 151 ALR at 594.

55.

For a discussion of the meaning of this phrase, see 22.7.

56.

Bond v Barry (2008) 173 FCR 106; 249 ALR 110 (FC).

57.

Krahe v Freeman (1988) ATPR 40–871 at 49,428 per Rogers J (NSWSC); the defendant was held to be within the New South Wales equivalent of s 65A, as author and publisher of a book, even though that book was his first venture into that business.

58.

RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 179–80; 112 ALR 511 at 526–7 per Beaumont and Spender JJ (FC); see also Brabazon v Western Mail Ltd (1985) 8 FCR 122 at 127–9 per Toohey J; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 524–5 per Wilcox J (Fed Ct); cf Switzerland Australia Health Fund Pty Ltd v Shaw (1988) 81 ALR 111 at 127 per Woodward J (Fed Ct).

59.

TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [54]–[56] per Spigelman CJ (CA).

60.

Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 77 ALR 615 at 627–8 per French J (Fed Ct).

61.

See the Advanced Hair Studio case (1987) 77 ALR 615 at 626–7 per French J and Krahe v Freeman (1988) ATPR 40–871 at 49,429–30 per Rogers J (NSWSC).

62.

See the Advanced Hair Studio case (1987) 77 ALR 615 at 628–9 per French J.

[page 542]

CHAPTER 18 Elements of Defamation

18.1 For the plaintiff to establish a cause of action in defamation it must be shown that defamatory words, or other means of communicating ideas, of and concerning the plaintiff, have been published or otherwise made known to a third party. The three aspects of this requirement — (1) the nature of a defamatory statement, (2) the way in which it may refer to the plaintiff, and (3) the means by which it may be published — are considered in turn.

What is Defamatory? In general 18.2 A defamatory statement may be defined, in general terms, as one that is ‘of a kind likely to lead ordinary decent folk to think less of the person about whom it is made’.1 But any definition can be couched only in the most broad and general terms. Just as a person’s reputation may be enhanced by reference to particular aspects of his or her personality, or be specific to one field of endeavour, so too others may think less of one for a variety of reasons. The lowering of estimation may result from the plaintiff being depicted with less honour than is due, as well as by being the subject of vilification or obloquy. And, since it is necessary that a defamatory statement be made known to others, it is the view of those others, rather than the public at large, which is relevant. Furthermore, defamation is concerned to protect the plaintiff’s business reputation just as much as his or her personal or social attributes, so that statements which disparage a person in his or her calling will also be branded as defamatory.

18.3 To be defamatory, a statement need not impute any moral blame to the plaintiff. It is sufficient if he or she is dishonoured. Thus, it has been held to be a libel to say that a person has been a psychiatric patient,2 or that she has been raped.3 It may also dishonour a man to say that his wife has committed adultery, in that he is depicted as being unable to hold her affection.4 And a caricature, cartoon or photograph which exposes a person to substantial ridicule may also be [page 543] defamatory,5 as is also the case with a description of a person as hideously ugly.6 While the imputation of moral wrongdoing may be libellous, any statement must be viewed in the light of prevailing community standards. Although it was regarded, in the earlier years of the twentieth century, as defamatory of a man to suggest that he had committed adultery,7 or to impute of a woman that she was ‘living in sin’,8 in the light of the more permissive views which currently obtain towards sexual behaviour, it is likely not to be libellous to impute of a woman that she has engaged in pre-marital sex, unless it is also suggested that sexual favours have been bestowed repeatedly and in a manipulative way.9

18.4 Whether statements which have a clearly disparaging meaning are to be found defamatory depends very much on the context in which they are made, and the audience to whom they are made. Comments passed about another in the course of an after-dinner speech, when the guests realise they are not to be taken seriously, may not be defamatory but could take on that character when reported with some solemnity in a newspaper,10 while comments alleging serious impropriety may still be defamatory even though spoken in the course of a light-hearted television program.11 And, if the abuse is so extreme that those who hear or read it pay little or no attention to the imputations, it is likely that the reputation of the object of such vilification will not be harmed, and the statement not regarded as defamatory.12 But, depending on the circumstances of time and place, it has been said that it may be defamatory to call a person a hypocrite,13 an habitual drunkard,14 a Jewhater,15 a Communist16 or a body snatcher,17 or to describe a man as effeminate.18

18.5 It is not necessary that the words used may tend to lower the plaintiff’s reputation in the eyes of all members of the community. In a pluralist society, where there are opposing views on a variety of issues, the tort of defamation would be too narrowly restricted were it limited to those statements which all concur in as demeaning of a person. It is sufficient if the imputation is one which might lead at least a group of people to think less of the plaintiff, provided that the statement is made to members of that group.19 Thus, to say that a person has continued at work during a strike could lead to the enhancement of his or her reputation in the eyes [page 544] of some,20 but is likely to induce fellow members of a trade union to think less of that person, and hence may be defamatory.21 And to call someone an ‘abortionist’, though not implying participation in the illegal termination of pregnancies, is likely to lower him or her in the esteem of those who abhor that practice, and may consequently be defamatory.22

18.6 In the light of the judicial views just referred to, it is suggested that the decision of the English Court of Appeal in Byrne v Deane23 is not likely to be followed in Australia or New Zealand. It had been asserted that a member of a golf club had informed the police about illegal gambling machines which were at the club. The court took the view that the statement could not be defamatory, since no ‘right-thinking’ person24 could regard the plaintiff less well for doing his duty by reporting the commission of a crime. But since the statement had been made known only to fellow members of the club, in whose esteem he had thereby been lowered, it was surely their opinion of the plaintiff which ought to have been relevant.25

18.7 Defamation protects not only a person’s social standing but also his or her professional or trading reputation.26 Thus a defamatory statement may be constituted by an attack on the skill or competence of a doctor,27 an architect,28 a solicitor,29 a businessman30 or an elected representative in a local government body31 or a House of Parliament.32 It may also be defamatory to say of a politician that he or she has changed political allegiance on the basis of a sexual liaison,33 as it may also be to say of the

leader of a political party that he has lost the confidence of that party,34 since that implies a lack of competence; but not merely to say that a person is no longer physically capable of following a calling, for that imputes no want of skill or industry.35 If the plaintiff is engaged in trade or business, an attack must be on his or her reputation as a trader to be defamatory. To say that the owner of a restaurant sells unpalatable food and provides bad service is libellous,36 as it would be to say of a [page 545] journalist that he is not to be taken seriously,37 but to say merely that a product does not fulfil its purpose is not, since that does not affect the regard in which the seller might be held.38 And, to say that the manager of a shop treats his or her customers callously,39 or that a trader is bankrupt or insolvent is defamatory, since that imputes a lack of business acumen,40 whereas to say only that he has ceased to be in business is not, since that does not reflect on his reputation or skill.41

The interpretation of defamatory statements: the innuendo 18.8

It has so far been assumed that the meaning of the statement complained of is readily ascertainable, and clearly defamatory. Obviously this will not always be so. There will often be circumstances where the defamatory meaning of the words arises only by implications to be drawn from the actual words used. Such implications are of two types: (1) those which may be drawn by any reasonable reader or listener from the way in which the statement is expressed; and (2) those which can only be drawn by those who have knowledge of further facts which colour an otherwise entirely innocent statement. The first type of implication often arises in relation to a person who is reported as having been involved in some way with a criminal offence. If no more is said of a person than that they have been arrested and charged with

an offence, that statement does not convey the imputation that he or she is guilty of the offence, as the ordinary reasonable reader is mindful of the presumption of innocence.42 On the other hand, if a person is described as being accused of an offence, the ordinary reasonable reader may understand that to mean that the person is guilty of the crime.43 Similarly, the description of someone as a murder suspect is capable of bearing the defamatory meaning that he or she is suspected on reasonable grounds of commission of that crime,44 just as the description of the plaintiff as ‘facing charges’ conveys the impression that he has been charged with a criminal offence, and not merely that he is defending a civil action.45 In some instances, there need be no overt reference to the plaintiff being even suspected of a crime. In Favell v Queensland Newspapers Pty Ltd,46 a report that the plaintiffs’ house, which was the subject of a controversial development application, had been destroyed by fire, was capable of leading the [page 546] ordinary reasonable reader to conclude that the plaintiffs had committed arson, and that they were reasonably suspected of having committed arson.47 A further example of this type of implication is that of a photograph of the plaintiff surgeons on the cover of a booklet published by the defendant law firm and explaining the firm’s approach to medical malpractice suits, from which the ordinary reader might draw the inference that the defendants were involved in such a malpractice suit against the plaintiffs.48 An example of the second type of innuendo is the statement that an actress had attended a social function. While innocent on its face, it is capable of conveying, to those who know the further facts that the actress had said that she was too ill to take part in the production of a film at that time, the defamatory imputation that she had lied about the state of her health.49 A further example of this second type of innuendo is the statement that the plaintiff is called ‘Ankles’; this was held to be defamatory on proof that the word is a colloquial term meaning ‘a despicable person’.50

18.9 Although both types of implication are often described as innuendoes, the former (in which the imputation derives from what anyone might read

into the statement) is sometimes described as a ‘false’ innuendo, to distinguish it from the latter, the ‘true’ or ‘legal’ innuendo in which the defamatory meaning arises only because of the extrinsic facts known to a class of people.

18.10 In determining whether the words used contain a false innuendo, the court must seek to interpret the words in the way that an ordinary reasonable person would.51 Such a hypothetical reader or listener does not have any particular bias or prejudice which may colour the interpretation,52 although he or she is not a lawyer, so that the capacity is that much the greater for implying a defamatory meaning and reading ‘between the lines’ in the light of general knowledge and experience.53 Account must also be taken of the medium by which the statement is published. If it is in a book, the ordinary reasonable person would be likely both to expect that care had been taken by the author, and to read the impugned passage with some attention.54 But in the case of an article55 or gossip column in a newspaper56 or program on radio57 [page 547] or television,58 the hypothetical reader or listener is less concerned with the precise words used and more with the overall impression gained.59 Where the defamatory words were published to a restricted audience, it is the interpretation placed upon them by that audience which is relevant.60 In some circumstances, the allegedly defamatory words may have been coupled with other statements which tend to refute the imputation. It is normally a question of fact whether the refutation is sufficient to remove the defamatory sting; it is only rarely that it would be possible to conclude that the denial so exactly matches the accusation as to leave the passage as a whole incapable of bearing a defamatory meaning.61

Reference to the Plaintiff 18.11 Not only must the plaintiff prove that the words used by the defendant were defamatory, it must also be shown that they referred to the

plaintiff. This requires consideration of three issues: (1) who may be defamed; (2) the circumstances in which a reference to a specific, but unnamed, individual may be understood as a reference to the plaintiff; and (3) the circumstances in which statements concerning a group of persons may be sued on by the members of that class.

Who may be defamed? 18.12 Any natural person who is in being may bring an action for defamation. But the cause of action does not survive either for the benefit of the plaintiff’s estate after death, or against the estate of the defendant,62 except in Tasmania, where such actions survive the death of either the plaintiff or the defendant.63 If statements impugn the reputation of one who is already dead, relatives may sue only in respect of the slur (if any) which the statements also cast on the reputation of those relatives.64

18.13

In Australia, a trading corporation has no cause of action in defamation unless it employs fewer than 10 persons and is not related to another corporation or is formed for purposes other than financial gain.65 However, a business partnership66 [page 548] and, in New Zealand, a trading corporation,67 may sue for defamation, but since such an entity68 can have no social reputation the imputations must attack its commercial one and be shown to have caused financial harm.69 To be actionable, the statement must impugn the corporation or partnership ‘in the method of conducting its affairs, must accuse it of fraud or mismanagement, or must attack its financial position’.70 A trade union71 or an organisation registered under the Industrial Relations Act 1996 (NSW)72 may also sue for defamation which reflects on the way in which it conducts its affairs. But neither a popularly elected local authority73 nor an organ of central government74 nor a political party75 can bring such proceedings,76 since to permit that action would place an improper limit on freedom of speech. An unincorporated association cannot maintain such an action, since it has no corporate identity, the reputation of which may be diminished.77

Identification of the plaintiff 18.14 The plaintiff need not be referred to by name in a statement in order that it may be sued on. It is sufficient if some people, proved to have knowledge of extrinsic circumstances, might reasonably believe that the statement referred to the plaintiff.78 The damages will be less if it is only a small number of people who have such knowledge of extrinsic circumstances. Identification of the plaintiff as the person referred to may come from others’ knowledge of extrinsic facts.79Thus, a statement that an (unnamed) business college has misled the public as to the efficacy of its courses will be defamatory on proof [page 549] that some readers thereof understood the statement to refer to a particular college.80 And liability in defamation is imposed irrespective of the actual intention of the defendant.81 All that is relevant is that some ordinary reasonable people reading a publication or hearing a broadcast would understand it to refer to the plaintiff. Hence, a work of fiction which portrays a character in a bad light may be defamatory of one who is regarded by others as the basis for the fictional character.

18.15

Identification of the plaintiff may also be derived from other statements, whether made by the defendant82 or third parties. If the identifying statements are made by third parties, they must generally have been made prior to that of the defendant, so as to form an intrinsic circumstance by virtue of which the defendant’s statement may be seen as referring to the plaintiff.83 Publication of identifying material by a third party subsequent to that of the defendant will render the latter’s statement defamatory only if the defendant invites readers to ascertain the plaintiff’s identity from a specific source, to be revealed subsequently to the defendant’s statement.84 The defendant may also be liable when, although the first publication does not identify the plaintiff, a second one, also by the defendant, allows an ordinary reasonable reader to make that identification.85

Defamation of a group 18.16 A class of people cannot be defamed as a class; it is only individual members thereof who may have an action.86 Where a statement is derogatory of a group of people, the question of whether any member may sue depends on such matters as the size of the class impugned and the generality of the charge made. The smaller the class, and the more particular the imputation, the more readily may the ordinary reasonable person infer that the plaintiff (among others) was referred to.87 Thus, to say that all lawyers are thieves88 would not allow any one member of such a large class to sue.89 Nor might attacks on a political party which has a small local membership but is of considerable size internationally necessarily be taken to [page 550] refer to a member of the local branch.90 But an allegation of corruption levelled at the ministry of a government will give each member a cause of action.91 And even though the allegation is expressed to refer to some (unnamed) member or members of a group, that is sufficient to cast a slur on all, allowing each of them to sue.92 Even where the class is too large to permit every member to sue, an individual within the class may still be able to sue if it can be shown that the statement was particularly referable to him or her. So, a slur cast on all the members of a visiting cricket team may be such as to impugn the captain of that team, allowing him to bring an action.93

Publication 18.17 The tort of defamation protects the opinion that others hold of a person, not one’s estimation of oneself. Hence an action will lie only when the defamatory matter is made known to someone other than the plaintiff. This is described as ‘publication’ although, as will shortly be shown, it is not necessary that the imputation be made known to the public at large; it is

sufficient if no more than one person becomes aware of the statement. It is necessary to consider, first, what constitutes publication for these purposes and, secondly, the defences available, both at common law and under statute, to those who are unaware that the material which they make available contains defamatory matter.

What constitutes publication? 18.18 For a defamatory statement to be published, it is necessary only that it be communicated to someone other than the plaintiff.94 And it is irrelevant (for the purpose of establishing liability, though not in assessing damages) that the person to whom the statement was published believed it to be false.95 The necessary communication to a third person will occur not only if the defendant intends the remarks to be heard or read by that person, but also if he or she ought to have foreseen that such a person would become aware of them.96 However, a person will not be liable for an ‘unsuspected overhearing of the words’ spoken [page 551] by him or her to the plaintiff.97 Nor is it sufficient that a document containing defamatory matter is made available to others, whether or not any of them read or comprehended the contents.98 Defamatory matter is published, for these purposes, when a document is directed to be copied by an employee of the defendant,99 when a memorandum is circulated within a company,100 when a staff bulletin is distributed within a government department101 and when the defendant dictates a letter to a typist.102 Further, although it has been held that for the defendant to convey the imputation to his or her own spouse is not publication,103 to communicate the matter to the plaintiff’s spouse is,104 as is a communication to the employees of a corporate plaintiff,105 unless the communication is to a person who receives it on behalf of the company in the ordinary course of business.106 Proof of proper addressing and posting of a letter gives rise to a presumption of publication to the addressee.107 Whether a letter which is addressed to the plaintiff, but in fact read by another person,

is thereby published depends upon whether the defendant could reasonably have foreseen that such would happen. While it has been held that a correspondent would not expect a father to open a letter addressed to his son,108 the opposite was the case when a husband read a letter addressed to his wife.109 And, if one writes to a person at a business address, it may be contemplated that, unless the letter is marked ‘personal’ or ‘private’, it will be opened by office staff and the contents published to them.110 It may be that, with respect to some executives or politicians, even letters marked ‘personal’ are likely to be opened by a personal assistant and hence be published. A postcard and a telegram111 (but not an unsealed letter)112 are presumed to have been published to postal employees.

18.19 Everyone who takes part in the dissemination of defamatory matter is liable.113 Thus, in respect of a libellous article in a newspaper, the author, the printer, the proprietor who published the paper and those who arrange for [page 552] its distribution may all bear responsibility,114 and the proprietor, as well as the writer, may be liable for contributed items such as letters to the editor.115 Equally, a radio or television station will be liable not only for what is said by its own employees, but also for the remarks of persons interviewed, or those who participate in a talk-back program.116 The author of any material posted on the internet is liable for any defamatory statements contained therein,117 but, as is explained in 18.26, the internet service provider which facilitates that posting is generally free of liability. The person who gives further publicity to a defamatory statement attracts liability for that re-publication, even though he or she expressly states that the comment is no more than repetition of what others have said.118 A fortiori, a television station is liable for broadcasting a film containing libellous imputations if it adopts the film as part of its own program.119

18.20

The one who first spoke or wrote the defamatory matter is responsible for any subsequent dissemination, if that repetition was intended or authorised, or might fairly have been contemplated;120 one may remain responsible even if the form of the communication is altered by editing or the

like.121 If the author of the statement would have been protected by qualified privilege in respect of the original dissemination (see 19.39ff) that protection is not lost merely because the material is given wider publicity under freedom of information legislation.122 On the other hand, even though the statement was originally made to the plaintiff alone, the defendant will be liable for a publication to a third party which the plaintiff was under a legal, moral or social duty to undertake.123

18.21

There may be publication by omission. A defendant who is authorised and able to remove or amend defamatory matter which is the work of another and who has failed to do so is deemed to have published it. Thus, a transport authority, in whose bus shelters defamatory posters were placed by unknown persons, may be responsible for publishing the posters on proof that it knew of [page 553] their existence and failed, within a reasonable period, to comply with a request for their removal or obliteration.124

Defendant unaware of defamatory nature of the statement 18.22 Liability for the publication of defamation is generally strict, in the sense that it is irrelevant that the defendant did not intend the words to injure the plaintiff’s reputation, or that he or she failed to take reasonable care in what was published.125 All that is relevant is the way in which the ordinary reasonable person would understand the words that were used by the defendant.126 However, there is a limitation on this principle, which applies to those whose liability derives from having been involved in the process of disseminating a libel written by others.

Innocent disseminators 18.23 It has already been observed in 18.19 that a person such as a

newsagent or bookseller is treated as having published defamatory matter even though he or she did not play a primary part in its creation, or dissemination. Such persons, however, are not liable for their act of publication if they can show that they played a subordinate role in the dissemination, that they had neither knowledge nor the means of knowledge that the material which they made available to the public was libellous and that such lack of knowledge was not due to their negligence. This principle was first established in Emmens v Pottle,127 and substantially developed in Vizetelly v Mudie’s Select Library Ltd.128 It is now contained in s 32 of the uniform defamation legislation in the Australian states (other than South Australia)129 and the equivalent section in the legislation of the territories.130 In New Zealand, the Defamation Act 1992 s 21 makes similar provision. Whether a person escapes liability on this ground is a question of fact, dependent on all the circumstances of the case. In Vizetelly’s case, the jury found that the defendant, the proprietor of a library, had not made out the defence. In a trade magazine taken by the defendant, a publishing house had circulated a notice asking for the return of copies of a certain book in order to withdraw a particular page containing defamatory matter; the defendant ignored the circular and, moreover, did not employ a reader to peruse the novels in its library. Yet it has been held that libraries need not have scholarly works read before circulating them,131 nor, it seems, need the importers of publishers’ remainders of detective stories read them.132 [page 554]

18.24 Similar protection at common law has also been extended to an internet search engine such as Google. In Metropolitan International Schools Ltd v Designtechnica Corp,133 Eady J held that such a device is not a publisher, for these purposes, even of a snippet which is provided in response to a search inquiry, because the provision of that information is completely automated and there is no human intervention.134 His Lordship further held that the protection continues to apply even when the search engine has been informed of the allegedly defamatory nature of a document which it has retrieved, because it was found that there is nothing which that device can do,

in a practical sense, to prevent the offending material being retrieved.135

18.25 Although those common law principles, when first established, assumed that a printer could not rely on this excuse, this assumption no longer necessarily holds true. While printers at the turn of the twentieth century would have needed to read the material presented to them while preparing it for printing, and hence have the opportunity to be apprised of its possibly defamatory nature, printing technology has changed considerably since then, allowing a printer to at least seek to come within the ambit of this defence.136 The Australian uniform legislation acknowledges this development, providing that one who prints or produces material at the direction and on behalf of another is not, for that reason alone, to be regarded as having published it.137

18.26

Others who are protected include booksellers, newsagents and and a porter delivering parcels has been held to be within the rule.139 Similarly, record shops and other wholesale and retail sellers are also protected.140 Australia Post and its employees are exempted from liability in tort in respect of the performance of their statutory functions by its own statutory charter,141 while other providers of postal and similar services may rely on the defamation legislation for protection.142 In Australia, an internet service provider or content host is protected by Commonwealth broadcasting legislation from liability for defamatory material posted on its web site, so long only that it was not aware of the nature of that material.143 Since that protection is available despite the service provider’s possible libraries,138

[page 555] negligence, such businesses enjoy greater immunity than is provided under the uniform defamation legislation,144 which (like that in New Zealand) limits protection to circumstances in which the defendant’s lack of knowledge is not due to any negligence on its part.145 A broadcaster of a live program (whether television, radio or otherwise) can rely on this defence only if it has no direct control over the person who makes the statement complained of.146 _______________

1.

Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 per Jordan CJ; see also Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452 per Hunt J.

2.

Ansley v Penn (HC(NZ), 28 August 1998, Fraser and Pankhurst JJ, unreported).

3.

Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 (CA).

4.

West v Mirror Newspapers Ltd ((CA)NSW, 14 May 1973, unreported) and see Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544–5 per Hunt J.

5.

Dunlop Rubber Co v Dunlop [1921] 1 AC 367 (HL); Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at 448–9 per Hunt J; McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 (CA).

6.

Berkhoff v Burchill [1996] 4 All ER 1008 (CA); and see Cottrell, ‘What does “Defamatory” Mean? Reflections on Berkhoff v Burchill’ (1998) 6 Tort L Rev 149.

7.

Clark v Vare [1930] NZLR 430.

8.

Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 (CA).

9.

Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224 at [186] per Drummond J (FC).

10.

Dolby v Newnes (1887) 3 TLR 393; and see Hodgson v Bulpit (1880) 6 VLR (L) 440 (FC).

11.

Cornes v Ten Group Pty Ltd [2012] SASCFC 99.

12.

Gwynne v Wairarapa Times-Age Co Ltd [1972] NZLR 586 (‘Hitler’s puppets’); Mundey v Askin [1982] 2 NSWLR 369 (CA) (‘vermin’); and see Bennette v Cohen (2005) 64 NSWLR 81 at [46]– [56] per Bryson JA (CA).

13.

Thorley v Lord Kerry (1812) 4 Taunt 355; 128 ER 367.

14.

Alexander v Jenkins [1892] 1 QB 797 at 804 per Kay LJ (CA).

15.

De Stempel v Dunkels [1938] 1 All ER 238 (CA).

16.

Cross v Denly (1952) 52 SR (NSW) 112 (FC).

17.

Awa v Independent News Auckland Ltd [1997] 3 NZLR 590 (CA).

18.

Brander v Ryan (2000) 76 SASR 212 (rev’d on other grounds 78 SASR 234 (FC)); and see Cornwell v Myskow [1987] 2 All ER 504 (CA) (‘Wally of the Week’); Australian Broadcasting Corp v Hanson (CA(Qld), 28 September 1998, BC 9805224, unreported) and note thereon by Handsley and Davis (2001) 9 TLJ 1.

19.

Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544 (Hunt J).

20.

And hence was thought not to be defamatory in Myroft v Sleight (1921) 90 LJKB 883 at 887 per McCardie J.

21.

Murphy v Plasterers Society [1949] SASR 98; and see Ellis v Grant (1970) 91 WN (NSW) 920.

22.

Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 (CA); see also Grundmann v Georgeson (1996) Aust Torts Reports 81-396 (Qld CA).

23.

[1937] 1 KB 818; 2 All ER 204.

24.

The phrase used by Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240 (HL).

25.

Unless, presumably, the reaction of those in whose eyes the plaintiff’s reputation has been sullied is anti-social or irrational. See also Fricke, ‘The Criterion of Defamation’ (1958) 32 ALJ 7; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 693–4 per Glass JA.

26.

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606 at [36] per French CJ, Gummow, Kiefel and Bell JJ.

27.

Jools v Mirror Newspapers Ltd (1984) 56 ACTR 1; Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 (CA). It is also defamatory to comment adversely on the patient care provided by a doctor: McNicol v ACT Health Authority (SC(ACT), Kelly J, 23 September 1988, unreported).

28.

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (CA).

29.

Baric v Doherty (1987) Aust Torts Reports 80-135 (NSWCA).

30.

Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286.

31.

Potts v Moran (1976) 16 SASR 284 (FC).

32.

Pratten v Daily Labour Ltd [1926] VLR 115 (FC).

33.

Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224 at [206] per Drummond J (FC); see also Brander v Ryan (2000) 78 SASR 234 (FC) (defamatory of a politician to say that he does not hold his political beliefs sincerely).

34.

Fairfax (John) & Sons Ltd v Punch (1980) 31 ALR 624 (Fed Ct, FC).

35.

Henderson v Thompson [1934] NZLR 444; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449.

36.

John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; 235 ALR 402; for further proceedings see Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362, noted at 19.21.

37.

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606.

38.

Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364 (WAFC), but cf Bell-Booth Group Ltd v A-G [1989] 3 NZLR 148 at 152–3 (CA).

39.

Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537 (ACTSC).

40.

Shepheard v Whitaker (1875) LR 10 CP 502; Aspro Travel Ltd v Owners Abroad Group plc [1995] 4 All ER 728 (CA); see also Coyne v Citizen Finance Ltd (1991) 172 CLR 211; 99 ALR 252 (denial of business relationship between the parties found to be defamatory); Hewitt v Queensland Newspapers Pty Ltd (SC(ACT), Higgins J, 5 June 1995, unreported) (statement that bankruptcy notice had been issued against plaintiff imputed bad faith on his part).

41.

Ratcliffe v Evans [1892] 2 QB 524 (CA). In some circumstances such a statement may constitute a contravention of the Trade Practices Act 1974 (Cth) s 52 and its equivalents in the Fair Trading Acts of the Australian states and New Zealand: see Chapter 22, but cf 17.15, with regard to the restrictions on liability of ‘prescribed information providers’. Prior to the enactment of that legislation, such a statement might have constituted the tort of injurious falsehood: see 23.2.

42.

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; 42 ALR 487, esp at 300–1; 492 per Mason J.

43.

John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 (CA).

44.

Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [127]–[133] per Bleby J.

45.

Hewitt v Queensland Newspapers Pty Ltd (SC(ACT), Higgins J, 5 June 1995, unreported).

46.

(2005) 79 ALJR 1716; 221 ALR 186.

47.

The meaning to be attributed to the words will be particularly relevant if the defendant relies on

the plea of justification: see 19.4. 48.

Nixon v Slater & Gordon (2000) 175 ALR 15 (Fed Ct); see also Kelson v David Syme & Co Pty Ltd [1998] ACTSC 60 (statement that plaintiff had retired suddenly, when read with accompanying text concerning an investigation into claims of harassment at the plaintiff’s workplace, found to raise imputation of plaintiff’s involvement in that harassment).

49.

Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 (CA). See also Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 (CA); Hough v London Express Newspaper Ltd [1940] 2 KB 507; 3 All ER 31 (CA), but for a criticism of both of these English cases, as involving misapplications of principle, see Anderson v Mirror Newspapers Ltd (1986) 6 NSWLR 99 at 107–11 per Hunt J.

50.

Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982 at [14] per McCallum J.

51.

See generally Farquhar v Bottom [1980] 2 NSWLR 380 at 385–6 per Hunt J and authorities there cited.

52.

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301; 42 ALR 487 at 492–3 per Mason J.

53.

Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; [1963] 2 All ER 151 at 154 per Lord Reid (HL); Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412 per Herron CJ (CA).

54.

Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J; Mitchell v Faber & Faber Ltd [1998] EMLR 807 (Eng CA).

55.

See, eg, Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 769–72 (CA).

56.

Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286 at [22]–[24] per Boddice J.

57.

See, eg, Bond Corp Holdings Ltd v Australian Broadcasting Commn (CA(NSW), 28 June 1989, unreported).

58.

See, eg, Waterhouse v Australian Broadcasting Commn (1988) 90 FLR 25 at 32 per Kelly J (ACTSC); Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364 (WAFC).

59.

Nationwide News Pty Ltd v Murphy (1998) Aust Torts Reports 81-506 (NSWCA); Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 (CA).

60.

Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 (CA); FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 at 496 per Foster J (Fed Ct); Morgan v Mallard (1997) 68 SASR 184 at 193 per Olsson J.

61.

Sergi v Australian Broadcasting Commn [1983] 2 NSWLR 669 (CA); see also Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n; Australian Broadcasting Corp v Comalco Ltd (1986) 12 FCR 510 (FC); Charleston v News Group Newspapers Ltd [1995] 2 AC 65; 2 All ER 313 (HL) (defamatory nature of newspaper headline and photograph neutralised by text of article). As to what constitutes the context of a defamatory statement made in the course of a three-hour radio program, see Australian Broadcasting Corp v Obeid (2006) 66 NSWLR 605 (CA).

62.

Uniform Defamation Acts s 10; Civil Law (Wrongs) Act 2002 (ACT) s 122; Defamation Act 2006 (NT) s 9; references in the remainder of this chapter are to the ‘uniform Acts’ and the respective territories alone. For the legislative provisions relating generally to the survival of causes of action, see 11.53.

63.

Administration and Probate Act 1935 (Tas) s 27(1).

64.

Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536.

65.

Uniform Acts s 9; ACT s 121; NT s 8.

66.

Todd v Swan Television & Radio Broadcasters Pty Ltd (2001) 25 WAR 284.

67.

Defamation Act 1992 (NZ) s 6.

68.

Including, for these purposes, an Australian corporation which is not excluded by the provisions cited in fn 65.

69.

See, eg, Kay v Chesser [1999] 3 VR 55 (CA); Chinese Herald Ltd v New Times Media Ltd [2004] 2 NZLR 749.

70.

South Hetton Coal Co v North-Eastern News Association Ltd [1894] 1 QB 133 at 141 per Lopes LJ (CA); see also Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638–9; 23 ALR 167 at 171 per Mason and Jacobs JJ.

71.

National Union of General & Municipal Workers v Gillian [1946] KB 81; [1945] 2 All ER 593 (CA); Australian Liquor, Hospitality & Miscellaneous Workers Union v Mulligan (1996) 15 WAR 385. On the legal personality of trade unions, see 29.10.

72.

Robertson v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246.

73.

Ballina Shire Council v Ringland (1994) 33 NSWLR 680 (CA); the ban extends to an Aboriginal Land Council: NSW Aboriginal Land Council v Jones (1997) 43 NSWLR 300 (CA). But such a body may sue for injurious falsehood (as to which, see 23.2) and the individual councillors are not precluded from suing in defamation.

74.

Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; 1 All ER 1011 (HL).

75.

Goldsmith v Bhoyrul [1998] QB 459; [1997] 4 All ER 268 (the restriction was applied, despite the fact that the party in question, the Referendum Party, was never likely to gain a seat in parliament).

76.

These common law principles have now been reinforced by the legislation cited in fn 65.

77.

Cother v John Fairfax & Sons Ltd (1947) 64 WN (NSW) 154.

78.

Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 (FC); Cross v Denly (1952) 52 SR (NSW) 112 (FC). For a discussion of what is necessary for identification when the plaintiff carries on a business under a different name, see Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675 (NSWCA).

79.

Morgan v Odhams Press Ltd [1971] 2 All ER 1156 (HL); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (CA). It is sufficient to portray the plaintiff, without naming him or her, on television (Johnston v Australian Broadcasting Commn (1993) 113 FLR 307 (ACTSC)) or in a photograph (Nixon v Slater & Gordon (2000) 175 ALR 15 (Fed Ct)). But those reading a publication must have accurate information on which to base their identification: Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 (NSWSC).

80.

Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 (Fed Ct); see also Clark v Vare [1930] NZLR 430; Mt Cook Group Ltd v Johnston Motors Ltd [1990] 2 NZLR 488; Henry v TVW Enterprises Ltd (1990) 3 WAR 474; Bateman v Shepherd (1997) Aust Torts Reports 81-417 (ACTSC).

81.

Hulton (E) & Co v Jones [1910] AC 20 (HL); Lee v Wilson (1934) 51 CLR 276; Etienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 (FC); Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 (CA) (liability established for article intended to refer to Judge Wall which mistakenly used the name of the plaintiff District Court judge).

82.

See, eg, Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [75]–[77] per Adams J (plaintiffs identifiable from film of them shown previously by defendant television station); Harding v Essay (2005) 30 WAR 1 at [35] per McClure J, at [92] per Pulling J (FC).

83.

Van Ingénue v Mail & Express Publishing Co (1898) 50 NE 979; Astaire v Camping [1965] 3 All ER 666 at 667 per Sellers LJ (CA).

84.

Bastions v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85. And see Galantine v Television NZ Ltd [1992] 3 NZLR 455.

85.

Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180; Hayward v Thompson [1982] QB 47; [1981] 3 All ER 450 (CA).

86.

David Syme & Co Ltd v Canaan (1918) 25 CLR 234.

87.

See generally Snuffer v London Express Newspaper Ltd [1944] AC 116 at 124; 1 All ER 495 at 499 per Lord Porter (HL).

88.

The illustration given in Eastwood v Holmes (1858) 1 F & F 347 at 349; 175 ER 758 at 759 per Willes J.

89.

See also Healy v Askin [1974] 1 NSWLR 436 (‘Labour is disguised Communist’ not referable to endorsed candidate for the Australian Labor Party); Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 (FC) (intemperate attack on all bulk-billing doctors held not applicable to plaintiff).

90.

Knupffer v London Express Newspaper Ltd [1944] AC 116; 1 All ER 495 (HL).

91.

Bjelke-Petersen v Warburton [1987] 2 Qd R 465 (FC); see also Browne v DC Thomson & Co Ltd 1912 SC 359; Christchurch Press Co Ltd v McGaveston [1986] 1 NZLR 610 (CA); Hyams v Peterson [1991] 3 NZLR 648 (CA).

92.

Bjelke-Petersen v Warburton [1987] 2 Qd R 465 (FC), refusing to follow Chomley v Watson [1907] VLR 502; see also McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at [482] per Debelle J.

93.

David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 362 per Priestley JA (CA); aff’d sub nom Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734; [1986] AC 350 at 364 per Lord Keith (PC). If the reference to the defendant can be made only by those with knowledge of extrinsic facts, those facts must be specifically pleaded: Bruce v Odhams Press Ltd [1936] 1 KB 697; 1 All ER 287 (CA).

94.

Pullman v Walter Hill & Co [1891] 1 QB 524 at 537 per Lord Esher MR (CA).

95.

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 37 per Hunt J, relying on Hough v London Express Newspaper Ltd [1940] 2 KB 507; 3 All ER 31 (CA) and Morgan v Odhams Press Ltd [1971] 2 All ER 1156 (HL).

96.

See, eg, Huth v Huth [1915] 3 KB 32 (CA); Robb v Morrison (1920) 20 SR (NSW) 163 at 166 per Pring J (FC).

97.

White v Stone Lighting & Radio Ltd [1939] 2 KB 827 at 836; 3 All ER 507 at 512 per MacKinnon LJ (CA); see also Hill v Balkind [1918] NZLR 740; McNichol v Grandy [1932] 1 DLR 225 (SCC).

98.

David v Abdishou [2012] NSWCA 109 at [228]–[287] per McColl JA, with whom Beazley JA and Sackville AJA concurred.

99.

See Pullman v Hill & Co [1891] 1 QB 524 (CA), as explained in Boxsius v Goblet Freres [1894] 1 QB 842 at 849 per Lord Esher (CA).

100. Riddick v Thames Board Mills Ltd [1977] QB 881; 3 All ER 677 (CA); but cf State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 at [126]–[129] (CA). 101. McNicol v ACT Health Authority (SC(ACT), Kelly J, 23 September 1988, unreported). 102. Pullman v Hill & Co [1891] 1 QB 524 (CA). 103. Wennhak v Morgan (1888) 20 QBD 635 (the better ground for the decision is that of Manisty J at 639 that such communications should, for policy reasons, remain confidential, rather than that of Huddleston B at 637–8 that at common law husband and wife were deemed to be one person). 104. Wenman v Ash (1853) 13 CB 836; 138 ER 1432; Howard v Howard (1885) 2 WN (NSW) 5 (FC). 105. Traztand Pty Ltd v Government Insurance Office (NSW) [1984] 2 NSWLR 598. 106. State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 at [129] (CA). 107. Warren v Warren (1834) 1 Cr M & R 250; 149 ER 1073. 108. Powell v Gelston [1916] 2 KB 615. 109. Theaker v Richardson [1962] 1 All ER 229 (CA). 110. Pullman v Hill & Co [1891] 1 QB 524 (CA). 111. Sadgrove v Hole [1901] 2 KB 1 (CA). 112. Huth v Huth [1915] 3 KB 32 (CA). 113. The liability is normally joint (see 29.25), but see Harris v 718932 Pty Ltd (2003) 56 NSWLR 276 (CA) (two publishers of book each separately liable for defamatory content thereof). 114. Goldsmith v Sperrings Ltd [1977] 2 All ER 566 (CA). For the circumstances in which some of these participants may be excused liability, see 18.23. 115. Truth (NZ) Ltd v Holloway [1961] NZLR 22 at 25–6 per Lord Denning (PC); Cherneskey v Armadale Publishers Ltd (1978) 90 DLR (3d) 321 (SCC); and see Wheeler v Federal Capital Press of Australia Ltd (SC(ACT), Kelly J, 17 April 1984, unreported) (newspaper publisher liable for defamatory advertisement). 116. Jacques v Independent Radio News Ltd (HC(NZ), Gendall and Wild JJ, 26 February 1999, unreported); see also Heerey, ‘Publishing the Defamatory Statements of Others’ (1985) 59 ALJ 371. 117. Buddhist Society of Western Australia v Bristile Ltd [2000] WASCA 210; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433. 118. See, eg, Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49–50 (CA); John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at [119] per McColl JA (CA); Coull v Nationwide News Pty Ltd (2008) 23 NTLR 147 at [50] per Mildren J, at [115] per Southwood J (CA). 119. Australian Broadcasting Corp v Comalco Ltd (1986) 12 FCR 510 (FC). 120. Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J (politician giving press conference liable for republication in the media); Slipper v British Broadcasting Corp [1991] 1 QB 283; 1 All ER 165 (CA); Williams v John Fairfax Group Pty Ltd (1991) 7 BR 160 (NSWSC) (newspaper liable for republication by radio station); McManus v Beckham [2002] 4 All ER 497 (CA). 121. Australian Consolidated Press Ltd v Bond (1984) 56 ACTR 14 at 24 per Kelly J; Timms v Clift [1998] 2 Qd R 100 at 105–6 (CA).

122. Ainsworth v Burden (2003) 56 NSWLR 620 (CA). 123. Collerton v MacLean [1962] NZLR 1045; Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364. 124. Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81–127 (NSWSC); see also Byrne v Deane [1937] 1 KB 818; 2 All ER 204 (CA) (see 18.6); Arnett v Roper (SC(WA), Steytler J, 26 March 1999, unreported). 125. See, eg, Hulton (E) & Co v Jones [1910] AC 20 (HL); Lee v Wilson (1934) 51 CLR 276; Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 (CA); see fn 81 above. 126. See generally Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89–95 per Hunt J. 127. (1885) 16 QBD 354 (CA). 128. [1900] 2 QB 170 (CA). 129. Where it is found in the Defamation Act 2005 (SA) s 30. 130. Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act 2006 (NT) s 29. 131. Weldon v ‘The Times’ Book Co Ltd (1911) 28 TLR 143 (CA). 132. Bottomley v F W Woolworth & Co Ltd (1932) 48 TLR 521 (CA). 133. [2011] 1 WLR 1743; [2010] 3 All ER 548. 134. Ibid at [53]. 135. Ibid at [58]. See also Crookes v Newton (2011) SCC 47, in which the Supreme Court of Canada held that the insertion of a hyperlink in a web page is generally not publication, for these purposes, of the material thus rendered available. 136. See the discussion in Jensen v Clark [1982] 2 NZLR 268 at 274–5 per Prichard J (the defendant printer in that case was, however, found to be aware of the likely defamatory nature of the material); McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348 (NSWCA); Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586–7; 141 ALR 1 at 8–9 per Brennan CJ, Dawson and Toohey JJ; at 596; 16 per Gaudron J. 137. Uniform Acts s 32(3)(h); SA s 30(3)(h); ACT s 139C(3)(h); NT s 29(3)(h). 138. Bottomley v F W Woolworth & Co Ltd (1932) 48 TLR 521 (CA); Emmens v Pottle (1885) 16 QBD 354 (CA); Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 (CA); Uniform Defamation Acts s 32(3)(a), (b); Defamation Act 2005 (SA) s 30(3)(a), (b); Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(a), (b); Defamation Act 2006 (NT) s 29(3)(a), (b). 139. Day v Bream (1837) 2 Mood & R 54; 174 ER 212. 140. Uniform Acts s 32(3)(c); SA s 30(3)(c); ACT s 139C(3)(c); NT s 29(3)(c). 141. Australian Postal Corporation Act 1989 (Cth) s 34(1). 142. Uniform Acts s 32(3)(d); SA s 30(3)(d); ACT s 139C(3)(d); NT s 29(3)(d). 143. Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(1). 144. See Uniform Acts s 32(3)(f), (g); SA s 30(3)(f), (g); ACT s 139C(3)(f), (g); NT s 29(3)(f), (g). 145. Uniform Acts s 32(1)(c); SA s 30(1)(c); ACT s 139C(1)(c); NT s 29(1)(c); Defamation Act 1992 (NZ) s 21(c); for the position at common law, see Bunt v Tilley [2006] 3 All ER 336 (CA). 146. Uniform Acts s 32(3)(e); SA s 30(3)(e); ACT s 139C(3)(e); NT s 29(3)(e); for an example of a

situation where a broadcaster would now be held to have such effective control, see Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1.

[page 556]

CHAPTER 19 Defamation: Defences and Remedies

19.1 The defendant to a defamation action may be able to show that the plaintiff has not made out a cause of action, in that the words complained of were not defamatory, or did not refer to the plaintiff, as discussed in Chapter 18. Even if the words complained of are defamatory of the plaintiff, the defendant has a variety of defences which are discussed below. The chapter concludes with a consideration of the remedies available to a successful plaintiff — generally an award of damages, although the plaintiff may also seek an injunction to prevent publication of the damaging material.

Justification 19.2 Both at common law and under the uniform legislation in Australia and (by the appellation of ‘truth’) in New Zealand, it is a complete defence to show that the words complained of are substantially true.1

What constitutes justification? 19.3 It is no part of the plaintiff’s case to establish that the defendant’s statement was untrue, or that the innuendo to be drawn from the defendant’s words was incorrect. The plaintiff has merely to prove the publication of a statement defamatory of him or her. If, however, the defendant can prove that the statement is true that is a complete defence, even if the statement was made maliciously2 (although persistence in an unsuccessful plea may go in aggravation of damages: see 19.80). ‘For the law will not permit a man to recover damages in respect of an injury to a character which he does not …

possess.’3 [page 557] For the defendant to succeed on a plea of justification, it must be shown that the statement is true in substance and effect. The correctness of the statement must be demonstrated in such a way that it meets the sting of the words complained of.4 If the statement is defamatory on its face, the defendant must be able to show that, in all but the most minor respects, it was accurate. So, if the defendant has asserted that the plaintiff is a dishonest, calculating liar, it is not sufficient for the defendant to show that the plaintiff has departed from the truth on one occasion.5 To say that the plaintiff has been convicted and sentenced to a term of imprisonment is not justified if the conviction and sentence were quashed on appeal.6 And if the charge is that ‘a great majority’ of the residents of a town had lost confidence in a local councillor, the defence will fail if no more than 10 per cent of the residents can be shown to hold that view.7 But a minor inaccuracy will not defeat the plea. To say of the plaintiff that he or she had been sentenced to a fine of £1 with the alternative of three weeks’ imprisonment may be justified on showing that the jail term was two weeks.8 Similarly, where the defamatory meaning arises from inferences and innuendoes which the ordinary reasonable person might draw from the words used,9 the defence is made out only when the defendant is able to prove the truth of the defamatory meaning fairly to be drawn from the words. It is irrelevant that some other meaning might be attributed to the statement, and that the defendant can demonstrate the accuracy of that other statement. Thus, if a television broadcast might fairly be regarded as meaning that a builder is dishonest, unprofessional and prone to intimidating his customers, it is no answer for the defendant to seek to prove dishonesty, poor workmanship and intimidation of one customer only.10 If the fact finder accepts that the more general charge is the defamatory meaning to be derived from the broadcast, proof of defaults in relation to one customer does not meet the sting of that allegation.

19.4 It has already been observed in 18.8 that, depending on the way in which the statement is phrased, it may be defamatory to say of X that he or she has been charged with a criminal offence. If the words raise no further implication, they may be justified on proof of the charge having been laid, even though the plaintiff’s complaint was that the impugned statement carried the implication that the plaintiff was guilty.11 And if the words carry the imputation that there are, objectively speaking, reasonable grounds on which the plaintiff might have been properly suspected of a serious crime, it is the fact of those reasonable grounds [page 558] which must be proved.12 But if they carry the innuendo that not only was the charge properly laid but also that X is guilty of the offence, the defendant can justify the statement only on proof of that guilt.13 If a person has been convicted of a criminal offence, and is subsequently described as being guilty of that crime, evidence of the conviction is generally sufficient justification. The uniform defamation legislation in Australia provides that proof of conviction by an Australian court is conclusive evidence of guilt, while proof of conviction by any other court or by a court martial is evidence of the commission of the crime,14 (although in South Australia evidence of a conviction is merely admissible in civil proceedings in proof of guilt15) while in New Zealand such evidence is to be taken as conclusive proof of guilt.16

19.5 It will not avail the defendant to show no more than the accurate repetition to a third person of material heard from another; to succeed the defendant must show that what was heard and repeated is true.17 Were the law otherwise, it would be too easy to avoid liability for defamation by prefacing one’s remarks with ‘it is said’ or ‘there is a rumour’. Even an expression of disbelief in the matter repeated will not afford protection.18

19.6 Many statements are comprised both of fact and of opinion. In so far as the statement is one of opinion, the defendant will normally seek to rely on the defence of honest opinion: see 19.13. If for any reason reliance on that plea is precluded, the defendant is entitled to plead justification of both the matters of fact and of opinion.19 With regard to the latter, it must be shown

that the opinion given is one to be naturally implied from the facts stated and proved to be true.20

19.7 The completeness of the defence of justification must be emphasised. Even if the defendant be inspired by malice or even if, when making the comments, he or she did not believe them to be true, if in fact they are true the defence is good. If the imputation conveyed by the libel amounts to a general charge against the character of the plaintiff, evidence of facts which came into existence after the publication of that matter may be admitted, so long as that evidence has a qualitative and temporal proximity to the imputation.21

19.8 The tort of defamation protects a person’s reputation among his or her fellows, but does not protect one’s privacy. In consequence, a medium of mass [page 559] communication is free, subject to one exception, to rake up a person’s forgotten past and ruin him or her deliberately in the process, without risk of incurring tortious liability.22 The exception referred to is that all jurisdictions other than Victoria have enacted legislation under which it is lawful to deny the existence of a conviction for a minor offence, if the conviction was entered more than 10 years previously and the offender has not been subsequently convicted.23

19.9 Although a statement may be interpreted by the ordinary reasonable person as making a general denigration of the plaintiff’s character, if the latter is able, in the circumstances, properly to rely on one particular meaning only in framing the action, the defendant who pleads justification must show that the statement was true in the meaning assigned to it by the plaintiff. The defendant must disregard any possible justification of other meanings which the words may bear.24 Thus, in Advertiser-News Weekend Publishing Co Ltd v Manock,25 the defendant newspaper had charged the plaintiff with incompetence in his profession as a forensic pathologist. The plaintiff, however, relied solely on statements that related to his alleged incompetence in relation to murder trials. It was held that evidence as to the plaintiff’s

conduct in other circumstances was irrelevant and inadmissible.

19.10 The words used by the defendant may consist of two or more imputations against the plaintiff. What the defendant must prove in justification depends on whether those imputations are severable and distinct or whether they have a common sting. If they are severable, and the plaintiff sues in respect of all of them, the defence of justification will succeed only if the defendant proves that all the imputations were true. If the defendant fails in that task, the plaintiff will be entitled to a verdict, but the damages will be reduced to the extent to which the defendant is able to prove the truth of only some of those distinct allegations.26

19.11 If the impugned statement is characterised not as containing several distinct imputations, but as comprising a whole, with a common sting, the defendant may successfully plead justification by showing that the common sting is true.27 And, in so doing, the defendant is not necessarily confined to the meanings asserted by the plaintiff, but is entitled to put forward a different meaning and show that the statement so interpreted is substantially true.28 Thus, if allegations are made that [page 560] the plaintiff has engaged in several extra-marital affairs, this may be interpreted as containing the common sting of promiscuity, in which case proof of most, but not all, of the affairs alleged may be sufficient justification.29 Clearly, it is important to determine whether a statement contains severable allegations or one common sting; the resolution of that issue must be determined by the interpretation of the particular words used in the case at hand.30

Contextual truth 19.12 The uniform defamation legislation has extended to all Australian jurisdictions a further aspect of the defence of justification which was formerly available only in New South Wales, Tasmania and New Zealand.31 If the publication carries not only the imputation complained of by the

plaintiff but also one or more additional imputations, which the defendant can prove are substantially true, then so long as these additional imputations do not further harm the plaintiff’s reputation, the defence of contextual truth will have been made out.32 Thus, if, as occurred in Templeton v Jones,33 the plaintiff were described as despising ‘bureaucrats, politicians, women, Jews and professionals’ and sued only in respect of the statement about his views in relation to Jews, it is suggested that the defendant, on proving the truth of the allegations about the plaintiff’s attitude towards the other members of that group, would now34 be able to rely on the defence of contextual truth.35

Honest Opinion 19.13 The public interest in free debate about matters of concern to all is regarded as outweighing the need to protect a person’s reputation. One who has made a defamatory statement by criticising another is consequently entitled to protection from liability, provided that the criticism comes within certain limits. These limits are set by the defence of honest opinion which is largely provided for in legislation in both Australia and New Zealand.36 It may be summarised as comprising criticism on matters of public interest, in the form of comment made honestly upon true or privileged statements of fact. Each of the elements of this summary needs to be considered in turn. [page 561]

Matters of public interest 19.14 The defence covers the public conduct of people in public office,37 but not their private life,38 except in so far as it throws light on whether they possess those qualities, such as honesty and integrity, regarded as essential to a person in public life.39 Matters of government and public administration,40 including local government,41 are within its scope. The management of institutions of substantial public concern, such as a football club, is also a matter for honest criticism.42

19.15 Anything submitted to the public for its appraisal is of public interest. Books,43 articles in periodicals and newspapers,44 plays,45 television and radio broadcasts46 (even themselves being film criticism)47 are examples. The work of an architect48 or the performance of actors in public entertainment49 and teaching methods in a high school50 are also within the defence. Indeed, it has been said that whenever a matter ‘is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment’.51 However, as with persons in public life, comment on those who present material to the public must be relevant to that material and not raise criticism of their private lives.52

Comment on true facts or privileged statements 19.16 A further requirement in establishing this defence is that the words used may be fairly regarded as a statement of opinion and not one of fact, and that such an opinion is based on facts which are proved to be true or based on statements made on a privileged occasion. Each aspect of this requirement will be discussed in turn.

A statement of opinion and not fact 19.17 While the law gives considerable latitude to those who voice their criticisms of another — in that the opinion may be biased or exaggerated, so long as it is honestly held (see further 19.24) — it places some restraint on this defence. It requires that the matter of which the plaintiff complains is put in such a way that it can be understood by the finder of fact as being one of opinion and not an assertion of fact. It must, in other words, fairly appear to the reasonable reader or listener to [page 562] be ‘a deduction, inference, conclusion, criticism, judgment, remark or observation’ as distinct from a ‘direct statement concerning, or description

of’, a subject of public interest.53 If it falls into the latter category, the defendant can escape liability only by proving justification54 or possibly that the statement was made on an occasion of privilege. It matters not how the defendant intended the words to be taken, as the test is the way in which the recipient would understand them.55 Hence, to say of a medical man that he is not a qualified medical practitioner and that he is associated with an institute of dubious repute and then to conclude ‘In other words he is a quack of the rankest species’ was held to be comment, giving rise to no liability provided the opinion was honestly held;56 but to say no more than that the plaintiff is ‘a quack’ was found to be a statement of fact, requiring of the defendant that he justify the words before escaping liability.57 It must be stressed that the essence of this defence is that the defendant accepts the plaintiff’s complaint, that the words — in the meaning which the plaintiff has given them — are defamatory, but seeks to avoid liability on the basis that the statement is one which expresses no more than a deduction, inference or conclusion. It is nothing to the point for the defendant to seek to rely on any meaning of the impugned words other than that of which the plaintiff complains.58

19.18 It is not necessary in every case that the facts on which an opinion is based should be expressly put in the defendant’s statement. If the comment comprises criticism of a literary or artistic work, it is sufficient that the work is referred to,59 or, as the High Court said in Pervan North Queensland Newspaper Co Ltd,60 in a passage extensively analysed and supported in full in Channel Seven Adelaide Pty Ltd v Manock,61 the defence will not be lost if: … the facts on which the comment is based are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded.62

[page 563]

19.19

Thus, in Kemsley v Foot,63 the plaintiff newspaper proprietor complained of the headline in the defendant’s newspaper ‘Lower than Kemsley’, which was contained in an article attacking the newspapers published by Lord Beaverbrook. The House of Lords held that this statement

could be taken as implying widely known facts which were notorious to the readers of the newspaper, to the effect that Lord Kemsley was in control of a number of well-known newspapers, and that the conduct of those newspapers was in question.64

19.20 Although it was said,65 some 150 years ago, that it can never be fair comment to impute to someone a dishonourable motive for their actions, that proposition no longer represents the law. The rule, if it was such, has been expressly abrogated by statute in New Zealand,66 and the High Court remarked, in O’Shaughnessy v Mirror Newspapers Ltd,67 that it is ‘part of the freedom allowed by the common law to those who comment upon matters of public interest that facts truly stated can be used as the basis for an imputation of corruption or dishonesty on the part of the person involved’.

Based on true facts or privileged statements 19.21 Provided that the defendant has succeeded in showing that the matter complained of is to be regarded as a statement of opinion, it must further be shown that the opinion is founded either on facts which can be proved to be substantially true, or on statements made on a privileged occasion.68 The need to show the truth of the facts on which the opinion is founded is an essential basis for the plea,69 as an opinion based on false assertions cannot be honest.70 Thus, a review apparently referring to two restaurants cannot come within this defence if the reviewer has sampled the food at only one of them.71 Facts may be false, for these purposes, if by omission the facts which are stated give a false impression.72

19.22 At common law prior to the enactment of the uniform legislation in Australia, if the facts were stated expressly in the libel, the defendant had to prove the truth of each of them; failure to do so in respect of any one, however unimportant, led to the defeat of the plea.73 Where, however, the facts were indicated, it was only when the defence was delivered that the defendant needed to show what facts he or she would rely on, and the truth of them.74 This rule has been abrogated throughout Australia [page 564]

by the uniform legislation,75 and in New Zealand,76 following an English legislative model.77 It is now provided that the defence will not fail so long as the opinion might reasonably be based on such of the facts as are proved to be substantially true.78

19.23 The defence may also succeed, though not based on true facts, if the opinion is expressed in relation to a statement made on an occasion which is protected by privilege, such as a fair and accurate report of parliamentary or judicial proceedings.79

Comment must be honest 19.24 A further requirement of this defence is that the opinion which the defendant voices must be one that he or she honestly holds. Discussion of the statutory provisions relating to the need for honesty is followed by a consideration of the applicability of that concept when the person sued is not the one who formed the opinions expressed.

19.25 The uniform legislation in Australia provides that the defence of honest opinion relied on by the person who formed that opinion is defeated ‘if, and only if, the plaintiff proves that … the opinion was not honestly held by the defendant at the time the defamatory matter was published’.80 The defendant does not have to show that the opinion expressed is one that would be held by any fair-minded and reasonable person, but merely that he or she, with all possible biases and prejudices, honestly took the view which was put forward: Every latitude must be given to opinion and prejudice … Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit.81 A critic is entitled to dip his pen in gall for the purpose of legitimate criticism, and no-one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord.82

19.26 Thus, the description of a medical practitioner who undertook terminations of pregnancies as guilty of genocide or murder might be exaggerated and vehement, but was honestly held and therefore protected;83 similarly, to describe a television program as plagiarism or lazy journalism need not be fair or

[page 565] reasonable, but comes within the defence as being an opinion which an honest person could honestly hold.84

19.27

At common law an opinion which was ‘not an inference or conclusion which an honest man, however biased or prejudiced, might reasonably draw from the facts … stated or known’ would not satisfy the defence.85 In light of the absolute nature of the wording employed in the Australian legislation it is suggested that any requirement of reasonableness has been removed.

Opinion held by one other than the defendant 19.28 Since one who alleges that a statement is defamatory of him or her may commence proceedings against any one of the persons who have been involved in the dissemination of the matter complained of (see 18.18), it is relevant to consider the liability of one who is sued as a publisher, although not the author of the comment. In accordance with ordinary principles of vicarious liability (see generally 26.12), if the author of the matter is the employee or agent of the defendant publisher, the latter may rely on this defence if he or she proves that the opinion was that of the employee or agent. The defence will be defeated if, and only if, the plaintiff proves that the defendant did not believe that the opinion was honestly held by the author.86

19.29 If the author is, in terms of the principles of vicarious liability, an ‘independent contractor’, as when a newspaper is sued for matter appearing in the ‘Letters to the Editor’ column or a radio or television station is the defendant to an action based on what has been said by a contributor to a talkback program or an interview, the defendant publisher may rely on this defence if he or she proves that the opinion was that of the commentator. The defence will be defeated if, and only if, the plaintiff proves that the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator.87

Privilege 19.30 There are two types of occasion on which a person’s false and defamatory statements may be protected from liability by the defence of privilege. On some of these occasions, the privilege is absolute; one person may speak or write ill of another with complete impunity. On others, the privilege is qualified; the defendant may forfeit the protection of the occasion by abusing it.

Absolute privilege 19.31 Certain occasions are deemed to be so important for the free exchange of views that those making statements upon them are not liable in defamation even [page 566] though the words are untrue and spoken or written maliciously. These occasions, where the public interest in freedom of information is paramount, are described as being ones of absolute privilege. The uniform defamation legislation in Australia provides specifically for absolute privilege with respect to parliamentary and judicial proceedings, and leaves the common law to continue to protect other occasions of absolute privilege.88 These include some communications by a minister of the Crown, and between solicitor and client relating to actual or prospective litigation.

Parliamentary proceedings 19.32 It is likely that, at common law, the member of any parliament or legislative assembly is immune from suit for anything said or done in the course of the proceedings of that body.89 However, the matter has been put beyond doubt in Australia and New Zealand by statute. Most legislatures90 have adopted the immunity enjoyed by members of the United Kingdom Parliament by virtue of Art 9 of the Bill of Rights 1688, which provides that ‘the freedom of speech and debates or proceedings in Parliament ought not to

be impeached or questioned in any court or place out of Parliament’. The uniform defamation legislation in Australia, and that in New Zealand, have both made express provision for the conferral of absolute privilege on things said or done in the course of the proceedings.91 While evidence may be given of what has been said in parliament as a matter of history,92 the privilege prevents a plaintiff from relying on such statements as a means of proving the motives, intentions or veracity of a member of the legislature.93 The protection extends beyond what is said in the course of debate in a chamber to include reports, papers, votes and proceedings of a House of Parliament, which are ordered to be printed by that House,94 written statements, such as a paper presented to the House and its preparation,95 broadcasts by radio, television or any other means of the proceedings of the various legislatures,96 together with petitions presented to the respective parliaments,97 and anything said or done while giving evidence before a legislative body.98 However, the privilege does not extend to protect a Member of Parliament who, outside the House, adopts and repeats what he or she had said within its [page 567] confines,99 nor to protect the staff of a minister who have prepared material for the purpose of answering parliamentary questions,100 nor does it extend to protect a member of the public whose statement is repeated within the legislative chamber by a member thereof.101

Judicial proceedings 19.33 Public policy demands that the administration of justice be as free as the legislative process from any concern for liability on the part of those involved therein. As a consequence, anything said or written102 by any of the participants in proceedings before a court103 is absolutely privileged; no action lies for those statements, providing they are relevant to the proceedings, however false or malicious they may be.104 Under the uniform legislation in Australia, the privilege extends to conduct

before any other tribunal established by or under a law of the Commonwealth, the states or the territories that has power to take evidence from witnesses on oath or affirmation.105 Although it was held at common law106 that proceedings before a Royal Commission do not enjoy this privilege, being more investigatory than judicial, the uniform defamation law now includes a Royal Commission or other special commission of inquiry in the definition of a tribunal, and therefore within this immunity.107 Legislation of the Commonwealth Parliament establishing a quasi-judicial tribunal invariably makes express provision for the conferral of the same immunity on the members of the tribunal and those appearing before it as witnesses or on behalf of a party.108 The Defamation Act 2005 (NSW) Sch 1 also makes express provision for the grant of absolute privilege in matters arising under a wide variety of particular statutes.109 At common law privilege did not attach to the proceedings of a body which was merely administrative, in that it did not determine a person’s rights, nor their guilt or innocence.110 Within this category were included hearings for the grant of a liquor licence,111 or for a music and dancing licence.112 It is presumed that [page 568] the same principles will continue to apply under the uniform legislation. Absolute privilege has also been denied in respect of a complaint made to the Attorney-General about the fitness for office of a magistrate,113 and a complaint made to the governing council of a tertiary education institution about its chief executive officer,114 since in neither case was any quasijudicial proceeding contemplated for the resolution of the complaint. The privilege is enjoyed by judges, parties, witnesses,115 counsel116 and solicitors117 and jurors.118 Judges are protected although their statements are known by them to be false or are irrelevant to the matter in hand.119 The others engaged in the proceedings retain the privilege although the statement is malicious, but not when the utterance is so irrelevant that it is no longer made by a person in the character of a participant in the proceedings.120 If the proceedings are before a quasi-judicial tribunal, it is likely that the privilege is lost if the tribunal acts in excess of its jurisdiction.121

19.34 The privilege not only covers statements made orally or in writing by way of evidence before the court or tribunal,122 but also extends to documents initiating proceedings,123 communications by prospective witnesses to the parties or their legal advisers,124 documents such as pleadings or affidavits made in the course of proceedings,125 and any judgment, order or other determination of the court or tribunal.126 But it does not apply to communications made at the preliminary stage of an inquiry, before judicial or quasi-judicial proceedings are a necessary consequence.127

Ministerial communications 19.35 The paramountcy of freedom of information in the conduct of government, demonstrated by the privilege accorded to parliamentary proceedings, extends to protect statements made by at least some persons holding high executive office in the government, when they are fulfilling their official functions. Hence, at common law128 a communication from a minister of the Crown, acting in an official capacity, is absolutely privileged and can in no circumstances provide a cause of action in defamation. [page 569] It is not clear whether this privilege attaches to communications by persons other than ministers of the Crown. It has been held to apply to a report by the High Commissioner for Australia in the United Kingdom,129 but on the basis that he, as a representative of the Commonwealth in a foreign country, was strictly analogous to one holding a ministerial portfolio.130 However, it is doubtful whether it applies to any other member of the public service, even including the secretary of a department of government,131 and does not apply to those holding high executive office within the police force.132 The reason for this privilege is seen to lie in the need for governmental functions to be carried out freely, without fear of the possible consequences of action taken. But that does not confine the immunity to communications relating to matters of high government policy. Since governments have long been involved in commercial matters, the privilege extends to any statement made in an official capacity, even though it concerns issues of commerce.133

Solicitor-client communication 19.36 There is little doubt but that, as an adjunct to the protection discussed in 19.33 concerning judicial proceedings, communications by a client to his or her solicitor concerning actual or prospective litigation are absolutely privileged.134 However, if the communication is made in the course of a transaction not related to the client’s actual or impending appearance before a court or tribunal, it is suggested that adequate protection is afforded by regarding the occasion as one of qualified, rather than absolute, privilege. In that case, as will be discussed in 19.50, the privilege is lost if the client is actuated by malice. The English Court of Appeal held, in More v Weaver,135 that a defamatory statement made by a client to his solicitor, in the course of a discussion as to whether a loan should be called in, was absolutely privileged. Although the House of Lords, in the subsequent decision in Minter v Priest,136 expressly left open the question of whether More v Weaver had been rightly decided, the clear tenor of their judgments was that it had unduly extended the protection afforded to the parties to judicial proceedings. To limit the protection by treating the occasion as one of qualified privilege only would appear to be sufficient,137 although in New Zealand a communication between a person [page 570] and a barrister or solicitor for the purpose of obtaining legal advice is protected by absolute privilege.138

Qualified privilege 19.37 In certain circumstances, it is thought desirable that reflections on the reputation of another, although untrue, should not give rise to tortious liability, provided that the person making the statement can show that there is some public interest to be served in uttering the defamatory words, and provided further that he or she has not abused the protection afforded by the law. These are occasions of qualified privilege. Some instances of those occasions are given below, followed by a consideration of the circumstances

where the defence will fail because of the defendant’s abuse of the privilege. The section concludes with a discussion of the statutory defence of qualified privilege for the publication of information to the public at large, together with the defence which is derived from the notion of representative democracy.

Occasions of qualified privilege 19.38 The general principle All the instances of qualified privilege to be considered may be subsumed within the one general principle that they exist for ‘the common convenience and welfare of society’.139 They relate to ‘an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it’.140 The classic statement on the issue, and one that is still quoted with approval, is that of Parke B in Toogood v Spyring.141 The defendant, he said, is liable for a false and defamatory publication: … unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned … If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

The categories of privileged occasions cannot be precisely determined, and cannot be regarded as closed.142 Nevertheless, for the purposes of exposition, and subject to the general principles just referred to, examples of qualified privilege may be grouped as follows: those relating to matters of public interest; those protecting the interest of the person who publishes the statement; those protecting the person to whom they are published; and those relating to matters where both the one who makes the statement and those to whom it is made have a community of interest. [page 571]

19.39 Public interest Until the latter years of the twentieth century, it was considered that there was, in general, no sufficient interest, for these purposes, in the public being apprised of current or past events about which

they may be curious. Hence, the organs of mass communication such as newspapers and television were for the most part unable to claim that their reports of general news items were protected by qualified privilege.143 A limited exception to this rule was made only in rare instances such as for the correction of previously published information,144 or to give a public warning of a dangerous situation which might affect a large part of the population.145 Rather more protection is now given to the publication of news items of general interest by s 30 of the uniform defamation legislation in Australia146 (see 19.58) and by the common law principles relating to the public discussion of government and political matters: see 19.62. The occasions on which it has long been recognised that the public has the necessary interest in being informed, and the publisher the requisite duty to provide that information, are confined to reports of parliamentary proceedings, reports of judicial or quasi-judicial proceedings, extracts from public registers and information concerning criminal activities.

19.40 Reports of parliamentary proceedings It has already been observed in 19.32 that what is actually said in a parliament and official papers and reports issued under the authority of a legislative body are protected by absolute privilege. But it has also been noted in 19.5 that one will normally be liable for repeating the defamatory statements of another, even though it is made clear that the statement is no more than a repetition. The need to allow the free flow of information to the public of the operation of its legislative bodies led to the amelioration of the latter of the above principles, and even at common law a fair and accurate report of the proceedings in a parliament or a committee thereof is privileged.147 That protection is now supplemented by statute in both Australia and New Zealand,148 although the common law rule is still applicable to the extent that the legislative protection is limited to the proceedings in the parliament of the relevant enacting state.149 For the report to be fair it must not be slanted or distorted, although it will not lose that attribute by comprising a summary or sketch of any part of the proceedings which is of special interest.150 Punctilious accuracy is not essential, so long as the report does not give a misleading impression of what was said or written in the [page 572]

legislature.151 A report, being essentially descriptive, is ‘limited to an account of events which have happened, [and] cannot properly include the independent comments or opinions of the reporter’.152

19.41 Reports of proceedings of judicial and other tribunals Reports of the proceedings of courts of law are accorded qualified privilege, so long as they are fair and accurate.153 Since the reason for that protection is the public benefit deriving from the ability of all concerned to be made aware of the workings of the administration of justice,154 it is not available in respect of proceedings to which the public has not been admitted.155 Similarly, there is no protection for a report of documents filed in a judicial registry but not brought up or referred to in open court;156 thus, if a statement of claim were lodged, but the proceedings then discontinued, no privilege would attach to a summary of the particulars alleged in the statement of claim.157 The privilege is available for reports of the proceedings of foreign courts, if those proceedings are of legitimate interest to members of the public within the jurisdiction.158 It will also protect reports of bodies exercising quasi- judicial functions,159 so long as the relevant tribunal exercises a power in which the public may properly be concerned160 and does not derive its authority solely from the consent of the parties.161 The uniform defamation legislation extends this protection to reports of proceedings of a local government body, and of proceedings of a learned society, recreation or trade association in relation to decisions about their members or others subject to their control.162 Also protected are reports of proceedings of a public meeting of shareholders of a public company,163 of an ombudsman164 and of a law reform body.165 A further defence is available to one who publishes a fair copy or summary of another’s report or summary of any such legislative, judicial or other proceedings.166 [page 573] The criteria of fairness and accuracy, which are a prerequisite to protection both at common law and by statute,167 are the same as for reports of parliamentary proceedings; the report must not give a misleading picture of what has occurred.168

19.42 Extracts from public registers The publication of a fair and accurate copy of, or extract from, any register kept pursuant to statute, and which the public are entitled to inspect,169 is privileged at common law,170 and now by statute in Australia and New Zealand.171 The legislative protection extends to a copy of or extract from any report or paper published by a parliamentary body, any judgment or order of a court or arbitral tribunal, any document issued by or on behalf of a government and any record open for public inspection. At common law the information supplied must be (substantially) accurate; there is no protection for the publication of an inaccurate extract from a public register, even though the extract was supplied officially and appeared to be correct,172 whereas under the uniform legislation the defence is defeated only if the plaintiff proves that the defamatory matter was not published honestly.173

19.43 Information concerning criminal activities The duty of a member of the public to bring to the notice of the proper authority any misconduct or criminal activity is recognised by according to such complaints a qualified privilege. This may include providing information to the police,174 or by the police informing a person that allegations of wrongdoing have been made against him or her,175 or making a complaint to one’s member of parliament,176 or to the relevant minister in relation to conduct of public officers.177 But the privilege is lost if the defendant complains to the wrong official, even though the mistake is reasonable in the circumstances.178

19.44 Interest of the publisher Just as self-defence and protection of property are defences in torts affecting the person and property,179 so also is a statement made to protect or advance the defendant’s interests a matter of qualified privilege in defamation.180 In protecting his or her property interests, a person is privileged in what is said in safeguarding a security held over goods put up for auction by his or her debtor,181 or in taking steps to collect money owing.182 But this category of qualified privilege is availed of most frequently in replies to attacks made on one’s [page 574] reputation. A person whose good name is brought into question is granted

qualified privilege in replying to that calumny.183 The attack need not be directed solely to the defendant for the reply to be granted that protection. It is sufficient if the initial criticism was made of a member of the defendant’s family184 or of both the defendant and his or her employer.185 But abusive words directed to a section of the community as a group do not entitle one member thereof to claim privilege in making a reply.186 And if the initial remark is no more than a quip, taunt or jibe, and not an attack on the defendant’s reputation, there is no privilege in replying thereto.187 The analogy between this category of qualified privilege and self-defence to assault and battery may be continued, in that one whose reputation is attacked retains that privilege only if the reply is proportioned to the original charge, both in relation to the content of the response and the persons to whom it is made. Thus, a reply is not privileged if it contains matter which is not sufficiently relevant to or connected with the initial criticism to be regarded as a rebuttal thereof.188 And, if the attack were published to a relatively confined circle of people, the response must be similarly limited if it is not to lose its privileged status.189 However, where the initial damaging statements received wide publicity, as by being made in parliament190 or in the news media,191 the reply may be as widely publicised and still be afforded privilege. In such a case, in order to ensure that the reply can safely be aired, the proprietor of the news medium concerned (be it newspaper or broadcasting) enjoys the same privilege.192 If A should cast a slur on the reputation of B, the latter may, in accordance with the above principles, claim qualified privilege for any defamatory remarks made about A in the response. But the fact that B has responded in that way does not afford A any qualified privilege in making a rejoinder to B’s response.193 If the rule were otherwise, no-one who is the subject of a defamatory slur would be safe in responding, for fear that it would provoke a defamatory rejoinder.

19.45 Interest of the recipient The analogy which may be drawn here from the torts of assault and battery is with the defence of the person of another.194 There is a privilege to publish defamatory statements, where the publication is required [page 575]

for the protection of the interests of another. As with the defence of the person of another, the defendant must show that there was an obligation in the circumstances to endeavour to protect that other — or, as it is generally put,195 that the defendant has a legal, social or moral duty to publish. If the duty is imposed by statute, there is, of course, the general defence of statutory authority.196 In most cases, however, there is no such legally enforceable duty. The question then is whether the circumstances are such that one who sought to do his or her duty by others would reasonably believe that it was proper to make the statement complained of.197

19.46 It is clearly impossible to list all the circumstances which might fall within this category. There is no doubt but that in general the protection applies to a response to a specific inquiry, such as a reference provided by an employer to one considering engaging a former employee,198 or by one employee about a fellow worker.199 Also within this privilege is a false statement concerning another made to the police in the course of their inquiries,200 or an answer to a question asked by a businessman on the financial standing of a prospective customer.201 Where the defamatory statement is made in a publication available to a range of people in fulfilment of a contractual obligation of the publisher, the issue of whether the publication attracts the protection of qualified privilege depends on such factors as the circumstances of the collection of the information and the width of the circle of possible recipients of the publication. Thus, a bulletin published only to persons interested in and concerned with occupational health and safety will come within this privilege,202 as will the provision of information among a group of stock and station agents about any defaults by buyers of stock.203 But the dissemination of credit information, even if made only to subscribers to a publication, was held by the Privy Council, in Macintosh v Dun,204 not to be protected, the principal reason for that conclusion being concern about the way in which the information had been obtained.205 And a financial journal has been held unable to rely on this defence when it was unable to show that the information it disseminated was available to only a limited audience.206

19.47 Although it is more likely that privilege will attach to a response for information, there may be a sufficient interest of one and duty on the other to allow protection for statements which are volunteered. Thus, a host enjoys

this privilege in informing a guest of suspicions about the latter’s employee,207 as does [page 576] a businessman engaged in a business transaction who informs an employer that the latter’s employee is spreading misleading information about the transaction.208 And, although the same protection availed a company director who passed on to the chairman of the board a report about the misconduct of an employee, it did not extend to repetition of those comments to the wife of the employee.209 There is no privilege attaching to the passing on of idle gossip or intermeddling in domestic affairs by a stranger.210

19.48

Community of interest Closely connected with the preceding category of privilege is the occasion on which information is volunteered, but is protected because the publisher and the recipient have a ‘community of interest’211 in the statement made. Such a community of interest will most readily be found in the fact that there is a commercial relationship between the one who makes the statement and those to whom it is made. Thus, when the executive committee of an employer’s association wrote to the members of the association denigrating the conduct of its recently dismissed executive officer, the contents of the letter were held to be privileged,212 as was also the case when one creditor made a statement to another creditor about their debtor.213 Similarly, the shareholders of a public company have a sufficient commonality of interest to protect derogatory remarks made at a shareholders’ meeting.214 Other relationships which qualify for inclusion in this category include that of employment, protecting statements made by an employer about one employee to others in the workplace,215 or membership of a trade union216 or professional association,217 or of an educational institution, thereby affording privilege to an invigilator who informed examination candidates of cheating by one of them.218 But there is no such common interest between a bank and the payee of a cheque drawn regularly on that bank, so that the communication to that payee of a notice of dishonour, if made in error, is not protected.219 Nor is there, in general, such a common interest, for these purposes, between a newspaper and its readers which would grant it

protection for its defamatory remarks,220 unless it is one of strictly limited circulation within a clearly identifiable group.221 But the fact that the [page 577] readership of a non-English language newspaper is thereby limited does not, of itself, establish the requirements of this defence.222 It has, however, been suggested223 that an occasion of qualified privilege might arise when an organ of mass communication engages in publication to the general public of criticism of, and exposure of apparent lapses in, journalistic standards.224 The necessary community of interest must be shown to exist between the one who utters the derogatory statement and those to whom it is published. Spreading the calumny to an excessive degree to others who do not have the same interest will rob the defendant of the privilege which might otherwise have been claimed.225

Abuse of privilege 19.49 The immunity allowed to a defendant who utters a false and defamatory statement on any of the occasions discussed in the preceding pages is conditional. The protection will be lost if it is found that he or she abused the privilege of the occasion. This will occur if the plaintiff is able to prove that the dominant226 reason for the statement being made was one which was inconsistent with the duty or interest for which the occasion is used.227 Apart from direct proof of such an improper purpose, it may be inferred from the defendant’s knowledge of the falsity of the statement, or from the introduction into the statement of matter which is irrelevant and extraneous to the occasion, although evidence of these matters will not always be sufficient.228 Each of these three means of proving the defendant’s ‘express malice’229 will be considered in turn, followed by a consideration of the circumstances in which the defendant may have abused the privilege by publishing the remarks to an excessive degree. The part concludes with a discussion of the circumstances where the privilege is forfeited by one or more of those jointly concerned in the publication of the statement.

19.50 Malicious or improper purpose If the defendant does not act for the purpose of protecting that interest for which the privilege is given, then it is lost.230 Even though the defendant believed the statement to be true, if the fact finder concludes that the dominant motive in making the defamatory statement was an [page 578] improper one, the protection is forfeited.231 The defendant must use the occasion in accordance with the purpose for which the occasion arose.232 Thus, a letter sent to the members of an employers’ association, advising the members that the executive officer’s employment had been terminated, was not accorded this privilege when it was found that at least one purpose of the writer was to blacken the name of that executive officer.233

19.51 It is important to observe that the plaintiff must show this improper motive to have been the causative factor in the defendant’s publishing the defamation. It has been put that the plaintiff’s task is to demonstrate that ‘the defendant was actuated by motives of spite or ill-will independent of the occasion on which the communication was made’.234 Such was the case in Howell v Haines,235 in which the appellant, an aspiring politician, had written to members of his party alleging that the respondent was guilty of corruption; although the appellant was found to have honestly believed the truth of this assertion, he had forfeited his privilege because his dominant motive for airing the allegations was to hurt an opposing wing of his party in general and the respondent in particular.236 If, however, the defendant was using the occasion for its proper purpose, but incidentally had feelings of resentment or dislike towards the plaintiff, this would not deprive the defendant of the privilege. The protection is not lost if the ill-will is not the primary purpose, although still one purpose, of the defendant making the statement.237

19.52 When the occasion of privilege arises because the defendant is responding to an attack made by the plaintiff (see 19.44), considerable latitude is given to the defendant in making a response before he or she will be regarded as having abused the privilege.238 Were it otherwise, the privilege would become illusory in such circumstances, since ill-will and

resentment are the normal reactions to an initial derogatory attack. Especially is this so if the verbal combatants are politicians, since the terms used, although very strong indeed, may be regarded as no more than ‘the language of contemporary political rhetoric’.239 But where there has been not merely a response to an initial attack but a long-running, deeply felt, dispute between two parties, the strength of the language used by one may raise the necessary inference of an improper purpose.240 [page 579]

19.53 Knowledge of falsity of the statement A common means of seeking to prove an abuse of privilege is to show that the defendant did not believe in the truth of the statement, or was reckless whether it be true or false. Proof that the defendant knew that the statement was untrue ‘is ordinarily conclusive evidence that the publication was actuated by an improper motive’.241 Thus, a solicitor who writes that his client has admitted negligence when he knows that the client has made no such admission has abused the privilege.242 And proof of actual knowledge of the falsity is not necessary, if it is shown that the defendant was in reckless disregard of the truth,243 as when one repeats comments and rumours about the plaintiff without seeking any substantiation for them,244 or when a newspaper reporter prepared his version of events at a public meeting before the assembly had occurred, and did not subsequently amend the report.245 If a person knows the true state of affairs, but describes that situation in an ambiguous way, it is open to the jury to find that he or she did not honestly believe that which the words may fairly be taken as meaning.246

19.54 The mere proof that the defendant had no reasonable grounds for believing the statement to be true is not enough for him or her to lose that privilege. It is sufficient that the defendant honestly believed the statement to be true, even though that conclusion as to its truth resulted from unreasoning prejudice or was irrational with regard to the subject matter.247 A fortiori, mere carelessness in failing to ascertain the truth is not to be equated with knowledge of its falsity.248 Indeed, even proof of the defendant’s lack of honest belief in the truth of the statement is not sufficient evidence of malice, as this may lead to a reversal of the onus of proof. Thus, a person handing out

how-to-vote cards at an election will not forfeit this privilege merely because he or she did not stop to consider the truth or otherwise of the imputations contained on the card.249

19.55 Extraneous matter The introduction into a statement of matter that is wholly or substantially unconnected with the occasion which gave rise to the privilege may250 give rise to the inference that the defendant has abused that privilege. Thus, where derogatory remarks were made about a company, the protection it would otherwise have had was lost when its reply went far beyond a response to the initial allegations and became instead a counterattack raising unrelated imputations against the plaintiff.251 As the matter was explained by Lord Diplock, in Horrocks [page 580] v Lowe,252 a defendant who, in the course of exercising this privilege, seized the opportunity to drag in defamatory matter which, even though it was believed to be true, was such that he or she must have realised had nothing to do with the occasion of privilege, will to that extent forfeit that protection. Thus, in Skalkos v Assaf,253 the appellant, a publisher of foreign language newspapers, had written to the Prime Minister complaining about the conduct of a government department in relation to publications in the ethnic press. As such, the letter was protected, but the appellant was held to be liable for additional defamatory remarks he had made in the letter about the conduct of the respondent, a rival publisher of ethnic newspapers.254

19.56 Excessive publication The defendant will also lose the privilege which attaches to a particular occasion if he or she publishes the calumny to a larger number of people than is warranted by the occasion. To charge a fellow club member that he is ‘a crook’ will be privileged if made to a member of the club committee, as there is a sufficient community of interest between the publisher and recipient of the statement, but not if the words are shouted across the club room in the hearing of all present.255 Similarly, a letter sent by one member of a committee to other members of that committee, commenting adversely on the conduct of various local officials, lost the privilege it would otherwise have enjoyed when copies were

sent to various media outlets.256 And, as already mentioned in 19.44, if the privilege arises because of an attack made by the plaintiff on the defendant, the defendant’s response will remain protected only so long as the publicity which it is given is proportionate to that which the plaintiff’s original words received. Hence, one can reply in the press or by other means of mass communication to an attack only if the plaintiff’s initial remarks were similarly widely broadcast.257 An occasion does not cease to be privileged because the defendant publishes to clerks, typists or others in the reasonable course of business practice.258 A company does not forfeit its protection if, in order to have circulated a copy of the auditor’s report, it sends it to printers, for that is ‘reasonable and necessary’.259 The fact that persons are present other than those to whom there is a duty to make the statement will not end the privilege if the ordinary ‘business of life could not well be carried on’ were such restrictions to be imposed.260 The presence of reporters at a local body meeting did not take away that privilege attaching to statements made there.261 If the defamatory matter is republished by being made widely available under freedom of [page 581] information legislation, the original author is generally protected from any liability which would otherwise flow from that wider dissemination.262

19.57 Vicarious liability and joint publishers The above discussion has been concerned only with the position where a single person is responsible for the publication. It remains to consider the extent to which the above principles are affected where two or more may be liable for disseminating the defamatory material. Where liability is shared by reason of the application of the principles of vicarious liability, both employer and employee have the same protection, or lack of it. An agent through whom a person publishes a privileged communication enjoys the same privilege as the principal. For instance, a solicitor has the defence of qualified privilege when he or she publishes on behalf of a client some matter which the client had a privilege to publish.263

But, on the other hand, if an employee, in the course of employment, publishes a statement in abuse of privilege (such as with spite or ill-will) the fact that the employer was not personally malicious will not exempt the latter from vicarious liability. The employee having forfeited the privilege, publication of the defamatory statement is the commission of a tort in the course of employment.264 Where liability is shared because the publication is jointly made (for example, by trustees, partners or members of a committee) each has an independent privilege which is not affected by the fact that one or more of them has abused that privilege. If partner A knew a statement to be false, but partners B and C did not, A loses the defence of qualified privilege, but B and C are not liable.265 Sometimes, one of the persons sued for the publication is a mere ancillary as, for example, a newspaper or television station. Such an ancillary publisher may still plead qualified privilege even though all the principal publishers were actuated by malice, provided that the former did not have that motive.266 If the privilege arises because one protagonist is responding to an attack by another (see 19.44), the fact that the member of the Fourth Estate instigated the attack in the first place makes no difference; any malice must still be proved affirmatively against the media outlet concerned.267

Statutory qualified privilege 19.58 In New South Wales, the common law principles discussed above were supplemented by the Defamation Act 1974 s 22. The substance of that section has now been included as s 30 of the uniform defamation legislation in Australia.268 [page 582] Subsection (1) is, to all intents and purposes, identical with s 20(1) of the former New South Wales Act. It provides: There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: (a)

the recipient has an interest or apparent interest in having information on some subject;

and (b)

the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c)

the conduct of the publisher in publishing that matter is reasonable in the circumstances.269

19.59 One aspect of the former defence which took it well beyond that allowed under the principles discussed in the preceding pages was that whereas those principles required the defendant to show a particular and specific interest in the recipient to receive the communication, and a correlative duty on the part of the publisher to impart it, the notion of interest in s 22 was given a liberal interpretation. As it was put by Hunt J, in Barbaro v Amalgamated Television Services Pty Ltd:270 The word ‘interest’ is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news.

It was accordingly held that the general readership of a newspaper, or the audience of a television program, have an interest for these purposes in receiving information not only on an imminent change to a government scheme to assist home buyers,271 but also in the methods used for training a rugby league team,272 the adequacy of secretarial courses273 or the competence of a business consultant.274 In view of the near identity of the wording of the former New South Wales legislation and the current Australia-wide provision, the same principles would still apply.

19.60 While the common law regards an occasion of qualified privilege as arising only when there is a correlative duty and interest on the part of the maker and recipient of the defamatory statement, the legislative provision requires only that the defendant has acted reasonably in publishing the material. The relationship between the former New South Wales statutory provision and the common law has been described in the following way:275 Section 22 was designed to enlarge the protection afforded by [the common law principles of qualified privilege] to defamatory publications generally, and it has a particular relevance to publications in newspapers; but it gives no carte blanche to newspapers to publish defamatory matter because the public has an interest in

[page 583]

receiving information on the relevant subject. What the section does is to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established.

The same may be said of the current Australia-wide provision.

19.61

One major difference between the former New South Wales provision and the current uniform section in Australia is that the latter provides a non-exhaustive list of nine factors which the court may take into account in determining whether the publication of the statement is reasonable in the circumstances.276 Those factors include the extent to which the matter is of public interest, the extent to which it is confined to the performance of the public functions of the plaintiff, the seriousness of the defamatory imputation, the extent to which the statement distinguishes between suspicions, allegations and proven facts, whether it was in the public interest for the matter to be published expeditiously, whether the defendant has made a reasonable effort to obtain and publish a response from the plaintiff, or otherwise verify the accuracy of the information, the nature of the business environment in which the defendant operates and the source of the information and the integrity thereof. In formulating this list of factors, the drafters277 sought to incorporate into Australian law the approach which the House of Lords had developed, as an aspect of the common law, in Reynolds v Times Newspapers Ltd,278 rejecting the judicial refusal to adopt that approach.279 It remains to be seen whether developments in that common law approach in England will be adopted in Australia in the course of interpreting and applying the legislative provision. This statutory provision is another aspect of the defence of qualified privilege, and is therefore subject to the same limitations. In particular, it expressly provides that it is defeated ‘if the plaintiff proves that the publication of the defamatory matter was actuated by malice’.280

Constitutionally protected privilege 19.62 Starting with two decisions of the High Court of Australia in 1994,281 the courts in Australia and New Zealand have developed a further protection for the publisher of false and defamatory material, based on implications to be drawn from the notion of representative democracy.

In Australia, the defence was settled by the unanimous decision of the High Court in Lange v Australian Broadcasting Corp.282 The court observed283 that, whereas occasions of qualified privilege as previously understood had, in all but exceptional circumstances, been confined to communications between a strictly limited number of people, the concept of representative democracy required the dissemination of [page 584] information about government and political matters to the widest possible audience. It therefore declared284 that each member of the Australian community has an interest in receiving information, opinions and arguments concerning government and political matters that affect them, and that each person in the country had a correlative duty to disseminate such information, opinions and arguments. This interest and duty, although creating a new category of qualified privilege, was seen as no more than an extension from the then existing categories.

19.63 This defence is available only when the matter complained of is discussion of government and political matters. Such discussion includes two aspects: the content of the discussion and the persons about whom it is made. The High Court has suggested285 that discussion may be described as being of government and political matters when it concerns the policies or fitness for office of those who have put themselves forward in public life, together with such of their conduct as is relevant to those issues. And the persons about whom such comment may freely be made within the constitutional protection includes not only members of a government,286 political party, or public body but also those who hold, and those who aspire to, other public offices. It further includes those who are ‘engaged in activities that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators’.287 And, although this defence was initially based on implications to be drawn from the Commonwealth Constitution, it is now established that it is available in relation to all levels of government, including those of a state288 or of a local body.289 However, it does not extend to discussion about religious matters,290 nor

discussions about the use of legal proceedings to silence opponents.291 Furthermore, the trend of authority is against this defence applying to statements about the results of cases or the conduct of judges who decide them.292

19.64 Just as the protection afforded by the traditional categories of qualified privilege will be denied if the defendant was actuated by malice (see 19.50), so too the privilege accorded to this new category will be forfeit if the statement was made for a purpose completely foreign thereto. But it has been stressed293 that publishing material that is designed to injure the political reputation of a candidate for office is [page 585] central to the electoral and democratic process, and cannot therefore be regarded as improper, provided that it is relevant to the purpose of its publication. However, in view of the much wider audience that has an interest in receiving discussion about government and political matters, the protection will also be lost unless the publisher of the false and defamatory material proves that he or she acted reasonably. As the court in Lange observed:294 Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.

Thus, to make generalised statements about a person’s behaviour, based on only four specific instances spanning 10 years, has been held to be unreasonable.295 And, while a failure to give the plaintiff the opportunity to respond is not necessarily unreasonable, for the defendant to distort the facts on which his or her statement was made rendered it clearly unreasonable.296

19.65 By its reliance on the concept of reasonableness as one basis for

exculpation from liability, the defence established by the High Court closely resembles that previously provided for in the Defamation Act 1974 (NSW) s 22, leading to the judicial comment that authorities on the former statutory provision are equally applicable to the constitutional defence.297 It remains to be seen whether the current form which statutory qualified privilege takes in the uniform legislation in Australia will be regarded as so similar to the common law defence, in light of the fact that the statutory defence is a legislative attempt to import principles developed in England into Australia, despite judicial refusal to accept that English approach: see 19.61.

19.66 The defence described in the preceding paragraphs is, of course, a creature of the law of Australia only but, as mentioned in 19.62, a similar defence has been developed in New Zealand.298 The issue of extending the categories of occasions of qualified privilege to widely published statements about politicians first arose in 1998, in Lange v Atkinson.299 The Court of Appeal considered that the nature of democracy in that country meant that the wider public might have a proper interest in respect of widely published statements which directly concerned the functioning of representative and responsible government sufficient to create a [page 586] further category of an occasion of qualified privilege. However, the New Zealand court, unlike the High Court of Australia, limited that category to discussion about the actions and qualities of those currently or formerly elected to parliament.300 A further difference between the then view of the New Zealand Court of Appeal and that of the Australian High Court was that the former declined to limit the defence to those circumstances where the publisher had acted reasonably.301 The Court of Appeal decision was taken on further appeal to the Privy Council which, in a very brief judgment, remitted the matter to the Court of Appeal for reconsideration in the light of the contemporaneous302 judgment of the House of Lords in Reynolds v Times Newspapers Ltd.303 On that reconsideration,304 the court reiterated its earlier view that widespread publication of false and defamatory matter might be within this concept of qualified privilege, provided that the publication concerned those

elected or seeking election to parliament.305 However, the court developed to some extent the boundaries beyond which this defence would not apply. Whereas its earlier decision had rejected the view that a defendant could rely on this defence only when he or she had acted reasonably in publishing the material, the later decision took the view that the Defamation Act 1992 (NZ) s 19 should be read in the light of the newly created occasion of qualified privilege in order to provide adequate protection for statements about political matters. Section 19 prevented reliance on qualified privilege if the defendant takes ‘improper advantage’ of the occasion. If the occasion is a widespread publication concerning political matters, the Court of Appeal said306 that it is: … within the concept of misusing the occasion … if there has been a failure to give such responsible consideration to the truth or falsity of the statements as the jury considers should have been given in all the circumstances. In essence, the privilege may well be lost if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement.

The New Zealand Law Commission considered that the second decision of the Court of Appeal, while providing a reasonable balance between freedom of speech and protection of reputation, was founded on a strained interpretation of s 19.307 It therefore repeated308 a recommendation which it had advanced in an earlier Preliminary Paper,309 that the Defamation Act 1992 be amended by the insertion of a new s 19A, which would expressly impose a requirement that the defendant show that he or she believed on reasonable grounds that the defamatory statement was true.310 However, that recommendation had not been implemented at the time that this edition went to press. [page 587]

19.67 The House of Lords, in Reynolds v Times Newspapers Ltd,311 was also invited to develop the law of qualified privilege with regard to the widespread publication of defamatory statements. The House refused to follow the approach taken in either Australia or New Zealand, although their Lordships acknowledged that there may be occasions on which there was the requisite duty to publish and interest in publication which would protect publication in the mass media. Whether such protection was available on any

particular occasion was regarded as a matter of balancing a wide variety of factors, including the seriousness of the allegation, the nature of the information published, the steps taken to verify it and whether comment had been sought from the plaintiff.312 It has been noted at 19.61 that the statutory qualified privilege in the uniform defamation legislation seeks to import these principles into Australia.

Offer of Amends 19.68 From the enactment of the Libel Act 1843 (Eng) until the latter years of the twentieth century, a measure of statutory protection was given to proprietors of newspapers and other means of mass communication who published defamatory matter without realising that it was of such a nature and who sought to make amends for the hurt on being made aware of the libellous character of the item.313 However, for a variety of reasons the legislation was scarcely ever availed of, and it has now been replaced in both New Zealand and Australia.

19.69 The Defamation Act 1992 (NZ) s 25 provides that one who claims to have been defamed in a news medium may seek a retraction of the matter or a reply. If that request is complied with, the proprietor of the news medium must also pay any expenses incurred by the complainant. The nature of the retraction shall then be taken into account in mitigation of damages.314

19.70 The uniform Defamation Act in Australia makes comprehensive provisions relating to an offer from the publisher of an allegedly defamatory statement to make amends to the person aggrieved by that material. The provisions are contained in Pt 3 Div 1 of the legislation315 and are aimed at encouraging the early resolution of disputes without litigation. The offer must comply with various formal requirements, including an offer to publish a correction and to pay the expenses reasonably incurred by the aggrieved person, and may include other offers, such as to publish an apology or to pay compensation for any loss suffered by the aggrieved person.316 The offer must be made within 28 days of the publisher being notified by the aggrieved person of the latter’s complaint, or prior to service of a defence, if the aggrieved person has already commenced proceedings.317 If the offer is accepted and the terms thereof carried out, the aggrieved person may no longer continue any

[page 588] judicial proceedings in relation to the matter in question.318 If the offer includes a promise to pay compensation, the amount thereof may be agreed between the parties (either at the time of the acceptance or subsequently) or left to be determined by an arbitrator or a court.319 If the offer is not accepted, it may be used as a defence to any subsequent proceedings for defamation, provided that the offer was made as soon as it practicably could have been, and that the court considers that it was reasonable in the circumstances.320

Consent and Acquiescence 19.71 Although it has scarcely ever succeeded, it is clear that there is a defence at common law,321 separate from those already discussed, of consent to the publication of a defamation. The defence is far from easy to prove for the same reason that consent to a battery (see 6.4ff) or the voluntary assumption of the risk of bodily harm by negligence (see 10.19ff) will not readily be found — a court will be slow to conclude that a person has freely agreed that his or her reputation should be lowered in the eyes of others. Thus, there is no consent when a story one has told about oneself to a limited gathering is published in the newspapers,322 nor does the plaintiff acquiesce in the publication of defamatory material when there is a duty to transmit that material to others.323 The defence will also not be made out when all that the plaintiff has done is to provide the defendant with information about himself or herself, since any consent must be to the words complained of, substantially as they were published.324 The defence of consent will also fail when it is not the plaintiff but an agent who has spoken the defamatory words.325 And if the defendant has made a libellous remark on a privileged occasion, to put out a challenge to repeat the words without the benefit of that privilege is taken as a mark of defiance, not consent.326 But the defence has been held to be successful when the plaintiff deliberately enticed the defendant to utter the slander327 and, presumably, when the plaintiff passes on to a newspaper false stories about himself or herself in the hope that they will be published. A distinction must be drawn between the defence of consent and the qualified privilege available when a defamatory statement is made by A in

response to an imputation against A by B: see 19.44. For one thing, consent is a question of fact, whereas the existence of an occasion of qualified privilege is one of law,328 and for another the plaintiff’s consent can operate only in respect of a statement of which he or she is aware, while the form and content of a response to an attack is obviously something of which the plaintiff can have no foreknowledge. [page 589]

Triviality 19.72 Under the uniform legislation in Australia, it is a defence if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.329 This defence is, to all intents and purposes, the same as that provided for in the Defamation Act 1974 (NSW) s 13 and similar in substance to the defences formerly available in the Australian Capital Territory, Queensland and Tasmania.330 The two elements to this defence are that (a) the plaintiff is unlikely to suffer any harm, and (b) such unlikelihood arose from the circumstances of the publication. Thus, whether the plaintiff actually suffered harm is irrelevant, so long as the defendant proves the absence of a real chance or possibility of harm.331 The circumstances of the publication, from which that absence of a real chance of harm must flow, may include such matters as the occasion on which the matter was published and the person or persons to whom it was published. So, a publication to a small number of people, all of whom are well acquainted with the plaintiff and able themselves to make their own judgment as to the accuracy (or otherwise) of the imputation is likely to fulfil this requirement,332 whereas a statement made in the course of a major conference of public importance, to recipients who did not know the plaintiff or any background behind the allegation, is unlikely to do so.333

Defences and Interstate Publication 19.73 Many of the defamation actions brought in Australia in recent years have been in respect of words written in a newspaper or spoken in the course

of a radio or television program. As copies of the newspaper are likely to be sold in each state and territory, or the broadcast is likely to be heard or seen in each jurisdiction, there will be publication of the defamatory matter throughout the country.334 It has also been held that if the defamatory matter has been posted on the internet it is ordinarily to be regarded as being published, for these purposes, where it is available in comprehensible form when it has been downloaded by recipients of the material and not where it is put on to the defendant’s server.335 But a plaintiff is normally permitted to bring only one action in respect of the publication both in that state and in each of the others.336 With regard to the publication in jurisdictions other than the forum, the court is obliged to apply the principles of the conflict of laws (or private international law) to determine whether an action will lie in the forum state for the interstate defamation. [page 590] Prior to the enactment of the uniform legislation, the common law rules laid down by the High Court337 were that the defendant’s liability was to be determined by the law of the place where the tort was committed — that is, in accordance with each of the (then differing) laws of the states and territories, and possibly the laws of some overseas countries. The uniform legislation now provides that in any case where there is multiple publication extending beyond the boundaries of one jurisdiction, the court hearing the matter is to apply the law of that state or territory with which ‘the harm occasioned by the publication as a whole has its closest connection’.338 Among the matters that may be taken into account in determining that place are the location of the plaintiff’s ordinary residence, the extent of the publication in each jurisdiction and the extent of the harm suffered by the plaintiff in each jurisdiction.339

Remedies 19.74 The remedy most often sought by a plaintiff who has been defamed is an award of damages. There are some limited circumstances in which a plaintiff may obtain an injunction to restrain the publication or republication

of the defamatory matter. In all jurisdictions in Australia, the limitation period for an action in defamation is generally one year from the publication of the defamatory matter, but that period may be extended to a maximum of three years if a court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one year limit.340 In New Zealand the limitation period for defamation actions is generally two years but that may be extended to up to six years if the court considers it just to do so.341

Damages In general 19.75 The purpose of an award of damages for defamation is generally to compensate the plaintiff because of the injury done to his or her reputation. For this reason, as it was put by Windeyer J in Uren v John Fairfax & Sons Pty Ltd,342 ‘compensation by damages operates in two ways — as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money’. [page 591] A plaintiff may also recover for the measurable harm done to his or her earning capacity by the publication of the libel.343

19.76 The determination of the amount to be awarded is now, under the uniform legislation in Australia, a matter solely for the judge.344 Although it was said that, at common law,345 the damages were ‘at large’, and few limits were placed on the amount which a jury might have awarded, the uniform legislation in Australia imposes two limits on the award of damages: first, the court must ensure that there is ‘an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded’346 and secondly, unless the court orders otherwise,347 the damages for non-economic loss are not to exceed a statutory cap348 set at $250,000 in

the legislation but subject to annual adjustments to take account of increases in the average weekly total earnings of adults in full-time employment in Australia.349

Mitigation 19.77 In arriving at a conclusion on the sum to be awarded as damages, there are various factors which may be relevant in mitigation of the amount. At common law, which is still applicable in Australia,350 the defendant’s belief in the truth of the statement,351 the fairness of the report352 or the fact that the outburst was provoked by the plaintiff353 may go to decrease the sum that would otherwise have been awarded. The defendant may also give evidence as a ground for mitigation of damages that even before the imputation was made the plaintiff did not enjoy a high reputation; a reputation already lost is of less value.354 And, in view of the continuing nature of damages in a defamation action, such evidence may be of events which occurred after the publication of the libel.355 However, only general evidence to that effect is admissible, and not proof of specific facts which go to demonstrate the disposition of the plaintiff.356 Further, the evidence of bad character must be related to that aspect of the reputation which has been slandered; if a man is charged with promiscuity, [page 592] evidence of his general reputation for dishonesty is irrelevant357 and if a medical practitioner is accused of endangering the health of his patients, evidence relating to his conduct as a medical researcher is inadmissible.358 Nor can the defendant seek to reduce the damages payable by showing that the plaintiff’s reputation had been tarnished by the same libel published by others whom the plaintiff was unable359 or unwilling360 to sue.

19.78 A further ground by which a defendant may seek to reduce the award of damages, in this instance provided for by statute, is to make an apology to the plaintiff,361 or to publish a correction of the defamatory matter.362 But to have this effect, the defendant must seek to undo the harm caused by the original calumny. It is not sufficient, for instance, merely to say that one’s

statement was wrong,363 nor to issue a retraction some considerable time after the defamatory statement was made, and with less prominence than those words had.364 Nor is an apology constituted, for these purposes, by an offer to the plaintiff to use the defendant’s facilities in replying to the charge.365

19.79 Each person who disseminates an imputation is severally liable for its publication. But, in order to discourage a plaintiff from bringing a succession of actions for what is essentially the same libel, the uniform legislation in Australia allows for the mitigation of the damages in one action if the plaintiff has already sued for, or recovered, damages (whether by court order or agreement with the defendant) in respect of matter having the same meaning or effect against other defendants.366

Aggravation 19.80 Just as a plaintiff’s damages may be decreased by general evidence of a bad reputation, so too may they be enhanced if he or she is shown to have a particularly good reputation.367 But the correlation between the evidence which the defendant or plaintiff respectively may lead is exact; evidence of good reputation must be confined to general matters and not specific instances, and must relate to that aspect of the plaintiff’s character which has been impugned.368 Furthermore, in accordance with the general principle that tortfeasors must take their victims as they find them, the damages awarded to one who has been defamed may be increased to take account of a greater sensitivity to criticism and calumny than that of the generality of the population.369 [page 593]

19.81 In a separate category from the factors just discussed is the power of the court, in an appropriate case, to award aggravated damages.370 In accordance with the general principles governing the grant of such damages in respect of other torts (see 27.7), they may be awarded when the conduct of the defendant between the publication of the libel and the trial has been such as to increase the hurt suffered by the plaintiff.371 Although that conduct need

not be malicious, it must, to justify such an award, be in some way unjustifiable, improper or lacking in bona fides.372 To publish material which the defendant knows to be false may amount to such conduct,373 as may the persistence with an unsuccessful plea that the impugned statement was true.374 But the defendant’s failure to give an apology does not necessarily increase the plaintiff’s suffering, and hence is generally not a ground for awarding aggravated damages.375

Exemplary damages 19.82 Aggravated damages are compensatory in nature. They are therefore to be distinguished from exemplary damages, the purposes of the award of which include punishment of the defendant for a high-handed disregard of the plaintiff’s rights and deterrence of the defendant, to prevent him or her from reaping a gain from the wrongdoing: see generally 27.10. Although such damages were available in most jurisdictions if the circumstances should so warrant,376 under the uniform defamation legislation in Australia a plaintiff cannot be awarded exemplary or punitive damages.377

Injunction378 19.83 In seeking the grant of an interim injunction in an action for a tort other than defamation, the plaintiff need not show a prima facie case, but only that there is a serious question to be tried between the parties.379 However, the courts are very much more cautious in granting an interlocutory injunction to restrain the publication or [page 594] re-publication of an alleged defamatory statement, since to do so might stifle the free exchange of ideas, which is so necessary for a democratic society.380 In considering whether to make such an order, the overriding principle applied by the court is that the power will be exercised only in very clear cases, in order not to interfere unduly with either the defendant’s right to freedom of speech or the public’s right to engage in open and fully-informed

debate.381 In elaboration of that overriding principle, there are three prima facie tests382 to which the court will have regard: (1) whether the matter is on its face so clearly defamatory that a finding at a subsequent trial of no libel would be highly unlikely;383 (2) whether there is any real ground on which the defendant’s pleas of justification, privilege or comment would succeed;384 and (3) whether the plaintiff would be likely to recover more than a nominal sum in damages.385 _______________ 1.

Uniform Defamation Act 2005 of the states s 25; Defamation Act 2005 (SA) s 23; Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 1992 (NZ) s 8(1). References in the remainder of this chapter to this legislation is to the ‘Uniform Act’ or the jurisdiction concerned.

2.

Cf Singleton v Ffrench (1986) 5 NSWLR 425 at 437–8 per McHugh JA (CA) (reference by trial judge in summing up to defendant’s attitude grounds for a retrial).

3.

McPherson v Daniels (1829) 10 B & C 263 at 272; 109 ER 448 at 451 per Littledale J.

4.

See generally Webb v Bloch (1928) 41 CLR 331 at 366–7 per Isaacs J; Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 424–5 per Evatt J; Mann v Mackay Television Ltd [1992] 2 Qd R 136 (FC); McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81-584 (NSWSC).

5.

Penton v Calwell (1945) 70 CLR 219; see also Wakley v Cooke (1849) 4 Ex 511; 154 ER 1316 (‘libellous journalist’ not justified by proof of one judgment for libel).

6.

Howden v ‘Truth’ and ‘Sportsman’ Ltd (1937) 57 CLR 416.

7.

Potts v Moran (1976) 16 SASR 284 (FC).

8.

Alexander v North Eastern Rly Co (1865) 6 B & S 340; 122 ER 1221; cf Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271 (ACTSC).

9.

The circumstances in which a defamatory meaning might be derived by inference from the words used have been considered in 18.8.

10.

Television New Zealand Ltd v Haines [2006] 2 NZLR 433 (CA). See also Kelly v Special Broadcasting Service [1990] VR 69; Gumina v Williams (No 2) (1990) 3 WAR 351 (FC).

11.

Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177 (CA); and see David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA); Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 (FC); Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 (FC); cf Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369.

12.

Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [241] per Bleby J.

13.

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; 42 ALR 487; Sergi v Australian Broadcasting Commn [1983] 2 NSWLR 669 at 676–9 per Glass JA (CA). Such proof is only on the civil standard of the balance of probabilities: Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [241] per Bleby J.

14.

Uniform Act s 42; ACT s 139M; NT s 39; the legislation referred to in this and the succeeding two footnotes is designed to ensure that the decision in Hollington v F Hewthorn Ltd [1943] 1 KB 587; 2 All ER 35 does not apply.

15.

Evidence Act 1929 (SA) s 34A; D’Angelis v Levy (1987) 138 LSJS 292.

16.

Evidence Act 2006 (NZ) s 48.

17.

Truth (NZ) Ltd v Holloway [1960] NZLR 69 at 87–8 (CA); aff’d [1961] NZLR 22 (PC); Gobbart v West Australian Newspapers Ltd [1968] WAR 113; Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 (CA); Stern v Piper [1997] QB 123; [1996] 3 All ER 385 (CA); Shah v Standard Chartered Bank [1999] QB 241; [1998] 4 All ER 155 (CA).

18.

Savige v News Ltd [1932] SASR 240.

19.

Sutherland v Stopes [1925] AC 47 at 73 per Lord Shaw.

20.

Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 530 per Jordan CJ (FC).

21.

Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299 at [311] (CA); Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at [217]–[218] per McColl JA (NSWCA).

22.

And see the discussion in 19.4 on what is required to justify a statement as to a person’s guilt of a criminal offence.

23.

See Crimes Act 1914 (Cth) Pt VIIC Div 3; Criminal Records Act 1991 (NSW); Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld); Spent Convictions Act 2009 (SA); Annulled Convictions Act 2003 (Tas); Spent Convictions Act 1988 (WA); Spent Convictions Act 2000 (ACT); Criminal Records (Spent Convictions) Act 1992 (NT); Criminal Records (Clean Slate) Act 2004 (NZ).

24.

Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190 per Samuels JA (CA); Hadzel v De Waldorf (1970) 16 FLR 174 at 181–2 per Fox J (ACTSC); Broadcasting Corp of NZ v Crush [1988] 2 NZLR 234 (CA); and see Television New Zealand Ltd v Haines [2006] 2 NZLR 433 (CA).

25.

(2005) 91 SASR 206 (FC).

26.

See, eg, Becker v Smith’s Newspapers Ltd [1929] SASR 469 (FC); Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at [80] per Levine J.

27.

Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 All ER 84 (CA).

28.

See eg John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 (CA); Soultanov v The Age Co Ltd (2009) 23 VR 182; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387 (CA). The issue of the defendant’s ability to plead meanings different from those asserted by the plaintiff has been the subject of considerable discussion in Australia, both judicial and academic. For a review of that discussion, see Kenyon, ‘Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice’ (2007) 29 Syd L Rev 651.

29.

Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577 (CA).

30.

See Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1030–1; 2 All ER 84 at 101–2 per O’Connor LJ (CA); Broadcasting Corp of NZ v Crush [1988] 2 NZLR 234 at 238 per Cooke P (CA).

31.

Defamation Act 1974 (NSW) s 16; Defamation Act 1957 (Tas) s 18; Defamation Act 1992 (NZ) s 8.

32.

Uniform Act s 26; SA s 24; ACT s 136; NT s 23.

33.

[1984] 1 NZLR 448 (CA).

34.

In APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315 at [42] the Supreme Court of New Zealand noted that the relevant NZ legislation had abrogated the decision in

Templeton v Jones. 35.

For discussion of the former New South Wales provision, see, eg, John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 (CA); TCN Channel 9 v Antoniadis (1998) 44 NSWLR 682 at 691–2 (CA).

36.

Uniform Act s 31; SA s 29; ACT s 139B; NT s 28; NZ: ss 9–12.

37.

See, eg, Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 (Secretary of Commonwealth Government Department).

38.

Mutch v Sleeman (1928) 29 SR (NSW) 125 at 137 per Ferguson J (FC) (Member of Parliament criticised for being ‘a brutal wife-basher’).

39.

Seymour v Butterworth (1862) 3 F & F 372 at 382; 176 ER 166 at 171 per Cockburn CJ.

40.

Henwood v Harrison (1872) LR 7 CP 606.

41.

Slim v Daily Telegraph Ltd [1968] 2 QB 157; 1 All ER 497 (CA).

42.

Lowe v Associated Newspapers Ltd [2007] QB 580; [2006] 3 All ER 357.

43.

Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 (CA).

44.

Kemsley v Foot [1952] AC 345; 1 All ER 501 (HL).

45.

Merivale v Carson (1887) 20 QBD 275 (CA).

46.

Carleton v Australian Broadcasting Corp (2002) 172 FLR 398 (ACTSC).

47.

Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 (HL).

48.

Soane v Knight (1827) Mood & M 74; 173 ER 1086.

49.

London Artists Ltd v Littler [1969] 2 QB 375; 2 All ER 193 (CA); Cornwell v Myskow [1987] 2 All ER 504 (CA).

50.

McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81-584 at [77] per Dunford J (NSWSC).

51.

London Artists Ltd v Littler [1969] 2 QB 375 at 391; 2 All ER 193 at 198 per Lord Denning MR (CA).

52.

Gardiner v John Fairfax & Sons Ltd (1942) 42 SR (NSW) 171 at 174 per Jordan CJ (FC).

53.

Clarke v Norton [1910] VLR 494 at 499 per Cussen J; see also Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 704 per Hunt J. For a recent discussion of the difference between a statement of fact and of comment, see Cleary v Hore-Lacy (No 2) (2009) 21 VR 692 at [43] per Ashley JA (with whom Neave and Redlich JJ A agreed) (CA) and British Chiropractic Ass’n v Singh [2011] 1 WLR 133 (CA).

54.

That is, that the statement is one with which any reasonable person would agree: see 19.6.

55.

Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532 per Jordan CJ (FC); Sims v Wran [1984] 1 NSWLR 317 at 324 per Hunt J; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 469 per Clarke JA (CA). Hence reference to statements other than that of which the plaintiff complains is generally impermissible: Telnikoff v Matusevitch [1992] 2 AC 343; [1991] 4 All ER 817 (HL).

56.

Dakhyl v Labouchere [1908] 2 KB 325n (HL); see also Mitchell v Sprott [2002] 1 NZLR 766 at [27] per Blanchard J (CA).

57.

Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279.

58.

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468 at [83]–[87] per Gummow, Hayne and Heydon JJ; Television New Zealand Ltd v Haines [2006] 2 NZLR 433 at [89]–[93] (CA).

59.

Kemsley v Foot [1952] AC 345 at 355; 1 All ER 501 at 504 per Lord Porter (HL).

60.

(1993) 178 CLR 309 at 327; 117 ALR 569 at 580 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

61.

(2007) 232 CLR 245; 241 ALR 468 at [47]–[72] per Gummow, Hayne and Heydon JJ, Gleeson CJ at [5]–[6]; see also Lowe v Associated Newspapers Ltd [2007] QB 580; [2006] 3 All ER 357, as discussed in Manock at [52]–[55].

62.

See also the discussion of this aspect of the defence in Joseph v Spiller [2011] 1 AC 852; 1 All ER 947 esp at [104]–[105] per Lord Phillips P, with whom the other members of the UK Supreme Court agreed.

63.

[1952] AC 345; 1 All ER 501 (HL).

64.

Ibid at 357; 505–6 per Lord Porter.

65.

Campbell v Spottiswoode (1863) 32 LJ QB 185 at 199 per Cockburn CJ.

66.

Defamation Act 1992 (NZ) s 12.

67.

(1970) 125 CLR 166 at 174. See also Joseph v Spiller [2011] 1 AC 852; 1 All ER 947 at [5] and at [88] per Lord Phillips P (UKSC).

68.

Uniform Act s 31(5); SA s 29(5); ACT s 139B(5); NT s 28(5).

69.

Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319 per Fletcher Moulton LJ (CA); Thompson v ‘Truth’ & ‘Sportsman’ Ltd (1932) 34 SR (NSW) 21 at 25 (PC); Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 463 per Steytler J.

70.

Bjelke-Petersen v Burns [1988] 2 Qd R 129 at 132–3 per McPherson J; and see Hill v Comben [1993] 1 Qd R 603 at 606 per Davies and Pincus JJA (CA).

71.

Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362.

72.

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [272] per Gillard AJA (CA); cf Mitchell v Sprott [2002] 1 NZLR 766 at [34]–[43] (CA).

73.

Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 45–7 per Blackburn J.

74.

Kemsley v Foot [1952] AC 345; 1 All ER 501 (HL).

75.

Uniform Act s 31(6); SA s 29(6); ACT s 139B(6); NT s 28(6).

76.

Defamation Act 1992 (NZ) s 11.

77.

Defamation Act 1952 (UK) s 6.

78.

The facts do not have to be precisely accurate: Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109 at 1114 (PC). But the legislation will not afford a defence where facts on which the comment is based materially add to the harm to reputation: Truth (NZ) Ltd v Avery [1959] NZLR 274; Broadway Approvals Ltd v Odhams Press Ltd [1965] 2 All ER 523 (CA).

79.

Uniform Act s 31(5)(b); SA s 29(5)(b); ACT s 139B(5)(b); NT s 28(5)(b); and see Mangena v Wright [1909] 2 KB 958; Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33; 2 All ER 753 (CA); APN New Zealand Ltd v Simmunovich Fisheries Ltd [2010] 1 NZLR 315 at [36]–[37] (SCNZ).

80.

Uniform Act s 31(4)(a); SA s 29(4)(a); ACT s 139B(4)(a); NT s 28(4)(a). The Defamation Act 1992 (NZ) s 10(1) puts the onus on the defendant to show that the opinion was his or her ‘genuine opinion’.

81.

Merivale v Carson (1887) 20 QBD 275 at 280-1 per Lord Esher MR (CA). See also Rocca v Manhire (1992) 57 SASR 224 at 230 per King CJ (FC); Telnikoff v Matusevitch [1992] 2 AC 343 at 354; [1991] 4 All ER 817 at 824 per Lord Keith (HL).

82.

Gardiner v John Fairfax & Sons Ltd (1942) 42 SR (NSW) 171 at 174 per Jordan CJ (FC).

83.

Grundmann v Georgeson (1996) Aust Torts Reports 81-396 at 63,510-1 per Dowsett J (Qld CA); see also Awa v Independent News Auckland Ltd [1997] 3 NZLR 590 at 595 (CA).

84.

Carleton v Australian Broadcasting Corp (2002) 172 FLR 398 at [252] per Higgins J (ACTSC).

85.

See O’Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347 at 361 per Jacobs and Mason JJA (CA); see, to the same effect, Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532 per Jordan CJ (FC) and Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468 at [90] per Gummow, Hayne and Heydon JJ.

86.

Uniform Act s 31(4)(b); SA s 29(4)(b); ACT s 139B(4)(b); NT s 28(4)(b). The Defamation Act 1992 (NZ) s 10(2)(a) is to similar effect.

87.

Uniform Act s 31(4)(c); SA s 29(4)(c); ACT s 139B(4)(c); NT s 28(4)(c). The Defamation Act 1992 (NZ) s 10(2)(b) is to similar effect.

88.

Uniform Act s 27(1); SA s 25(1); ACT s 137(1); NT s 24(1).

89.

Chenard & Co v Arissol [1949] AC 127 at 133–4, citing with approval Gipps v McElhone (1881) 2 LR (NSW) (L) 18 (FC).

90.

Cth: Parliamentary Privileges Act 1987 s 16(1); NSW: Imperial Acts Application Act 1969 s 6; Qld: Parliament of Queensland Act 2001 s 8; SA: Constitution Act 1934 s 38: Vic: Constitution Act 1975 s 19(1); WA: Parliamentary Privileges Act 1891 s 1; NT: Legislative Assembly (Powers and Privileges) Act 1992 ss 4, 6.

91.

Uniform Act s 27(2); SA s 25(2); ACT s 137(2); NT s 24(2); Defamation Act 1992 (NZ) s 13.

92.

Mundey v Askin [1982] 2 NSWLR 369 at 373 (CA); Hyams v Peterson [1991] 3 NZLR 648 at 656 (CA) and see AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2009) 74 NSWLR 612.

93.

Prebble v Television New Zealand Ltd [1995] 1 AC 321; [1994] 3 All ER 407 (PC); Parliamentary Privileges Act 1987 (Cth) s 16(3); and see Rann v Olsen (2000) 76 SASR 450 (FC); Cornwall v Rowan (2004) 90 SASR 269 at [397] (FC). In Wright v Lewis (1990) 53 SASR 416 (FC) it was held that this protection does not apply when it is the member of parliament who sues for defamation, but that view was not accepted in Prebble’s case [1995] 1 AC at 335; [1994] 3 All ER at 416.

94.

Uniform Act s 27(2)(a)(i); SA s 25(2)(a)(i); ACT s 137(2)(a)(i); NT s 24(2)(a)(i).

95.

Holding v Jennings [1979] VR 289.

96.

Uniform Act s 27(2)(a)(ii); SA s 25(2)(a)(ii); ACT s 137(2)(a)(ii); NT s 24(2)(a)(ii); NZ s 13(2) (live broadcasts only).

97.

Uniform Act s 27(2)(a)(iv); SA s 25(2)(a)(iv); ACT s 137(2)(a)(iv); NT s 24(2)(a)(iv); NZ s 13(3)(b).

98.

Uniform Act s 27(2)(a)(iii); SA s 25(2)(a)(iii); ACT s 137(2)(a)(iii); NT s 24(2)(a)(iii).

99.

Beitzel v Crabb [1992] 2 VR 121; Buchanan v Jennings [2005] 1 AC 115; 2 NZLR 577 (PC); and see Laurance v Kattar [2000] 1 Qd R 147 (CA).

100. Leigh v Attorney-General [2011] 2 NZLR 148 (CA). 101. R v Grassby (1991) 55 A Crim R 419 (NSWSC); and see Rowan v Cornwall (1997) 68 SASR 253. 102. Page v McGovern (2008) 17 Tas R 208 (FC). 103. Including a court martial: see the definition of ‘Australian court’ in the Uniform Act s 4; Qld Sch 5; ACT s 116; NT s 3. 104. Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J (an action in conspiracy, not defamation, but the principles are identical). It is irrelevant that the proceedings are found subsequently to have been outside the court’s jurisdiction: Rawlinson v Oliver [1995] 3 NZLR 62 (CA). 105. See the definition of ‘Australian tribunal’ in the Uniform Act s 4; Qld Sch 5; ACT s 116; NT s 3; the Defamation Act 1992 (NZ) s 14(1) is to similar effect: see Gray v M [1998] 2 NZLR 161 (CA). 106. Douglass v Lewis (1982) 30 SASR 50. 107. See the legislation referred to in fn 105; the Commissions of Inquiry Act 1908 (NZ) ss 6, 13 is to similar effect. 108. See, eg, Administrative Appeals Tribunal Act 1975 (Cth) s 60; Social Security Act 1991 (Cth), s 1338; Student Assistance Act 1973 (Cth) s 34. Cf Defamation Act 1992 (NZ) s 14(1), which confers absolute immunity on anything said or written by a party before a tribunal as well as by the members, witnesses and representatives. 109. The legislation in the other jurisdictions includes a Sch 1, but in no case is any legislation listed there. 110. O’Connor v Waldron [1935] AC 76 (PC) (inquiry under Canadian Combines Investigation Act). 111. Attwood v Chapman [1914] 3 KB 275. 112. Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431 (CA). See also Purdew v Seress-Smith [1993] IRLR 77. 113. Mann v O’Neill (1997) 191 CLR 204; 145 ALR 682; cf Judicial Officers Act 1986 (NSW) s 48(2). 114. Tertiary Institutes Allied Staff Assoc Inc v Tahana [1998] 1 NZLR 41 (CA). 115. Seaman v Netherclift (1876) 2 CPD 53 (CA); Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J. 116. Munster v Lamb (1883) 11 QBD 588. 117. MacKay v Ford (1860) 5 H & N 792; 157 ER 1397. 118. Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J. 119. Scott v Stansfield (1868) LR 3 Ex 220. 120. See Seaman v Netherclift (1876) 2 CPD 53 at 57 per Cockburn CJ. 121. Cf Anderson v Gorrie [1895] 1 QB 668 at 671 per Lord Esher MR (CA); Sirros v Moore [1975] QB 118; [1974] 3 All ER 776 (CA). 122. Uniform Act s 27(2)(b)(ii); SA s 25(2)(b)(ii); ACT s 137(2)(b)(ii); NT s 24(2)(b)(ii).

123. Teletax Consultants Ltd v Williams [1989] 1 NZLR 698 (CA); Hercules v Phease [1994] 2 VR 411 (App Div); and see Uniform Act s 27(2)(b)(i); SA s 25(2)(b)(i); ACT s 137(2)(b)(i); NT s 24(2)(b)(i). 124. Watson v M’Ewan [1905] AC 480 (HL); Ronald v Harper [1913] VLR 311 (FC); Thompson v Turbott [1962] NZLR 298. 125. Revis v Smith (1856) 18 CB 126; 139 ER 1314; Lilley v Roney (1892) 61 LJQB 727; Uniform Act s 27(2)(b)(i); SA s 25(2)(b)(i); ACT s 137(2)(b)(i); NT s 24(2)(b)(i). 126. Uniform Act s 27(2)(b)(iii); SA s 25(2)(b)(iii); ACT s 137(2)(b)(iii); NT s 24(2)(b)(iii). 127. Medical Practitioners Board of Victoria v Mann (2000) 1 VR 609 (CA); Lucire v Parmegiani [2012] NSWCA 86 at [43]–[51] per Nicholas J. 128. Chatterton v Secretary of State for India [1895] 2 QB 189 (CA); Peerless Bakery Ltd v Watts [1955] NZLR 339 (CA). The Uniform Act expressly provides for the continued application of any common law defences: Uniform Act s 24; SA s 22; ACT s 134; NT s 21. 129. Isaacs (M) & Sons Ltd v Cook [1925] 2 KB 391. 130. Ibid at 398–9 per Roche J. 131. In Jackson v Magrath (1947) 75 CLR 293, a report by the Commissioner of Taxation to the Treasurer was regarded, by Starke and Williams JJ, as absolutely privileged, but by Latham CJ as subject only to qualified privilege (Dixon and McTiernan JJ considered the issue to be irrelevant as no malice had been proved), while in Szalatnay-Stacho v Fink [1946] 1 All ER 303 at 305, Henn Collins J doubted whether one who is not a minister might claim the privilege, a doubt echoed in Richards v Naum [1967] 1 QB 620; [1966] 3 All ER 812 (CA). 132. Gibbons v Duffell (1932) 47 CLR 520; and see Merricks v Nott-Bower [1965] 1 QB 57; [1964] 1 All ER 717 (CA). 133. Isaacs (M) & Sons Ltd v Cook [1925] 2 KB 391; Peerless Bakery Ltd v Watts [1955] NZLR 339 (CA). 134. Browne v Dunn (1893) 6 R 67 (HL); and see Minter v Priest [1930] AC 558 at 573 per Viscount Dunedin (HL). 135. [1928] 2 KB 520. 136. [1930] AC 558. 137. The now repealed Defamation Act 1889 (Qld) s 16 and Defamation Act 1957 (Tas) s 16 provided qualified privilege only. 138. Defamation Act 1992 (NZ) s 14(2). The question is unlikely to arise more than occasionally, as the professional communications between client and solicitor are inadmissible in evidence unless the client waives that right: Minter v Priest [1930] AC 558 (HL). 139. Perera v Peiris [1949] AC 1 at 20 per Lord Uthwatt (PC). 140. Adam v Ward [1917] AC 309 at 334 per Lord Atkinson. 141. (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049-50; for more recent citations thereof, see, eg, Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 775 (CA); John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 at 485–6 (Fed Ct FC). 142. London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22–3 per Lord Buckmaster (HL). 143. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 513 per Latham CJ; Brooks v Muldoon

[1973] 1 NZLR 1 at 9 per Haslam J; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 778 (CA); Australian Broadcasting Corp v Comalco Ltd (1986) 12 FCR 510 (FC); Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263 (FC). It is difficult to support the conclusion of Angel J in Toyne v Everingham (1993) 91 NTR 1 that statements by a politician about a public and controversial figure were made on an occasion of qualified privilege. 144. Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961. 145. Camporese v Parton (1983) 150 DLR (3d) 208 (BCSC); and see Blackshaw v Lord [1984] QB 1 at 27; [1983] 2 All ER 311 at 327 per Stephenson LJ (CA). 146. SA s 28; ACT s 138A; NT s 27. 147. R v Wright (1799) 8 TR 293; 101 ER 1396; Watson v Walter (1868) LR 4 QB 73. 148. Uniform Act s 29(1), (4)(a); SA s 27(1), (4)(a); ACT s 139(1), (4)(a); NT s 26(1), (4)(a); NZ Defamation Act 1992 s 16. 149. Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21 at 40 per Higgins J (ACTSC). 150. Cook v Alexander [1974] QB 279; [1973] 3 All ER 1037 (CA). 151. Cornwall v Rowan (2004) 90 SASR 269 at [589]–[592] (FC); cf Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 18-19 per Miles CJ (reasonable belief in accuracy of report not sufficient). 152. Burchett v Kane (1976), see [1980] 2 NSWLR 266n at 273 per Samuels JA (CA); Curistan v Times Newspapers Ltd [2009] QB 23; [2008] 3 All ER 923 (CA). 153. Kimber v Press Association Ltd [1893] 1 QB 65 (CA); Uniform Act s 29(1), (4)(e); SA s 27(1), (4)(a); ACT s 139(1), (4)(e); NT s 26(1), (4)(e). 154. Furniss v Cambridge Daily News Ltd (1907) 23 TLR 705 at 706 per Gorell Barnes P (CA); Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 62 per Hunt J. 155. Kimber v Press Association Ltd [1893] 1 QB 65 (CA). 156. Lucas (R) & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 (CA); Gobbart v West Australian Newspapers Ltd [1968] WAR 113 at 119–20 per Jackson J. 157. Smith v Harris [1996] 2 VR 335. 158. Webb v Times Publishing Co [1960] 2 QB 535; 2 All ER 789; Thompson v Australian Consolidated Press Ltd (1968) 89 WN (Pt 1) (NSW) 121. 159. See, eg, John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 (Fed Ct, FC) (Liquor Licensing Board); Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; 154 ALR 294 (Royal Commission); Homestead Award Winning Homes Pty Ltd v South Australia (1997) 72 SASR 299 (Commercial Tribunal); see now Uniform Act s 29(1), (4)(f); SA s 27(1), (4)(f); ACT s 139(1), (4)(f); NT s 26(1), (4)(f). 160. See, eg, Allbutt v General Council of Medical Education (1889) 23 QBD 400 (CA). 161. Chapman v Lord Ellesmere [1932] 2 KB 431 (CA). 162. Uniform Act s 29(1), (4)(g)–(j); SA s 27(1), (4)(g)–(j); ACT s 139(1), (4)(g)–(j); NT s 26(1), (4) (g)-(j). 163. Uniform Act s 29(1), (4)(k); SA s 27(1), (4)(k); ACT s 139(1), (4)(k); NT s 26(1), (4)(k). 164. Uniform Act s 29(1), (4)(m); SA s 27(1), (4)(m); ACT s 139(1), (4)(m); NT s 26(1), (4)(m). 165. Uniform Act s 29(1), (4)(n); SA s 27(1), (4)(n); ACT s 139(1), (4)(n); NT s 26(1), (4)(n).

166. Uniform Act s 29(2); SA s 27(2); ACT s 139(2); NT s 26(2); cf Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184. 167. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 780 (CA). 168. Jones v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 (CA); Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; 154 ALR 294 at [4]–[5] per Brennan CJ and McHugh J, at [42] per Gaudron and Gummow JJ; Coull v Nationwide News Pty Ltd (2008) 23 NTLR 147; 155 NTR 1 (CA). 169. Cf Smith v Harris [1996] 2 VR 335 (document summarised not available to the public, hence protection denied). 170. Searles v Scarlett [1892] 2 QB 56 (CA); John Jones & Sons Ltd v Financial Times Ltd (1909) 25 TLR 677. 171. Uniform Act s 28; SA s 26; ACT s 138; NT s 25; Defamation Act 1992 (NZ) s 16(2) and Sch 1 Pt II cl 12. 172. Reis v Perry (1895) 64 LJ QB 566. 173. Uniform Act s 28(3); SA s 26(3); ACT s 138(3); NT s 25(3). 174. Padmore v Lawrence (1840) 11 Ad & El 380; 113 ER 460. 175. LVMH Watch & Jewellery Australia Pty Ltd [2011] NSWCA 370 at [145] per Bergin CJ in Eq. 176. R v Rule [1937] 2 KB 375; 2 All ER 772. 177. Harrison v Bush (1856) 5 E & B 344; 119 ER 509. 178. Hebditch v MacIlwaine [1894] 2 QB 54 (CA); Beach v Freeson [1972] 1 QB 14; [1971] 2 All ER 854. 179. See generally 6.15, 6.18. 180. Norton v Hoare (No 1) (1913) 17 CLR 310 at 318 per Barton ACJ, at 322 per Isaacs, Gavan Duffy and Rich JJ. 181. Blackham v Pugh (1846) 2 CB 611; 135 ER 1086. 182. Winstanley v Bampton [1943] KB 319; 1 All ER 661. 183. Laughton v Bishop of Sodor & Man (1872) LR 4 CP 495; Mowlds v Fergusson (1946) 64 CLR 206; Watts v Times Newspapers Ltd [1997] QB 650; [1996] 1 All ER 152 (CA). But not if the original attack was true: Fraser-Armstrong v Hadow (1994), The Times, 21 January (CA). 184. Bowen-Rowlands v Argus Press Ltd (1926), The Times, 26 March (CA), referred to in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 519–20 per Dixon J. 185. Penton v Calwell (1945) 70 CLR 219. 186. Ibid at 231–2 per Dixon J (on appeal, the Full Court regarded the attacks as personal to the defendant and his employer, and hence entitled to qualified privilege). 187. Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982 at [82] per McCallum J. 188. Harbour Radio Pty Ltd v Keysar Trad (2012) 292 ALR 192 at [36]–[41] per Gummow, Hayne and Bell JJ, at [141]–[146] per Kiefel J; News Media Ownership Ltd v Finlay [1970] NZLR 1089 (CA); Marks v Construction, Mining etc Union of Australia (1995) 14 WAR 360. And see Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982 at [86] per McCallum J: response was ‘no more than splenetic invective’ and thus not protected. But the proportionality need not be exact; the person attacked must not be obliged to respond with one hand behind his or her back:

Alexander v Clegg [2004] 3 NZLR 586 at [62]–[64] (CA). 189. Harding v Essey (2005) 30 WAR 1 at [14] per Steytler J, at [61] per McLure J (FC). 190. Penton v Calwell (1945) 70 CLR 219; Adam v Ward [1917] AC 309 (HL). 191. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503. 192. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 (CA); but protection does not extend to an individual employee of the broadcaster who has not been the subject of an attack. 193. Kennett v Farmer [1988] VR 991; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1223]–[1225]; French v Herald & Weekly Times Pty Ltd (No 2) (2010) 27 VR 171 at [76] per Beach J. 194. On which see generally 6.17. 195. See, eg, Stuart v Bell [1891] 2 QB 341 at 347 per Lindley LJ (CA), a passage which has been described as ‘oft quoted and always with approval’ (Australian Broadcasting Corp v Comalco Ltd (1986) 12 FCR 510 at 540 per Smithers J (FC)). 196. Moore v Canadian Pacific SS Co Ltd [1945] 1 All ER 128 (captain of ship required by statute to record in the log details of all desertions from the ship). 197. Howe v Lees (1910) 11 CLR 361 at 369 per Griffith CJ. 198. Kelly v Partington (1833) 4 B & Ad 700; 110 ER 619. 199. Riddick v Thames Board Mills Ltd [1977] QB 881; 3 All ER 677 (CA). 200. Kine v Sewell (1838) 3 M & W 297; 150 ER 1157. 201. Robshaw v Smith (1878) 38 LT 423. 202. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193. 203. Howe v Lees (1910) 11 CLR 361. 204. [1908] AC 390. 205. See the comments in Bashford’s case (2004) 218 CLR 366; 204 ALR 193 at [15]–[16] per Gleeson CJ, Hayne and Heydon JJ, at [147] per Gummow J. 206. Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369 at [32]–[38] per Bongiorno J. 207. Stuart v Bell [1891] 2 QB 341 (CA). 208. Papaconstuntinos v Holmes a Court (2012) 293 ALR 215 (HCA). See also Cush v Dillon (2011) 243 CLR 298; 279 ALR 631 at [16] per French CJ, Crennan and Kiefel JJ, at [50] per Gummow, Hayne and Bell JJ (statement by one member of a statutory authority to another member about staff-related matters is protected). 209. Watt v Longsdon [1930] 1 KB 130 (CA). 210. Coxhead v Richards (1846) 2 CB 569; 135 ER 1069. 211. The phrase preferred to ‘common interest’ by Griffith CJ in Howe v Lees (1910) 11 CLR 361 at 369. 212. Association of Quality Child Care Centres of NSW v Manefield [2012] NSWCA 123; and see Switzerland Australia Health Fund Pty Ltd v Shaw (1988) 81 ALR 111 (Fed Ct). 213. Spill v Maule (1869) LR 4 Ex 232. 214. Parsons v Surgey (1864) 4 F & F 247; 176 ER 551; and see Telegraph Newspaper Co Ltd v

Bedford (1934) 50 CLR 632 at 658 per Evatt J. 215. Anderson v Ginn (No 2) [1933] NZLR 1073; Tolega Pty Ltd v Sandell (2011) 110 SASR 42. 216. Duane v Granrott [1982] VR 767 (FC); Cavanagh v NT News Services Ltd (1989) 96 FLR 268 at 298 per Rice J (NTSC). 217. Kearns v General Council of the Bar [2003] 2 All ER 534 (CA). 218. Bridgman v Stockdale [1953] 1 All ER 1166. 219. Aktas v Westpac Banking Corp Ltd (2010) 241 CLR 79; 268 ALR 409, esp at [41]–[42] per French CJ, Gummow and Hayne JJ. 220. Telegraph Newspaper Ltd v Bedford (1934) 50 CLR 632; Antonovich v WA Newspapers Ltd [1960] WAR 176. 221. Wells v Croskery [1952] NZLR 312 (trade union journal). 222. Andreyevich v Kosovich (1947) 47 SR (NSW) 357 (FC); Korean Times Pty Ltd v Un Dok Pak [2011] NSWCA 365 at [34]–[40] per Basten JA. 223. Carleton v Australian Broadcasting Corp (2002) 172 FLR 398 at [159] per Higgins J (ACTSC). 224. The judge regarded this proposition as no more than a development from the constitutionally protected discussion of government matters, discussed in 19.62, and therefore as subject to the same requirement of reasonableness on the part of the defendant, a requirement which was not met on the facts of Carleton’s case: ibid at [201], [202]. 225. Guise v Kouvelis (1947) 74 CLR 102; cf Duane v Granrott [1982] VR 767 (FC); see further 19.56. 226. Godfrey v Henderson (1944) 44 SR (NSW) 447 at 454 per Jordan CJ (FC). 227. Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [79] per Gaudron, McHugh and Gummow JJ, at [185] per Kirby J. 228. Cornwall v Rowan (2004) 90 SASR 269 at [285]–[286] (FC). 229. The phrase used to distinguish this type of malice from that which is presumed on proof of the falsity of the defamatory statement: see Horrocks v Lowe [1975] AC 135 at 149; [1974] 1 All ER 662 at 669 per Lord Diplock (HL). 230. Clark v Molyneux (1877) 3 QBD 237 at 246 per Brett LJ (CA). 231. Horrocks v Lowe [1975] AC 135 at 149; [1974] 1 All ER 662 at 669 per Lord Diplock (HL). As to the matters which may be relied on to draw the necessary inference, see McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 (CA); Griffiths v Queensland Newspapers Pty Ltd [1993] 2 Qd R 367 (CA); Lindholdt v Hyer (2008) 251 ALR 514 (NSWCA). 232. Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431 at 454 per Lopes LJ (CA). 233. Association of Quality Child Care Centres of NSW v Manefield [2012] NSWCA 123 at [138]– [139] per Beazley JA; see also Collerton v MacLean [1962] NZLR 1045 at 1051–3 per McGregor J. 234. Wright v Woodgate (1835) 2 Cr M & R 573 at 577; 150 ER 244 at 246 per Parke B, quoted by Lord Shaw in Adam v Ward [1917] AC 309 at 349 (HL). 235. (1997) Aust Torts Reports 81-409 (NSWCA). 236. Ibid at 63,767–71 per Sheller JA.

237. Horrocks v Lowe [1975] AC 135 at 149; [1974] 1 All ER 662 at 669 per Lord Diplock (HL); Switzerland Australia Health Fund Pty Ltd v Shaw (1988) 81 ALR 111 at 125 per Woodward J (Fed Ct). 238. Muller v Hatton [1952] St R Qd 150 at 182 per Stanley J (FC). 239. Hudson v Mayes (1993) 173 LSJS 200 at 204 per Mohr J (SAFC). 240. Hanrahan v Ainsworth (1990) 22 NSWLR 73 (CA). 241. Cush v Dillon (2011) 243 CLR 298; 279 ALR 631 at [29] per French CJ, Crennan and Kiefel JJ; Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [76]; Horrocks v Lowe [1975] AC 135 at 149–50; [1974] 1 All ER 662 at 669 per Lord Diplock (HL). 242. Groom v Crocker [1939] 1 KB 194; [1938] 2 All ER 394 (CA). 243. For a consideration of circumstances in which recklessness may justify a finding of malice, see Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [84] per Gaudron, McHugh and Gummow JJ. 244. Shelmerdine v Mewett (1993) 170 LSJS 228 (SAFC); see also Pearce v Hailstone (1992) 58 SASR 240 (FC) (inaccurate repetition of another’s comments). 245. John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 at 634 per Brennan J (Fed Ct FC). 246. Stewart v Biggs [1928] NZLR 673 (CA). 247. Horrocks v Lowe [1975] AC 135; [1974] 1 All ER 662 (HL); Sorrenson v McNamara [2004] 1 Qd R 82 at [20] per McPherson JA. 248. Cornwall v Rowan (2004) 90 SASR 269 at [327] (FC). 249. Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [100] per Gaudron, McHugh and Gummow JJ, at [188] per Kirby J. 250. But will not necessarily do so: Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961. 251. News Media Ownership Ltd v Finlay [1970] NZLR 1089 (CA); see also Tuson v Evans (1840) 12 Ad & El 733; 113 ER 991. 252. [1975] AC 135 at 151; [1974] 1 All ER 662 at 670. 253. (2002) Aust Torts Reports 81-644 (NSWCA). 254. Ibid at [30] per Mason P, at [124] per Giles JA. 255. Guise v Kouvelis (1947) 74 CLR 102; see also Chapman v Lord Ellesmere [1932] 2 KB 431 (CA) (publication in The Racing Calendar privileged, but not that in The Times). 256. Lloyd-Jones v Allen [2012] NSWCA 230 at [66]–[74] per Nicholas J; Pearce v Hailstone (1992) 58 SASR 240 (FC). 257. Penton v Calwell (1945) 70 CLR 219; Adam v Ward [1917] AC 309 (HL). 258. Boxsius v Goblet Freres [1894] 1 QB 842 (CA); Edmondson v Birch & Co Ltd [1907] 1 KB 371 (CA). In Bryanston Finance Co Ltd v De Vries [1975] QB 703; 2 All ER 609 (CA), it was held that where publication is made only to the plaintiff and not to third parties, there is then a qualified privilege for the publication to clerks if it is fairly warranted by any reasonable occasion (not, as in that case, for a threatening and improper letter). 259. Lawless v Anglo-Egyptian Cotton Co (1869) LR 4 QB 262 at 267 per Mellor J. 260. Toogood v Spyring (1834) 1 Cr M & R 181 at 194; 149 ER 1044 at 1050 per Parke B.

261. Pittard v Oliver [1891] 1 QB 474 (CA). 262. Ainsworth v Burden (2003) 56 NSWLR 620, applying the Freedom of Information Act 1989 (NSW) s 64(1)(b). 263. Baker v Carrick [1894] 1 QB 838 (CA). 264. Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423 (HL); Webb v Bloch (1928) 41 CLR 331; Riddick v Thames Board Mills Ltd [1977] QB 881; 3 All ER 677 (CA); cf Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 at 196–7 (CA). 265. Egger v Lord Chelmsford [1965] 1 QB 248; [1964] 3 All ER 406 (CA); Cornwall v Rowan (2004) 90 SASR 269 at [448]–[453] (FC); see also Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [181], [183] per Kirby J; Defamation Act 1992 (NZ) s 20(2). 266. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503. 267. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 (CA). 268. SA s 28; ACT s 139A; NT s 27. 269. It is for the judge and not the jury to determine the issue arising under this paragraph: Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606. 270. (1985) 1 NSWLR 30 at 40, not considered on appeal (1989) 20 NSWLR 493 (CA) but quoted with approval in Austin v Mirror Newspapers Ltd [1986] AC 299 at 312 (PC). 271. Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1 at 15 per Miles CJ (aff’d Fed Ct, FC, 18 January 1988, unreported). 272. Austin v Mirror Newspapers Ltd [1986] AC 299 at 312 (PC). 273. Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 at 639–40 per Wilcox J (Fed Ct). 274. Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 382 per Hunt AJA (CA). 275. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797 (CA). 276. Section 22(2A) of the former New South Wales provision listed eight such factors, but it came into force only in February 2003, less than three years before the commencement of the uniform legislation. 277. See, eg, the Explanatory Note to the Defamation Bill 2005 (NSW) p 13. 278. [2001] 2 AC 127; [1999] 4 All ER 609; see further 19.67. 279. See John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373 (CA). 280. Uniform Act s 30(4); SA s 28(4); ACT s 139A(4); NT s 27(4). 281. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80. 282. (1997) 189 CLR 520; 145 ALR 96. 283. Ibid at 570; 115. 284. Ibid at 571; 115. 285. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 123–4; 124 ALR 1 at 13 per Mason CJ, Toohey and Gaudron JJ; at 185; 61 per Deane J. 286. Including the reasons behind a minister’s decision: Cornwall v Rowan (2004) 90 SASR 269 at

[629] (FC). 287. See the Theophanous case (1994) 182 CLR 104. It has been held to be arguable that a detective sergeant of police is included within this class: Lewandowski v Lovell (No 2) (1995) 13 WAR 468. 288. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80; Roberts v Bass (2002) 212 CLR 1; 194 ALR 161. 289. Brander v Ryan (2000) 78 SASR 234 at [110] (FC); cf Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 457–8 per Steytler J (statement by City Council about one of its tenants not within this protection). 290. Harkianakis v Skalkos (1999) 47 NSWLR 302. 291. Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at [18] per Doyle CJ, at [295] per Besanko J (FC). 292. Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196 at [7]–[12] per Debelle J, at [93] per Besanko J (FC) referring, inter alia, to Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 (CA); John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81–789 at [266]– [280] per Young CJ in Eq. 293. Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 574; 145 ALR 96 at 118; Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [107]. 294. Lange v Australian Broadcasting Corp (1997) 189 CLR at 574; 145 ALR 96 at 118. 295. John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789 at [89] per Giles JA, at [139] per Ipp JA (CA). 296. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [221] per Gillard AJA (CA); see also Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 458–9 per Steytler J (failure to check the correct name of a company about which a defamatory statement was made held not to be reasonable). 297. Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150 at [61] per Hoeben J. 298. For a thorough discussion of the development of the law in that country, see [New Zealand] Law Commission, ‘Defaming Politicians: A Response to Lange v Atkinson’, Report 64, 2000. 299. [1998] 3 NZLR 424. This is the only occasion on which the same person has lent his or her name to developments of the law of defamation on both sides of the Tasman. 300. Ibid at 467–8. 301. Ibid at 469–70. 302. The membership of the Privy Council and the House of Lords for the hearing of the two appeals was the same, and judgments were delivered on the same day. 303. [2001] 2 AC 127; [1999] 4 All ER 609; see further 19.67. 304. Lange v Atkinson [2000] 3 NZLR 385. 305. Hence a publication relating to the employees of a local government council is not protected by this defence: Vickery v McLean [2000] NZCA 338. 306. Lange v Atkinson [2000] 3 NZLR 385 at [47]. 307. NZLC, fn 298 above, [23]. 308. Ibid, [24].

309. [New Zealand] Law Commission, ‘Defaming Politicians: A Response to Lange v Atkinson’, Preliminary Paper 33, 1998. 310. For the text of the proposed s 19A, see the NZLC, fn 298 above, [11]. 311. [2001] 2 AC 127; [1999] 4 All ER 609. 312. Ibid, esp at 205; 626 per Lord Nicholls and the subsequent consideration of Reynolds’ case in Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783; 1 All ER 652 (CA) and Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] 4 All ER 1279. 313. For the details of the legislation, see the 3rd edition of this work, paras 18.26–18.27. 314. Defamation Act 1992 (NZ) s 29(a). 315. Or the Civil Law (Wrongs) Act 2002 (ACT) Pt 9.3 Div 9.3.1. 316. Uniform Act s 15(1); ACT s 127(1); NT s 14(1). 317. Uniform Act s 14(1); ACT s 126(1); NT s 13(1). 318. Uniform Act s 17(1); ACT s 129(1); NT s 16(1). 319. Uniform Act s 15(2); ACT s 127(2); NT s 14(2). 320. Uniform Act s 18; ACT s 130; NT s 17. 321. Which continues to apply in Australia: see Uniform Act s 24; SA s 22; ACT s 134; NT s 21. The defence is expressly provided for in the Defamation Act 1992 (NZ) s 22. 322. Cook v Ward (1830) 6 Bing 409; 130 ER 1338. 323. Collerton v MacLean [1962] NZLR 1045 at 1048-9 per McGregor J; Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 369 per Hunt J. 324. Frew v John Fairfax Publications Pty Ltd [2004] VSC 311. 325. Mihaka v Wellington Publishing Co (1972) Ltd [1975] 1 NZLR 10 at 17-18 per Haslam J. 326. See Orr v Isles [1965] NSWR 677 at 694 per Ferguson J (FC). 327. Jones v Brooks (1974) 45 DLR (3d) 413 (Sask QB). 328. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 524 per Dixon J. 329. Uniform Act s 33; SA s 31; ACT s 139D; NT s 30. 330. Defamation Act 2001 (ACT) s 15; Defamation Act 1889 (Qld) s 20; Defamation Act 1957 (Tas) s 9(2). 331. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (CA); Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 (NSWCA); Jones v Sutton (2004) 61 NSWLR 614 at [44]– [50] (CA). 332. Jones v Sutton (2004) 61 NSWLR 614 at [15] (CA); see also Ainsworth v Burden [2006] NSWCA 199 at [27]. 333. Jones v Sutton (2004) 61 NSWLR 614 at [62] (CA). 334. See, eg, Gorton v Australian Broadcasting Commn (1973) 1 ACTR 6. 335. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ, at [56] per Gaudron J. 336. Meckiff v Simpson [1968] VR 62; Maple v David Syme & Co Ltd [1975] 1 NSWLR 97.

337. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625 at [102]; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1 at [75]. 338. Uniform Act s 11; ACT s 123; NT s 10. For an economic analysis of the legislation, see Robilliard, ‘Jurisdiction and Choice of Law Rules for Defamation Actions in Australia following the Gutnick case and the Uniform Defamation Legislation’ (2007) 14 AILJ 185. 339. Uniform Act s 11(3); ACT s 123(3); NT s 10(3). 340. Limitation Act 1969 (NSW) ss 14B, 56A; Limitation of Actions Act 1974 (Qld) ss 10AA, 32A; Limitation Act 1936 (SA) s 37; Defamation Act 2005 (Tas) s 20A; Limitation Act 1958 (Vic) ss 5(1AAA), 23B; Limitation Act 2001 (WA) ss 15, 40; Limitation Act 1985 (ACT) s 21B; Limitation Act 1981 (NT) ss 12(2)(b), 44A. 341. Limitation Act 1950 (NZ) ss 4(6A), (6B). 342. (1966) 117 CLR 118 at 150; Jensen v Clark [1982] 2 NZLR 268 at 276 per Prichard J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61; 113 ALR 577 at 589. 343. See, eg, Crampton v Nugawela (1996) 41 NSWLR 176 (CA); Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 (FC). 344. Uniform Act s 22(3); in SA and the two territories, defamation actions were heard by a judge alone prior to the enactment of the uniform legislation: see the 3rd edition of this work, para 18.9. 345. Which still applies in New Zealand. 346. Uniform Act s 34; SA s 32; ACT s 139E; NT s 31. 347. Which may be done if the defamatory matter is such as to warrant an award of aggravated damages: see 19.81 and Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606 at [20] per McClellan CJ at CL. 348. Which applies even if the proceedings involve multiple causes of action: Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606 at [8]–[10]; Buckley v Herald & Weekly Times Pty Ltd (2009) 24 VR 129 (CA). 349. Uniform Act s 35; SA s 33; ACT s 139F; NT s 32. The cap was $339,000 at 8 June 2012; see Government Gazette (NSW) No 60, p 2369. 350. Uniform Act s 38(2); SA s 36(2); ACT s 139I(2); NT s 35(2). 351. Forsdike v Stone (1868) LR 3 CP 607 (bona fide mistake of identity). 352. Smith v Scott (1847) 2 Car & Kir 580; 175 ER 241. 353. Moore v Oastler (1836) 1 Mood & R 451n; 174 ER 155. 354. Scott v Sampson (1882) 8 QBD 491; Hobbs v A Tinling & Co Ltd [1929] 2 KB 1 (CA); and see Grobbelaar v News Group Newspapers Ltd [2002] 4 All ER 732 (HL) (jury award set aside and award of £1 substituted). 355. Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at [256] overruling Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16. 356. Plato Films Ltd v Speidel [1961] AC 1090; 1 All ER 876 (HL); O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 (CA); and see Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232. The common law rule has been augmented by the Defamation Act 1992 (NZ) s 30, which permits proof of ‘specific instances of misconduct by the plaintiff’: Television New Zealand Ltd v Ah Koy [2002] 2 NZLR 616 at [44] (CA). 357. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801, 805-6 (CA).

358. Australian Broadcasting Corp v McBride (2001) 53 NSWLR 430 (CA). 359. Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737 (HL). 360. Jensen v Clark [1982] 2 NZLR 268 at 279 per Prichard J. 361. Uniform Act s 38(1)(a); SA s 36(1)(a); ACT s 139I(1)(a); NT s 35(1)(a). 362. Uniform Act s 38(1)(b); SA s 36(1)(b); ACT s 139I(1)(b); NT s 35(1)(b). 363. Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1. And see Watts v Times Newspapers Ltd [1997] QB 650; [1996] 1 All ER 152 (CA) (apology directed to A found to be defamatory of B). 364. Lawrie v NT News Services Pty Ltd (1985) 82 FLR 70 (NTSC). 365. McRae v SA Telecasters Ltd (1976) 14 SASR 162. 366. Uniform Act s 38(1)(c), (d), (e); SA s 36(1)(c), (d), (e); ACT s 139I(1)(c), (d), (e); NT s 35(1)(c), (d), (e). 367. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474. 368. Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 737-8 per Hunt J. 369. Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1 at 32-3 per Miles CJ; (aff’d, Fed Ct, FC, 18 January 1988, unreported); Humphries v TWT Ltd (1993) 120 ALR 693 at 706 (Fed Ct, FC). 370. This power is retained in the Australian legislation: Uniform Act s 35(2); SA s 33(2); ACT s 139F(2); NT s 32(2). 371. See Uniform Act s 36; SA s 34; ACT s 139G; NT s 33 (defendant’s state of mind relevant only in so far as it affects the harm suffered by the plaintiff); Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606 at [28] per McClellan CJ at CL. 372. David Syme & Co Ltd v Mather [1977] VR 516 (FC); Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 248-50 per Glass JA (CA); Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 495-7 per Hunt J; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 per Samuels JA (CA). 373. McKenzie v Mergen Holdings Pty Ltd (1992) 7 BR 350 at 361 per Grove J (NSWSC); Association of Quality Child Care Centres of NSW v Manefield [2012] NSWCA 123 at [146] per Beazley JA. 374. Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [395]–[397] (CA). 375. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66; 113 ALR 577 at 593; cf Clark v Ainsworth (1996) 40 NSWLR 463 (CA); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [399] (CA). 376. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185, aff’d [1969] 1 AC 590; [1967] 3 All ER 523 (PC); Taylor v Beere [1982] 1 NZLR 81 (CA); the provision, in s 28 of the Defamation Act 1992 (NZ), that ‘punitive’ damages are available only when ‘the defendant has acted in flagrant disregard of the rights of the plaintiff’ is not regarded as having made any substantial difference in the law: Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 (CA). 377. Uniform Act s 37; SA s 35; ACT s 139H; NT s 34. 378. See generally Rolph ‘Showing Restraint: Interlocutory Injunctions in Defamation Cases’ (2009) 14 MALR 255; Bartl and Nicol ‘The Grant of Interlocutory Injunctions in Defamation Cases in Australia’ (2006) 25 U Tas L Rev 156.

379. See 27.51. 380. This judicial reluctance is reinforced, in New Zealand, by s 14 of the New Zealand Bill of Rights Act 1990, which grants a right of freedom of expression: Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406 (CA). 381. Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; 229 ALR 457 at [18]–[19] per Gleeson CJ and Crennan J, at [73]–[83] per Gummow and Hayne JJ; TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 (CA). 382. The phrase used by Ormiston J in National Mutual Life Assoc of A’asia Ltd v GTV Corp Pty Ltd [1989] VR 747 at 754; approved on appeal [1989] VR at 764-5 (FC) and concurred in by Hunt J in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 161. What follows is an adaptation, in the light of judgments in subsequent cases, of rules of practice adopted in Bonnard v Perryman [1891] 2 Ch 269 (CA). 383. Australian Broadcasting Corp v Hanson (CA(Qld), 28 September 1998, BC9805224, unreported). 384. Failure on the plaintiff’s part to satisfy this test led to the refusal of an injunction in the National Mutual case [1989] VR 747 (FC); see also Lovell v Lewandowski [1987] WAR 81 (FC); New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4 (CA); Ron West Motors Ltd v Broadcasting Corp of NZ (No 2) [1989] 3 NZLR 520 (CA); Jakudo Pty Ltd v SA Telecasters Ltd (1997) 69 SASR 440 (FC). 385. Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; 229 ALR 457 at [33] per Gleeson CJ and Crennan J, at [89] per Gummow and Hayne JJ.

PART VI Protection of Trading or Business Interests Chapter 20

The Economic Torts in General

Chapter 21

Intentional and Unjustifiable Interference with Trade or Business

Chapter 22

Statutory Protection against Unfair Business Practices

Chapter 22

Injurious Falsehood, Passing Off and Deceit

[page 597]

CHAPTER 20 The Economic Torts in General

Introduction 20.1 This Part deals with a variety of torts, one common factor of which is that they are concerned with intentional interference with the plaintiff’s economic interests. It is because they are concerned with the intentional activities of the defendant that they are treated separately from the negligent infliction of economic loss, discussed in Chapter 13. Another common factor of the torts considered in this Part is that each of them derives from the action on the case, and they are, for that reason, regarded as distinct from the other intentional torts discussed in Part II, which originated in trespass and not case. The various torts described are: inducing breach of contract; unlawful interference with trade; intimidation; conspiracy; the action for loss of services; injurious falsehood; passing off; and deceit.

20.2 Although there is a thread of commonality running through these wrongs, the point must be made at the outset that, for at least two reasons, a

distinction must be drawn between the first four of the above actions and the last three (the action for loss of services, it will be argued in 20.22, is anomalous, and ought to be abolished). One such difference depends upon the nature of the complaint made by the plaintiff. At a very general level, it may be said that, in an action for inducing breach of contract, unlawful interference with trade, intimidation or conspiracy, the focus is upon the loss suffered by the plaintiff, rather than any gain made by the defendant. The plaintiff’s complaint is that his or her business, trade or profession, whether actual or prospective, has been seriously interfered with by reason of the defendant’s pursuit of possibly quite different aims, such as the maintenance of a union ‘closed shop’, or the continuation, in its existing form, of international test cricket. On the other hand, the actions for injurious falsehood, passing off and deceit [page 598] are designed to prevent the defendant from making a gain at the expense of the plaintiff. The latter’s complaint is that his or her business has a quality which the defendant denies (injurious falsehood), that the defendant has appropriated the way in which the plaintiff presents wares to the public (passing off), or that the defendant has profited from deceiving the plaintiff.

20.3 A second distinction between the two classes of tort is the effect of legislative incursions into the field. With respect to the first four of the torts listed above, it is only in isolated instances that a parliament has had any effect on the law as developed by the courts.1 This is in stark contrast to the situation regarding the torts of injurious falsehood, passing off and deceit. As will be explained in 22.4, these torts have diminished markedly in importance with the enactment of the Trade Practices Act 1974 (Cth) s 52 and the reenactment of that provision as the Australian Consumer Law s 18 and the passing of a complementary provision in the Fair Trading Act 1986 (NZ) s 9. Section 18, by proscribing conduct, in trade or commerce, that is ‘misleading or deceptive or is likely to mislead or deceive’, has very largely done away with the need to retain the separate torts of injurious falsehood, passing off and deceit. However, because these legislative provisions virtually replace the individual torts, it has been considered proper to include,

in Chapter 22, a discussion of the judicial interpretation of the sections as they affect the causes of action formerly provided by those torts.2

20.4 While the torts of injurious falsehood, passing off and deceit have, in effect, been unified by being subsumed within the legislation just referred to, no such generalising influence has developed in respect of inducing breach of contract, unlawful interference with trade, intimidation and conspiracy. Although a plaintiff will often allege, in the statement of claim, the commission of more than one such tort, each remains a separate cause of action, requiring different elements for its proof and subject to differing defences. There have been judicial attempts, spanning three centuries, to encompass the economic torts, or some of them, within one general principle of liability. The first such attempt was by Lord Holt CJ, in Keeble v Hickeringill,3 decided in 1706. The plaintiff had alleged that the defendant, whose property adjoined that of the plaintiff, had repeatedly fired guns on his own land in order to scare wildfowl away from the plaintiff’s decoy pond. Lord Holt held that the plaintiff had a cause of action. He acknowledged its novelty but, relying on cases which would now be regarded as founding an action for injurious falsehood and for intimidation,4 stated the general proposition that ‘he that hinders another in his trade or livelihood is liable to an action for so hindering him’.5 This statement, as it stands, is clearly put far too [page 599] widely. It would suggest that one who hinders another’s livelihood by setting up a business in lawful competition is guilty of a tort, a proposition which Lord Holt himself accepted as fallacious.6

20.5 A further attempt at generalisation was made towards the end of the nineteenth century by Bowen LJ, in the English Court of Appeal in Mogul Steamship Co Ltd v McGregor Gow & Co,7 in which the plaintiff sought, but failed to obtain, legal redress to break the cartel set up by the defendants. His Lordship suggested that fraud, intimidation and inducing a breach of contract were instances of a wider form of liability. This latter he described by saying that ‘intentionally to do that which is calculated in the ordinary course of

events to damage, and which does, in fact, damage another in that other person’s property or trade, is actionable if done without just cause or excuse’. Although these views were not dissented from when that case went to the House of Lords,8 they were given short shrift by a majority of the House of Lords in Allen v Flood.9 Lord Herschell, for instance, categorised them as no more than dicta, and expressed the opinion that if Bowen LJ had meant ‘that a man is bound in law to justify or excuse every wilful act which may damage another in his property or trade, then … the proposition is far too wide’.10 The majority of the House, in Allen v Flood, were concerned to see that liability accrued only if the plaintiff could demonstrate that a legal right (and not, as was the case there, a mere expectation of continuing in employment) had been infringed, and, more importantly, that the defendant had acted in a way that was regarded as unlawful. It is largely because of that decision that the common law still retains the series of separate torts referred to at the outset of this chapter.

20.6 In the absence of a unifying ground of liability having been developed by the courts — as distinct from that stated by the legislature in the Australian Consumer Law s 18 — it is necessary to consider in turn each of the specific torts referred to at the beginning of this chapter. However, it has been mentioned in 20.2 that most of them fall, broadly speaking, into two categories. As a consequence the remainder of this Part is structured as follows. The next section of this chapter (20.8–20.26) is concerned with the action for loss of services; it is the purpose of that section to demonstrate that the action is anomalous and should be abolished. Chapter 21 deals with those torts which may be regarded as coming within the rubric of an intentional and unjustifiable interference with trade or business — inducing breach of contract, unlawful interference with trade, intimidation and conspiracy. Chapter 22 is concerned with the application of the Australian Consumer Law s 18 and its New Zealand counterpart to those activities which might formerly have given rise to an action for injurious falsehood, passing off and deceit, while Chapter 23 briefly considers those torts, principally for the purpose of demonstrating the reasons for their having been overtaken by the legislation which is the subject of Chapter 22. [page 600]

20.7 One further introductory comment must be made. In 1966, the High Court of Australia, in Beaudesert Shire Council v Smith,11 developed a new cause of action whereby one who suffered loss or damage as the inevitable consequence of the unlawful, intentional and positive acts of another would be entitled to recover for that loss. The decision met with almost universal criticism from academic commentators,12 and was not accepted as forming part of the law in either New Zealand13 or England.14 In Northern Territory v Mengel,15 the High Court accepted that the Beaudesert principle was not supported by authority and ran counter to the trend of legal development and overruled the decision.

Action for Loss of Services 20.8 The actio per quod servitium amisit originated in medieval England, being based on the conception at that time of a master’s proprietary, or quasiproprietary, rights in his servants. If the servant was injured as the result of the actions of another, so as to be unable to perform the required services, the master was seen himself to have suffered injury by the loss of those services. If the defendant caused the injury by the direct application of force to the servant (that is, a trespass to the servant), the master’s action also lay in trespass, since his loss was regarded as being caused directly by the wrongdoer, whereas if the injury had been brought about by the indirect application of force (giving the servant a right of action in case), the master’s action against the wrongdoer also lay in case, as an exception to the general principle that there could be no action founded upon, and dependent upon, another’s actions in case.16 Over the last 100 years, all the reported cases in which the plaintiff has relied on this action have involved the negligent infliction of harm to the employee.

20.9 Although the action presently under discussion was a basis for the decision in Lumley v Gye,17 which was the progenitor of the tort of inducing breach of contract (see 21.5), the development of the two torts has been such that liability under each is quite distinct from the other. The action for loss of services lies even though the defendant does not know of the employee’s contract of service, and has been no more than negligent in injuring the employee. The tort of inducing breach of contract, however, is not committed unless the defendant knows, at least in general terms, of the contract and

intends, by interference with its performance, to cause economic harm to the plaintiff: see 21.10. [page 601]

20.10 The action for loss of services has been abolished by legislation in England,18 New Zealand,19 British Columbia20 and New Brunswick.21 The action has also been abolished in New South Wales, but only with respect to injuries suffered by an employee in a motor accident22 or at the hands of a fellow employee.23 The action is no longer available in Victoria if the employee is injured in a road accident,24 and the Northern Territory schemes of no-fault compensation in respect of both road and industrial accidents abolish the right to sue ‘in respect of’ the injury sustained,25 a form of words which would appear to include a claim by an employer for loss of services.26 In Queensland27 the action is not available unless the employee’s damages for pain and suffering are assessed as being at least $35,000, and even in such circumstances the damages are limited to three times average weekly earnings for every week that the employee is incapacitated.28

20.11 At common law29 the action does not lie if the wrongdoer has killed, rather than injured, the plaintiff’s employee.30 Although in such a case the employer has suffered a loss, the only right of action recognised as arising on the death of another is that granted under the local equivalents of Lord Campbell’s Act to the dependent members of the deceased’s family: see 11.33. The action is also not maintainable when the employee, although uninjured, is unable to provide the services of employment because of the need to care for a child or other dependant who has been injured by another’s negligence.31 But in light of the recognition in other circumstances of claims for purely economic loss caused by the defendant’s negligence (see 13.45ff), the Western Australian Court of Appeal held that the continued existence of the action is directly relevant to establishing a duty being owed by an employer to take reasonable care to avoid causing purely economic loss by injury to its employee.32 [page 602]

However, on further appeal the High Court held33 that there is no necessary connection between liability in negligence and liability under this action, as the latter may be committed by any wrong done to the employee, be it in trespass or negligence. It followed, in the view of the High Court, that the destruction of this distinct cause of action was an activity best left to the legislatures.34 There are three principal issues in relation to the action for loss of services which require discussion: the nature of the relationship between the injured person and the one who seeks recovery under the action; the measure of damages recoverable; and the desirability (or otherwise) of the continued availability of the action.

The nature of the relationship 20.12 Until the end of the nineteenth century, little thought appears to have been directed to the type of relationship between the injured person and the plaintiff which was sufficient to found the action. Although a claim by the manager of an opera house, for the loss of services of a singer, was denied on the ground that the singer was not a servant of the plaintiff,35 the action was accepted without question in relation to an injured person described as a ‘traveller’,36 as well as one who was an apprentice.37 In the first half of the twentieth century, however, there was a marked judicial aversion to the action,38 leading to a restriction on its availability, but this attitude has subsequently undergone a considerable change. As the authorities currently stand, a distinction must be drawn between those engaged in the private sector and those in the public sector.

Persons engaged in the private sector 20.13 With regard to those engaged in the private sector (that is, by a company, sole trader, etc), the plaintiff need not show that there is a contract of service between itself and the injured person, but only that it has lost services de facto provided to it.39 And, so long as the necessary relationship of ‘master’ and ‘servant’ is established — so long, in other words, as it can be shown that the plaintiff employer is able to control and direct the activities of the injured person — the position held by the latter in the organisation is

immaterial. Prior to the abolition of the action in England, the Court of Appeal in that country expressed the view that the action applied only when the injured person was a domestic, or menial, servant, who in an earlier age had formed part of the master’s household.40 However, this opinion was rejected, as being historically inaccurate, [page 603] both by the High Court41 and the New Zealand Court of Appeal42 (although in each case the court was concerned with rights in relation to a person engaged in the public sector). Relying on the approach taken by the High Court, the New South Wales Court of Appeal held, in Marinovski v Zutti Pty Ltd,43 that the respondent company was entitled to claim for the loss of the services of its de facto governing director (and, semble, of a de jure governing director). And, in Argent Pty Ltd v Huxley,44 two companies the shareholding of which was held exclusively by the injured person and his family were held to have the right to claim, on the basis that the injured director had been paid a salary and performed functions in the nature of those of an employee as distinct from those of an agent or independent contractor.45

20.14 In view of the rejection by the Supreme Court of Canada46 of the historical analysis adopted by the English Court of Appeal, it is to be assumed that, in that country also, the only relevant consideration for success of the action is the establishment of the relationship of employer and employee between the plaintiff and the injured person.47

20.15 In South Australia, the Civil Liability Act 1936 s 66 provides a cause of action which is closely akin to that under discussion. If spouses or domestic partners48 are engaged together in the conduct of a business, the carrying on of which is impaired by the tortiously caused injury or death of one of them, the other may recover compensation for that impairment from the wrongdoer.49 The section was no doubt enacted in order to diminish the effect of the common law rule that a partner has no claim on the actio per quod servitium amisit50 because the necessary relationship of employee and

employer does not exist between partners.51 However, the provision also applies where, despite the lack of any formal working relationship between spouses or domestic partners, the injured one fulfils tasks in the business similar to those of an employee52 and, unlike at common law (see 20.11), is available on the death of one spouse.53 [page 604]

Persons engaged in the public sector 20.16 If the injured person was, prior to the injury, engaged in the public sector of employment, either by a government or statutory corporation, there is a measure of doubt as to the circumstances in which the actio per quod servitium amisit is available. In Commonwealth v Quince,54 a bare majority of the High Court held that the federal government is not entitled to sue for the loss of the services of a member of the armed forces, the reasoning being that such a person is in the service of the Crown, and not a servant of the Crown.55 That decision was subsequently applied, in A-G (NSW) v Perpetual Trustee Co Ltd,56 to deny the Crown in right of New South Wales a claim for the loss of the services of a member of the police force of that state.57 But it is suggested that the only other class of person for whose loss of services the Crown could not bring the action are the holders of specific offices created by statute. In Commissioner for Railways (NSW) v Scott,58 the High Court held that the appellant was entitled to sue on this tort in respect of the loss of the services of an engine driver and, in the Perpetual Trustee Co case,59 Dixon J expressed the opinion that the action would be maintainable in respect of the loss of the services of, at least, a person classified as an employee under what is now the Public Service Act 1999 (Cth) or a junior employee of a statutory body or corporation. Furthermore, if the law were to be consistent with the attitude taken to claims in respect of the loss of services of those in the private sector, there is no reason to doubt that the Crown might bring the action if a member of the senior management of the public service were injured by another’s negligence. Even the secretary of a government department is subject to the direction and control of the relevant

minister and might, for these purposes, be regarded as a servant of the Crown rather than in the service of the Crown.

Measure of damages60 20.17 As with any other action in tort, the purpose of an award of damages in this action is to seek to put the employer in the position it was before the injury to the employee. The employer is thus entitled to recover the pecuniary loss suffered by reason of the deprivation of the employee’s services.61 But the employer, like [page 605] any other plaintiff, is obliged to take whatever steps are reasonable to mitigate that loss62 so that if, for instance, on an employee being injured, the employer makes no payment to the injured employee and hires a substitute of equal skill at the same wage, the employer has suffered no loss and will be unable to claim in this action.63

20.18 The measure of the plaintiff’s loss will obviously vary, depending upon the circumstances of the particular case, but, in practical terms at least, a distinction may be drawn between the small business concern which loses the services of an employee who is a vital part thereof, and a large organisation which is deprived of the services of one out of a very great number of workers. In the case of the former, the most important element of the damage suffered by the employer is the profits of which it has been deprived (or the trading losses it has incurred) as the result of no longer having the benefit of the injured employee’s skill, expertise or leadership. Such damage is recoverable, whether the employer be the leader of a two-man vaudeville act,64 or what is virtually a ‘one person’ company whose governing director has been injured.65 But, in conformity with general principles of causation, the employer will be unable to recover for a loss of profits which is attributable to reasons other than the deprivation of the employee’s expertise.66

20.19 If the employer is a large organisation with a considerable number of

employees, it will be virtually impossible for it to prove that the loss of one employee’s services has led to any appreciable diminution in its profits. However, it may well suffer a measurable loss in the payment to the injured employee of sick pay, together with such items as pay-roll tax and workers’ compensation insurance premiums which are calculated by reference to the amount of that sick pay. The issue of whether the employer is entitled to recover this loss in an actio per quod servitium amisit is one that has been the subject of conflicting decisions in England,67 Canada68 and New Zealand69 and of conflicting dicta in the High Court,70 the weight of all of which is in favour of recovery. Notwithstanding this divergence of judicial opinion, however, the New South Wales Court of Appeal has consistently held that payments made to an injured employee who is unable to work, whether the employer is a large organisation71 or a small concern,72 are recoverable. The reasoning adopted by that [page 606] court is that the amount is an expenditure reasonably incurred by the employer, for which it receives no corresponding benefit, and is sufficient evidence of the monetary value of the services lost.

20.20 Whether the employing organisation is large or small, if the injured employee is within the ambit of the workers’ compensation legislation, the employer will also be required to pay the benefits fixed by that legislation. However, that statutory scheme, universally in Australia,73 gives to the employer a right of indemnity against a third party who is legally responsible for the injuries suffered by the employee. The better view would appear to be that this statutory right replaces any right to damages under the common law action.74

20.21 If the injured employee was contributorily negligent, it appears that, in the absence of express statutory provision, the employer will not suffer a reduction of damages by reason thereof. Prior to the enactment of the apportionment legislation,75 the High Court held that contributory negligence was not a defence in the closely analogous action by a husband for the loss of his wife’s consortium,76 and there is no reason to doubt that the same position

applies to oust the application of the statutory provisions for apportionment. However, in South Australia and the two territories, that legislation expressly provides for a reduction of the damages otherwise available to an employer if the employee’s injuries have been caused partly by his or her own fault.77

The future of this tort 20.22 Although the High Court has very recently affirmed the continued existence of this action in Australia,78 it is strongly arguable that it no longer serves any useful purpose, and that the state and territory legislatures in Australia follow the lead of the United Kingdom and New Zealand parliaments and abolish the action.

20.23 The argument for the abolition of the tort is not based on the fact that it is anachronistic. Although the action originated at a time when a master was thought to have a proprietary, or quasi-proprietary, interest in his servants, it has been able to accommodate the fact that employment now depends on contract and not status. The reason for urging the removal of this cause of action is its anomalous nature. First, the action is derivative; the employer’s right to claim damages depends not only on an injury suffered by it, but also on a wrong done to the employee. Although [page 607] such derivative, or secondary, claims are permitted in an action under the local equivalents of Lord Campbell’s Act (see 11.32), they are generally not allowed at common law; even in those which might appear to be derivative, such as claims for pure mental harm (see 7.41) and by rescuers (see 7.25), the plaintiff must show that a duty was owed directly to him or her.

20.24 Secondly, the tort is arbitrary. An employer is able to claim, but a person in partnership with another, who could well suffer a very real loss by reason of that other’s being injured, is not permitted to bring an action. Furthermore, the employer is able to claim only for an injury to an employee, and not for the possibly greater loss flowing from that employee’s death.

20.25 Thirdly, if the employer is a large organisation (including, for these purposes, the Crown) the major part of whose damages is sick pay received by the employee, there seems to be little point in allowing this loss to be shifted from that employer on to the defendant. The employee is likely to be entitled to sick pay when he or she is unable to provide the services of employment for a wide range of reasons, and the cost of providing that pay will have been incorporated into the employer’s cost structure, to be passed on to the consumers of its goods or services. Thus, the action presently under consideration does not, in these circumstances, provide any more appropriate means of spreading a particular loss.

20.26 The one circumstance in which it might appear that the action retains some relevance is that in which the employer is a relatively small concern and the injured employee is an important member thereof, as was the situation in Marnovski v Zutti Pty Ltd.79 The damages recovered by the respondent employer were (1) salary paid to the employee during the period that he was unable to provide services to the company, and (2) the profits lost by the company as a result of the employee no longer being able to provide direction and leadership. But with regard to the former of these, if the company had not paid the salary, the employee would have been able to recover the same amount, as part of his own damages in an action against the wrongdoer. And, with regard to the latter, the employee, as a shareholder in the employing company, had also suffered a compensable loss, by reason of a reduction in the profits available for distribution to the shareholders.80 Although the defendant would not be obliged to recompense both the employing company and the shareholder, it may be persuasively argued that it would be preferable to abolish the employer’s right of action and leave the injured employee to recover the sum total of the loss that he or she has suffered.81 _______________ 1.

The relevant legislative provisions are the Competition and Consumer Act 2010 (Cth) ss 45D– 45DD which seek to regulate secondary boycotts.

2.

Section 18 of the Australian Consumer Law, and its New Zealand equivalent, also replace, to a large extent, the rights of action available at common law and in equity to a contracting party who has been induced into a contract by a misrepresentation. For a discussion of that aspect of the legislation, see Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aus ed, 2012, Ch 11, p 564ff.

3.

The fullest report of the judgment is to be found in 11 East 574n; 103 ER 1129; see also 11 Mod

73, 130; 88 ER 898, 945; 3 Salk 9; 91 ER 659; Holt 14, 17, 19; 90 ER 906, 907, 908. 4.

These two torts have acquired those names only within the last 100 years or less: see 23.2 and 21.31 respectively.

5.

11 East at 575; 103 ER at 1128.

6.

11 East at 576; 103 ER at 1128.

7.

(1889) 23 QBD 598 at 613–14.

8.

[1892] AC 38; for a discussion of the opinions expressed in the House of Lords in the Mogul case on the principle stated by Bowen LJ, see Allen v Flood [1898] AC 1 at 75–8 per Lord Halsbury LC.

9.

[1898] AC 1.

10.

Ibid at 139; see also at 180 per Lord James; cf the support given to the views of Bowen LJ by Lord Halsbury (at 75–6) and by some of the judges who were asked to advise the House: [1898] AC at 41–2 (North J), at 48 (Wills J), at 57 (Grantham J).

11.

(1966) 120 CLR 145.

12.

See Dworkin and Hart, ‘The Beaudesert Decision — Raising the Ghost of the Action Upon the Case’ (1967) 40 ALJ 296 and 349; Dworkin, ‘Intentionally Causing Economic Loss — Beaudesert Shire Council v Smith Revisited’ (1974) 1 Monash ULR 4; Heydon, ‘The Future of the Economic Torts’ (1975) 12 UWA L Rev 1 at 16-17; Standish, ‘Beaudesert Shire Council v Smith’ (1967) 6 MU L Rev 225; Fridman, ‘Interference with Trade or Business — Part I’ (1993) 1 Tort L Rev 19 at 34–8; and the first edition of this work, pp 682-7.

13.

Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 at 339–40 per Richardson J (CA); Van Camp Chocolates Ltd v Aulsebrooks Ltd [1984] 1 NZLR 354 at 359–60 (CA).

14.

Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 187–8; [1981] 2 All ER 456 at 463 per Lord Diplock (HL).

15.

(1995) 185 CLR 307; 129 ALR 1.

16.

See Martinez v Gerber (1841) 3 M & G 88; 133 ER 1069. The history of the action is discussed by Gareth Jones, ‘Per Quod Servitium Amisit’ (1958) 74 LQR 39.

17.

(1853) 2 E & B 216; 118 ER 749; the court relied principally on those cases in which the master had lost the services of a servant by reason of the enticement of the latter, rather than physical injury to the servant.

18.

Administration of Justice Act 1982 (UK) s 2(c), adopting the recommendations of the Law Commission, Report on Personal Injury Litigation — Assessment of Damages, Law Com 56, 1973, [142]–[150].

19.

Accident Compensation Act 1972 (NZ) s 5(2), as substituted by the Accident Compensation Amendment Act (No 2) 1973 (NZ) s 5 (the repeal of those Acts by the Accident Compensation Act 1982 (NZ), without replacing the substance of the earlier provision, does not affect that abolition: Acts Interpretation Act 1924 (NZ) s 20(f)).

20.

Law and Equity Act, RSBC 1996, chap 253, s 63 (the application of that section cannot be evaded by claiming that the wrongdoer owed a duty of care directly to the employer: D’Amato v Badger (1996) 137 DLR (4th) 129 (SCC).

21.

Law Reform Act, RSNB 2011, c184.

22.

Motor Accidents Compensation Act 1999 (NSW) s 142.

23.

Employees Liability Act 1991 (NSW), s 4.

24.

Transport Accident Act 1986 (Vic) s 93A.

25.

Motor Accidents (Compensation) Act 1979 (NT) s 5; Workers Rehabilitation and Compensation Act 1986 (NT) s 52.

26.

Cardakliya v Mt Isa Mines Ltd [1995] 1 Qd R 500 (CA); and see Ure v Humes Ltd [1969] QWN 25, dealing with similar phraseology in a limitation statute.

27.

Civil Liability Act 2003 (Qld) s 58.

28.

The minimum sum is set by the Civil Liability Regulation 2003 (Qld) reg 5A and adjusted to take account of monetary inflation. For injuries arising after 1 July 2011, the minimum is $36,400.

29.

Cf Civil Liability Act 2003 (Qld) s 58(1)(a), which permits the recovery of damages for loss of services when the employee has died.

30.

Barclay v Penberthy (2012) 291 ALR 608 at [22]–[27] per French CJ, Gummow, Hayne, Crennan and Bell JJ, at [80]–[84] per Heydon J, at [178] per Kiefel J.

31.

Paul Chapman Building Pty Ltd v Boyd (1992) 27 NSWLR 255.

32.

Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 at [107]–[110] per McLure P; cf Scott v Bowyer [1998] 1 VR 207 (CA) at 219 (workers’ compensation legislation regarded as providing an exhaustive and exclusive remedy in the circumstances, hence no duty of care found).

33.

Barclay v Penberthy (2012) 291 ALR 608.

34.

Ibid at [37] per French CJ, Gummow, Hayne, Crennan and Bell JJ; see also at [105] per Heydon J, at [155] per Kiefel J.

35.

Taylor v Neri (1795) 1 Esp 386; 170 ER 393.

36.

Martinez v Gerber (1841) 3 M & G 88; 133 ER 1069.

37.

Hodsoll v Stallebrass (1840) 11 Ad & E 301; 113 ER 429.

38.

It was described as anomalous in, eg, Admiralty Commissioners v SS Amerika [1917] AC 38 at 60 per Lord Sumner and Commonwealth v Quince (1944) 68 CLR 227 at 244 per Starke J, at 250 per McTiernan J; see also A-G (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 288 per Fullagar J and, on appeal, [1955] AC 457 at 490; 1 All ER 846 at 858 (PC), in which it was said that the action was not to be extended beyond the limits established by binding authority.

39.

A-G (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 248 per Dixon J (aff’d [1955] AC 457 at 483; 1 All ER 846 at 854 (PC)).

40.

Inland Revenue Commissioners v Hambrook [1956] 2 QB 641; 3 All ER 338.

41.

Commr for Railways (NSW) v Scott (1959) 102 CLR 392.

42.

A-G (NZ) v Wilson & Horton Ltd [1973] 2 NZLR 238.

43.

[1984] 2 NSWLR 571; see also Gregory v Caltex Oil (Australia) Pty Ltd (1994) Aust Torts Reports 81-306 at 61,759–60 per Shepherdson J (Qld SC); Tippett v Fraser (1999) 74 SASR 522 at [91] per Wicks J.

44.

[1971] Qd R 331, aff’d sub nom Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432 (the earlier decisions of the English Court of Appeal and the High Court were not referred to, the principal issue being the measure of damages).

45.

Cf Baldi & Fletcher Pty Ltd v Rabmar Pty Ltd (1988) 25 IR 101 (NSW CA) (plaintiff companies

failed to establish the necessary relationship in respect of an injured person whose services had been made available to the plaintiff companies by a third company). 46.

R v Buchinsky (1983) 145 DLR (3d) 1 (the action was by the Crown, in respect of an injured member of the armed forces, and hence the decision is not directly in point to the issue under discussion).

47.

Prior to the Supreme Court decision, the position had been far from clear: see Hansen and Mullen, ‘Private Corporations in Canada: Principles of Recovery for the Tortious Disablement of Shareholder/ Employees’ in Klar (ed), Studies in Canadian Tort Law, 2nd series, 1977, pp 218– 22.

48.

But not, eg, siblings: Rolton v Dalgety Farmers Ltd (1992) 58 SASR 581 (FC).

49.

But the section in no way limits the right of the injured partner to recover the losses that he or she has suffered: Cole v Ellis (1992) 60 SASR 481 at 495 per Mullighan J (aff’d, SAFC, 13 May 1993, unreported).

50.

Ellis v Joseph Ellis & Co [1905] 1 KB 324.

51.

See Chorlton v Walker (1983) 35 SASR 47 at 57–8 per Legoe J.

52.

Chorlton v Walker (1983) 35 SASR 47.

53.

Lott v Cameron (1983) 35 SASR 61 (FC).

54.

(1944) 68 CLR 227.

55.

Cf the position in Canada. Because the Crown Liability and Proceedings Act, RSC 1985, Chap C-50, s 36, declares that members of the armed forces and of the federal police are deemed, for the purposes of proceedings by or against the Crown, to be servants of the Crown, the action lies at the suit of the federal government: R v Buchinsky (1983) 145 DLR (3d) 1 (SCC). The equivalent legislation in Australia (see 26.57 at fn 269) is worded differently.

56.

(1952) 85 CLR 237, aff’d [1955] AC 457; 1 All ER 846 (PC).

57.

See also Groves v Commonwealth (1982) 150 CLR 113 at 124; 40 ALR 193 at 200 per Stephen, Mason, Aickin and Wilson JJ, who regarded it as ‘well settled, despite powerful dissent, that an action per quod does not lie at the suit of the Crown’ in relation to members of the armed services and police force.

58.

(1959) 102 CLR 392; see also A-G (NZ) v Wilson & Horton Ltd [1973] 2 NZLR 238 (CA), in which the action was upheld in relation to the loss of the services of a driver employed by the Government Railways Department.

59.

(1952) 85 CLR 237 at 249–50.

60.

See generally Barclay v Penberthy (2012) 291 ALR 608 at [54]-[66] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Luntz, Assessment of Damages, 4th ed, 2002, 10.3.1–10.3.7.

61.

See, eg, the comments of Fullagar J in both A-G (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 289–90 and Commr for Railways (NSW) v Scott (1959) 102 CLR 392 at 408–9. The damages are not subject to the monetary cap imposed by the Civil Liability Act 2002 (NSW) s 12 (see 11.12) but Part 2 of that Act otherwise applies to such a claim: Chaina v The Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533.

62.

See generally 27.19 and, in relation to this tort, Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 at 582 per Hutley JA, at 587 per Glass and Samuels JJA (CA).

63.

Since the employer’s action, in respect of injuries caused by negligence to the employee, was in

case and not trespass (see 20.9), damage is of its gist. 64.

Mankin v Scala Theadrome Co Ltd [1947] KB 257.

65.

Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432; Tippett v Fraser (1999) 74 SASR 522 at [101] per Wicks J.

66.

Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 (CA).

67.

Bradford Corporation v Webster [1920] 2 KB 135; A-G v Valle-Jones [1935] 2 KB 209 (payments recoverable).

68.

R v Richardson and Adams [1948] 2 DLR 305 (SCC) (by majority, payments recoverable); cf R v Buchinsky (1983) 145 DLR (3d) 1 (SCC) (parties agreed that payments recoverable).

69.

A-G (NZ) v Wilson & Horton Ltd [1973] 2 NZLR 238 (CA) (payments not recoverable).

70.

Compare Commonwealth v Quince (1944) 68 CLR 227 at 239 per Latham CJ, at 246–7 per Starke J, at 259 per Williams J (payments recoverable) with the views of Fullagar J against recovery in A-G (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 290 and Commr for Railways (NSW) v Scott (1959) 102 CLR 392 at 408–10.

71.

Sydney City Council v Bosnich [1968] 3 NSWR 725.

72.

Leveridge v Witten (CA(NSW), 14 September 1979, unreported); Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 at 582 per Hutley JA, at 587 per Glass and Samuels JJA (in the latter case, this amount was in addition to the loss of profits recovered by the employer).

73.

Workers’ Compensation Act 1951 (ACT) s 183; Workers Compensation Act 1987 (NSW) s 151Z; Workers Compensation and Rehabilitation Act 2003 (Qld) s 207B; Workers Rehabilitation and Compensation Act 1986 (SA) s 54(4B)–(8); Workers Rehabilitation and Compensation Act 1988 (Tas) s 134; Accident Compensation Act 1985 (Vic) s 138; Workers’ Compensation and Injury Management Act 1981 (WA) s 93; and see Safety Rehabilitation and Compensation Act 1988 (Cth) s 50; Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 59.

74.

Sydney City Council v Bosnich [1968] 3 NSWR 725 at 726 per Sugerman A-P (CA); Holland (John) (Constructions) Pty Ltd v Jordin (1985) 36 NTR 1 at 15–16 per Nader J. The statutory provision would appear also to exclude any right in the employer to claim damages in negligence against the wrongdoer: Scott v Bowyer [1998] 1 VR 207 at 219 (CA).

75.

The legislation is considered in 10.15.

76.

Curran v Young (1965) 112 CLR 99. The action for loss of consortium is considered in 24.3.

77.

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7; Civil Law (Wrongs) Act 2002 (ACT) s 104; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 18.

78.

Barclay v Penberthy (2012) 291 ALR 608; see 20.11.

79.

[1984] 2 NSWLR 571 (CA); see 20.18.

80.

See Luntz, Assessment of Damages, 4th ed, 2002, 5.5.5 and, in relation to recovery by one member of a partnership of the profits lost by the partnership, Lago v Lago [1983] 2 Qd R 29 (FC); Batt v Wilkinson 2 Qd R 619 (FC).

81.

It is acknowledged that abolition of the actio per quod servitium amisit would result in the other shareholders not being compensated for the loss of profits suffered by the company, but this would appear to be a relatively small price to pay for the removal of the other anomalies created by this tort.

[page 608]

CHAPTER 21 Intentional and Unjustifiable Interference with Trade or Business

21.1 The torts discussed in this chapter have on a number of occasions been availed of by parties to an industrial dispute — whether that dispute is between an employer and a trade union, or between rival trade unions. It is therefore necessary to enter a caveat at the outset. The parties to an industrial dispute in Australia and New Zealand, instead of using the economic torts, may well rely on the legislative provisions for the mediation, conciliation or arbitration of such issues.1 But, while there may be relatively few occasions on which one or other of the protagonists to an industrial dispute will seek to rely on these torts, they are nevertheless regarded as a useful measure of last resort. That legislation has, however, meant that the judicial development of the economic torts in these countries has been somewhat different from that in England. In that country, legislation first passed in 19062 has granted to trade unions and their members a measure of immunity from actions in tort for activities undertaken in contemplation of furtherance of a trade dispute. Although the legislation in Australia and New Zealand grants some immunity along the same lines,3 it is not as extensive as that in England, nor availed of as frequently. The fact of these differences in legislation has, without doubt, directed the attention of the courts in England along different paths from those which are appropriate in Australia and New Zealand.

21.2 This chapter considers the four distinct torts which may be grouped under the general rubric of intentional and unjustifiable interference with trade or business. They are: inducing breach of contract; unlawful interference with trade; intimidation; and conspiracy. But the point must be

made at the outset that the first two of these torts have undergone a measure of change over the last 50 years. Starting in the early 1950s in England, liability under the tort of inducing breach of contract expanded considerably, but that expansion was checked, and orthodoxy restored, by a conjoined appeal to the House of Lords in 2007 of three cases, each of [page 609] which required discussion of different aspects of the two torts. The decision is cited under the name of the first of those cases, OBG Ltd v Allan.4

21.3 Expansion of liability The foundation for this development was laid in DC Thomson & Co Ltd v Deakin.5 The plaintiff printing and publishing company faced a boycott from two of the trade unions whose members they employed. Employees of a principal supplier to the plaintiffs informed their employer that they might not be able to load or deliver goods which were in fact destined for the plaintiff. The supplier, rather than risk industrial unrest among its workforce, did not require the employees to load or deliver the goods. Although the plaintiffs’ action against officials of the various unions involved failed on a number of grounds, the Court of Appeal took the opportunity to review at some length this area of liability. In doing so, the judges looked beyond the situation where a defendant has directly persuaded a contracting party not to fulfil his or her contract, and considered that liability should also be imposed where the defendant had intervened in some way with the performance of a contract. Such intervention, it was said, might be direct — as by persuasion or inducement of the contracting party — or indirect, such as by preventing the contracting party from continuing with performance of the contract. But such indirect intervention had to be brought about by acts which were independently wrongful, otherwise normal competition between business rivals would become unlawful. A further means by which liability was extended was the judgment of Lord Denning MR in the English Court of Appeal in Torquay Hotel Co Ltd v Cousins.6 The defendant, the general secretary of the Transport and General Workers Union, was sued, among others, for activities connected with the picketing of the plaintiffs’ hotel. One result of that picketing was that an oil company refused to deliver fuel oil to the hotel. The contract between the oil

company and the plaintiffs included a clause that neither party would be liable if fulfilment of any of the obligations thereunder were hindered by, inter alia, ‘labour disputes of any kind’. Lord Denning was prepared to rest his decision that the defendant was liable on the proposition that this tort may be committed when the defendant, although not necessarily having procured the breach of a contract between the plaintiff and a third party, had prevented or hindered a party from performing all of the obligations thereunder. Lord Denning’s views were subsequently expressly affirmed by the House of Lords,7 and accepted as correct in Australia.8 A further instance of the expansion of liability was the decision of the House of Lords in Merkur Island Shipping Corp v Laughton.9 The defendant, a senior official of the International Transport Workers Federation, persuaded tugmen and lockkeepers at the Port of Liverpool, in breach of their respective contracts of employment, to refuse to allow the vessel which the plaintiffs had chartered to leave port. On the [page 610] plaintiffs’ action to enjoin the defendant from continuing his course of action, the House of Lords accepted that the defendant had not directly induced a breach of, or interference with the performance of, the plaintiffs’ charterparty. But their Lordships applied the principles formulated in DC Thomson & Co Ltd v Deakin by concluding that if a defendant’s conduct had the necessary consequence of indirectly preventing performance of a contract, and if that conduct constituted an unlawful act, that was sufficient to impose tortious liability. On the facts before them, the performance of the plaintiffs’ charter-party had been interfered with, by the unlawful acts of the tugmen and lockkeepers refusing to fulfil their contracts of employment. The House made the further observation that direct interference with the performance of a contract and the indirect interference which had occurred in the case before them were each species of a wider genus of wrong constituted by interfering with the trade or business of another by unlawful means.10

21.4 Orthodoxy restored In OBG Ltd v Allan,11 the House of Lords concluded that these developments were both confusing and misleading, and should be abandoned. It was affirmed that there is no unified theory linking

the tort of inducing breach of contract with the tort of unlawful interference with trade, and that the two are quite separate wrongs. Their Lordships also declared that the tort of inducing breach of contract is a tort of accessory liability, which arises only when the defendant has intentionally procured the breach of a contract of which the plaintiff is a party, and that there is a separate tort, of primary liability, of unlawful interference with trade, which requires the commission of an unlawful act and the intention to cause loss to the plaintiff. Since the earlier English decisions have never been accepted by the High Court of Australia or the Supreme Court of New Zealand, it is assumed that the principles stated by the House of Lords in its most recent judgment will be accepted in these countries. In OBG Ltd v Allan itself, the plaintiff company had got into financial difficulties and an unsecured creditor purported to appoint the defendants as administrative receivers, who then took various steps in relation to contracts entered into by the company. Subsequently, the company alleged that the defendants’ appointment as receivers had been invalid, and that it had suffered loss as a result of their wrongful interference with its contracts. The House of Lords rejected the company’s claim, since, on the one hand, the defendants had not caused the breach of any contract and there could consequently be no accessory liability of inducing breach of contract, and, on the other hand, the receivers had acted at all times in good faith, and hence there could be no liability for unlawful interference with trade. In the second of the conjoined appeals to the House of Lords, Douglas v Hello! Ltd, one of the claims was made by OK! Ltd, the publisher of a celebrity magazine, which had obtained from Michael Douglas and Catherine Zeta-Jones exclusive rights to publish photographs of their wedding. The defendant, also a celebrity magazine publisher, had purchased unauthorised photographs of the wedding from a freelance photographer, and published them in its magazine. The claim by OK! Ltd was based on the defendant’s deliberate interference with its trade, but the House [page 611] of Lords rejected that claim. It was held that, although Hello! Ltd, by publishing the unauthorised photographs, intended to cause loss to OK! Ltd,

the defendant company had not thereby engaged in any unlawful conduct.12 In the third conjoined appeal, Mainstream Properties Ltd v Young, two employees of the plaintiff company had, in breach of their contract of employment, purchased for themselves a property ripe for development, rather than advising the plaintiff of the property. The employees had been financed in this venture by the defendant. When the plaintiff employees first sought financial assistance from the defendant, he had questioned whether their conduct was not in breach of their employment contract. They fraudulently assured him that there was no conflict of interest and it was only on being satisfied on that point that the defendant had advanced the finance. On the company’s action against the defendant, based solely on the tort of inducing breach of contract, the House of Lords held the defendant not to be liable because he had honestly (if naively) believed the employees’ assurances, and hence had no intention to bring about the breach of contract which had occurred. Each of the four torts which are the subject matter of this chapter will now be considered in detail.

Inducing Breach of Contract Historical development 21.5 By at least the sixteenth century it was firmly established that an action lay for enticement of a servant from the master’s service. It would not be accurate to describe that action at that time as one of inducing breach of contract. Rather, the courts held that certain conditions were attached by law (without the consent of the parties) to those whose status was that of servant: the action for enticement (or harbouring) of the servant was in the nature of protection of a proprietary, and not a contractual, right of the master. Nevertheless, the leading case of Lumley v Gye,13 which began the development of a separate tort of inducing breach of contract, rested largely on the analogy of the then existing torts of enticing and harbouring servants. The court held on a plea of demurrer that the following facts could constitute a tort. A singer was under a contract to sing at the plaintiff’s theatre but was not the plaintiff’s employee. She was induced by the defendant, who was

alleged to know of this contract, to break it in order to sing at his theatre instead. This new principle was soon extended from contracts of service to contracts generally, and dicta in some cases in the latter years of the nineteenth century contemplated its application to advantageous business relations not embodied in contracts.14 It has, however, been accepted that its scope is restricted to inducing a breach of an existing contract.15 [page 612] Despite this latter restriction, the tort has continued to flourish. As well as being generally available to employers whose business is threatened by industrial action, it was employed by World Series Cricket Pty Ltd to ensure the playing of cricket between teams from different countries in ‘one-day’ cricket, designed to rival international test cricket,16 by Australian Rugby Union Ltd to protect its management of two international rugby union matches,17 by the New South Wales Harness Racing Club to thwart the local council’s support of residents’ plans to blockade the running of an international horse race18 and by a businessman whose plans to sell membership to an ‘Olympic Club’ were thwarted by the Sydney Organising Committee for the Olympic Games persuading the businessman’s cocontractor wrongfully to terminate the contract.19 The action was also used by a shipbuilding yard in the course of a lengthy dispute with a shipping company,20 and may be available to a construction company whose work on building a road is hindered by protesters21 and to a food processor whose goods are boycotted by environmental activists.22 In general terms, the tort is committed when the defendant intentionally induces a third party23 to breach a contract between that third party and the plaintiff. The elements which constitute this tort, the defence available and the remedies which a successful plaintiff may claim must now be examined.

State of mind of the defendant 21.6 The essential element of this tort is the defendant’s intention to bring

about a breach of the contract;24 it is irrelevant that there was no malice in the sense of spite or ill-will.25 The decision of the Full Court of the Federal Court in Hospitality Group Pty Ltd v Australian Rugby Union Ltd26 illustrates this point. The respondent is the sole body responsible for issuing tickets to international rugby union matches. When it sold tickets to any travel agent, a term of that contract obliged the latter not to on-sell any of those tickets unless they were to form part of a larger transaction which would include a substantial component of travel. The appellant, knowing the terms on which a particular travel agent had acquired tickets to two international matches, purchased from that agent tickets to those matches without any provision for travel or accommodation. Although the appellant’s aim was simply to provide [page 613] its local corporate clients with the opportunity to watch prestige sporting events, it was held to have committed this tort. But, as Mainstream Properties Ltd v Young27 very clearly illustrates, if the defendant proves that he or she honestly believed that his or her conduct will not lead to a breach of contract, there can be no liability.28 Of course, if the defendant were indifferent as to whether there was a breach of contract or not,29 or had made a conscious decision not to inquire into the existence of a contract,30 then liability may follow. Negligent conduct, even gross negligence, which leads to another being in breach of a contract does not constitute this tort,31 although it may fulfil the requirements of the tort of negligence.32

Kinds of contract 21.7 Any valid and enforceable contract can found an action upon its subsequent breach:33 meagre evidence of its terms is enough.34 Inducing the breach of a contract which is defective for some reason — such as it is declared void by statute,35 vitiated by mistake or contrary to public policy — is not actionable.36

What constitutes a breach?

21.8 Although there is a dictum that there must be ‘such a breach as goes to its root or shows an intention in the party sued not to be bound by it’,37 the better view38 is that any breach is enough. Many actions of this kind may be concerned largely with interpreting the contract in order to decide whether there has been a breach. Thus, in Goodchild Fuel Distributors Pty Ltd v Holman39 an employee of the plaintiff company had, at the instigation of the defendant, allowed the defendant’s business to run up a considerable debt with the [page 614] plaintiff company. The defendant’s business subsequently went into liquidation and was unable to repay the debt. It was held that, in allowing that credit to be extended to the defendant’s business, the employee had acted in breach of her implied duty of fidelity to her employer. That breach having been induced by the defendant, he was found liable in this tort. But if a contract is determinable by either party at pleasure, it is not actionable if the defendant induces a party to determine that contract, for there has been no breach but merely a lawful determination of the contract.40 In all but some limited circumstances,41 a strike is a breach of contract if, as is often the case, there is a no-strike clause in the contract or award under which a person is employed.42 Hence, the inducement by a union to its members to go on strike is likely to be actionable at the suit of the employer.

21.9 Even though the defendant is not responsible for the initial breach of a contract liability will accrue if he or she is responsible for continuing the breach of a still subsisting contract.43 So, where the defendant had engaged an employee in ignorance of an existing fixed term contract of service between the employee and the plaintiff, he was held liable for having continued to employ him after learning the facts.44 There must, however, be a continuing obligation at the time of the defendant’s inducement or procurement. Thus, if A has agreed to sell a house to B, but subsequently repudiates that obligation, C would commit the tort if he or she bought the house from A prior to B’s acceptance of A’s repudiation; but not if B had already accepted A’s repudiation and brought to an end the contract between

A and B.45

Knowledge of the contract 21.10 The defendant must be shown to have had some knowledge,46 at least of the existence (though not necessarily of the terms)47 of the contract which has been broken.48 In Carlton & United Breweries Ltd v Tooth & Co Ltd,49 Young J reviewed the authorities to that date and, in a passage subsequently adopted by the New South Wales Court of Appeal,50 considered that: … all the cases are consistent with the proposition that so long as the defendant has actual knowledge that there is a contract between the plaintiff and X, then if the defendant acts in such a way as to induce a breach of that contract he is liable even

[page 615] though he does not know the actual terms of the contract unless he has reasonable grounds for believing that the contract did not contain a term which is relied on [and he does so believe] and this is a fortiori the position where (a) the term is a very common one in contracts of that type; or (b) he deliberately closes his eyes and refrains from enquiring whether the term existed or not.51

And, on a number of occasions, the courts have been willing to assume that a defendant has the relevant knowledge. Thus, it has been suggested52 that ‘common knowledge about the way business is conducted’ may well be sufficient, and held53 that the official of a union must be deemed to know that employment contracts of members would conform with relevant legislation, and thus know sufficient of the content of those contracts.54 And deliberate disregard of the terms of a contract — in particular, how soon it might have been lawfully terminated — will not protect a defendant.55 In the case of a corporate defendant, the knowledge of former officers and employees continues to be relevant after they have left that employment. A corporation, it has been said, ‘cannot cause itself to shed knowledge by shedding people’.56

What acts constitute an inducement?

21.11 Inducement to breach a contract may be brought about by words (persuasion or procurement) or possibly57 by deeds (disabling the person with whom the plaintiff has contracted from continuing with performance of the contract).

Persuasion or procurement 21.12 Any effective persuasion or procurement or inducement applied by the defendant to the contract-breaker is sufficient.58 If the contract-breaker is a limited company, an approach to some person in the company with actual or ostensible authority to make contracts is required.59 The issue here seems a straightforward one of causation. It might at one time have been thought that there was a significant distinction between advice and persuasion,60 but the problem resolves itself into nothing more than whether the breaking of the contract is ‘fairly attributable to any such pressure, persuasion or procuration on the part of any of [the] defendants’,61 and presents just the same difficulties on the facts as other problems of causation [page 616] in torts:62 any distinction between advice and persuasion as such is unimportant.63 For example, a trade union official, who sent to managers of the plaintiffs’ public houses a circular questionnaire asking (inter alia) for details of the receipts and profits of their public houses, was held to have caused the managers to break their contractual obligation not to disclose confidential information; the managers were led to disclose these items because they thought that the defendant’s union might ultimately secure them better wages and conditions.64 And the establishment by a union of a picket line outside an employer’s premises has been held to be sufficient persuasion to employees to break their contracts of employment.65 Similarly, a statement by a dairy co-operative to milk producers that its milk tankers would be in operation was regarded, in the light of the surrounding circumstances, as implying a threat that the co-operative would not accept milk carried by the plaintiff, and thus as a sufficient inducement to the milk producers to break their cartage contracts with the plaintiff.66

21.13 On the other hand, when the Minister for Tourism in the Norfolk Island Legislative Assembly directed the Tourist Bureau to take all necessary steps to terminate the employment of the executive officer of the bureau at the earliest possible date, that direction was construed as an injunction to the bureau to act lawfully in the termination of employment. When the bureau brought the employment to an end in breach of the terms thereof, that breach was held not to have been procured or induced by the minister.67

21.14 If the party whose breach of contract is complained about is a company, the injured person will not be permitted, as a general rule, to allege that a director of the company has induced it to act contrary to its contractual obligations. The director is regarded as the alter ego of the company, so that to allege that the director has induced a breach of the company’s contract is seen as equivalent to alleging that a natural person has induced himself or herself to refuse to further perform a bargain.68 It has, however, been held that the director of a company may be liable, along with the company, if that director, with the relevant intent (see 21.6), procures or directs the company to perform the tortious act.69 [page 617]

Preventing performance 21.15 It was suggested, by the English Court of Appeal in DC Thomson & Co Ltd v Deakin,70 that it would be actionable, for instance, if the defendant placed physical restraint upon the contractor so as to prevent it from carrying out the contract with the plaintiff; or if the defendant deprived a contractor ‘of his only possible means of performing the contract (as, for example, by removing the only available essential tools or by kidnapping a necessary or irreplaceable servant …)’.71 And it has been held that disablement from performance by the use of financial means is actionable under this tort.72 However, in OBG Ltd v Allan,73 Lord Hoffmann observed that the English Court of Appeal had ‘an inadequate appreciation of the scope, possibly even the existence, of the tort of causing loss by unlawful means’. While not necessarily rejecting the approach that had been taken in Thomson’s case, his Lordship considered that, at the very least, such conduct might now be more

readily regarded as creating a primary liability for intentionally causing loss by unlawfully interfering with the liberty of a third party (see 21.24) than as establishing a secondary liability for breach of contract.

Inconsistent dealings 21.16 It has been stated that: … there seems to be no doubt that if a third party, with knowledge of a contract between the contract breaker and another, has dealings with the contract breaker which the third party knows to be inconsistent with the contract, he has committed an actionable interference.74

While this proposition is supported by earlier authority,75 it is far from clear whether it is consistent with the return to orthodoxy brought about by OBG Ltd v Allan,76 (see 21.4) in that the above dictum does not require proof of persuasion by the defendant.77 It also leaves uncertain the question of whether the defendant, in entering into the inconsistent dealing, has merely taken advantage of the voluntary decision already made by the third party to discontinue the contract, or whether the defendant has in fact been instrumental in bringing about the breach. British Motor Trade Association v Salvadori78 illustrates the point. Third parties had entered into covenants with the plaintiffs not to resell motor cars except under certain conditions. The defendants had bought some cars from these third parties with a view to resale at a profit in circumstances which amounted to a breach of the covenant with the plaintiffs. Roxburgh J held that the defendants had offered a [page 618] price for a car high enough to cause a person who would not otherwise have broken the covenant to sell it in breach of covenant and that they were therefore liable.79 He did add, however, that ‘any active step taken by a defendant having knowledge of the covenant by which he facilitates a breach of that covenant is enough’, and that ‘a defendant by agreeing to buy, paying for and taking delivery of a motor car known by him to be on offer in breach of covenant’ commits the tort.80 With this case can be contrasted Batts Combe Quarry Ltd v Ford.81 On selling his quarry to the plaintiffs, a father

contracted not to assist in setting up any rival quarry in the neighbourhood. His son, the defendant, decided to set up such a quarry, and the father financed him in this enterprise. It was held that the acceptance of this gift by the son was not an actionable interference with the contract of the plaintiff.

Damage 21.17 It must be proved that the breach of the contract has caused damage, or at least that damage can be inferred from the circumstances.82 An illustration of this need to prove damage is furnished by Jones Brothers (Hunstanton) Ltd v Stevens.83 The defendant continued with the employment of a person, after learning that, in entering into that employment, he was breaking his contract with the plaintiffs. It was shown, however, that in any event, the employee would not have returned to the plaintiffs’ employment. It was held, therefore, that the plaintiffs’ action based on this tort failed, for they had suffered no damage.

Justification84 21.18 The only85 defence to this tort is that of justification, but it is difficult to provide guidance on when the defence might successfully be raised, as it has been said on a number of occasions86 that the matter must be ‘left to the tribunal to analyse the circumstances of each particular case’. It has also been stressed that the defence will rarely succeed. ‘In a society which values the rule of law, occasions when a legal right may be violated with impunity ought not to be frequent.’87 Some [page 619] of the factors which might be taken into account were enumerated by Romer LJ in Glamorgan Coal Co v South Wales Miners’ Federation:88 Regard might be had to the nature of the contract broken; the position of the parties of the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and … to the object of the person in procuring the breach.

Although in that case it was held that the defendants were not justified in calling the miners out on strike in order to keep up the price of coal by which the miners’ pay was regulated,89 it is by no means settled that the defence will fail merely because the inducement to break a contract is effected in the course of an industrial dispute. In Brimelow v Casson,90 the defendants were representatives of various theatrical unions, and the plaintiff owned a touring theatrical company. The defendants induced a theatre manager to break his contract with the plaintiff because the plaintiff was paying such low wages to his company that some chorus girls were compelled to resort to prostitution. The interest which the defendants had in keeping up the standards of the theatrical profession was held to justify their procuring the breach.91 Furthermore, there are dicta which raise the possibility that the moral duty resting on an industrial union to protect the interests of members might, in other exceptional circumstances, be a justification.92

21.19

Outside the field of industrial disputes, the defence has been extensively considered by the High Court in Zhu v Treasurer of New South Wales.93 The appellant had entered into a contract with a marketing company to promote the Sydney Olympic Games in mainland China. During the course of fulfilling that contract, the Sydney Organising Committee for the Olympic Games (SOCOG)94 took the view that his conduct was contrary to various contractual arrangements which it had entered into in undertaking the hosting of the Olympic Games in 2000, and induced the marketing company wrongfully to terminate the appellant’s contract. SOCOG pleaded its rights under its various contracts with others as justification for its conduct, but that argument was rejected by the High Court. It held that it is not sufficient for a defendant to show that it has a contractual right which might have [page 620] priority over that of the plaintiff. What is required is for the defendant to show that it has an actually existing superior legal right, which may be a right in real or personal property, or a right or duty conferred by statute.95 Since SOCOG was found not to have either any relevant proprietary rights or any statutory right or duty, its defence of justification failed.

An example of such a superior proprietary right as will justify inducing the breach of a contract is provided by Edwin Hill & Partners v First National Finance Corp plc.96 The defendant had lent money to a property developer, the loan being secured by charges over a particular property being developed. On the developer’s request for further funds, the defendant agreed, but on condition that the plaintiff firm of architects was dismissed. The plaintiffs were dismissed, in breach of contract, but the English Court of Appeal held that, although the defendant had unlawfully induced the breach of the plaintiffs’ contract, it had made out a defence of justification, since its conduct was in defence or protection of its property.97 It has been accepted that the defendant could not rely on justification merely because it was acting in the public interest, and the defendant’s impersonal or disinterested motives have also been said not to be a sufficient basis for the defence.98 Nor would it be justification for a municipal council to support a residents’ action group, and thereby induce the breach of a variety of contracts, as a means of trying to compel the plaintiff to comply with conditions which the council had imposed upon the development of the plaintiff’s property.99 Not only is the defence very narrow, but facts which would absolve the defendants in the tort of conspiracy on the ground that the acts were done for the purpose of protecting the trade interests of the defendants100 will not constitute justification for the tort of procuring a breach of contract. The interest in maintaining the security of contracts is greater than the interest in protecting free trade.

Remedies 21.20 The remedies available to a plaintiff who proves the commission of this tort are either damages or an injunction.

Damages 21.21 In most cases, the successful plaintiff in this action will also have the right to sue the party with whom he or she had a contract for its breach. However, the tort action may often be preferable, as a greater award of monetary compensation will be recoverable thereby for the following reasons.101

[page 621] 1. The damages will be assessed in the light of the facts as at the date of breach, not when the contract was made. 2. The damages may be more extensive than those awarded in contract, since the applicable remoteness rules are those of tort, rather than the narrower ones of contract.102 3. Damages in this tort may include a greater range of compensable heads than in an action for breach of contract.103 Thus, in British Motor Trade Association v Salvadori,104 holding that ‘the maintenance of fixed prices and the covenant system as an integral feature of that policy is a trade interest which the plaintiffs are entitled to protect against unlawful interference’, Roxburgh J held that the expenses incurred in unravelling and detecting the devices of the defendants for evading the covenant system were recoverable. 4. It is likely that the plaintiff’s duty to mitigate the loss will be less strict if the action is in tort.105 5. On proof by the plaintiff of the defendant’s contumelious disregard of his or her rights, the former would be able to claim exemplary damages.106 It has been argued that such an award, for this tort, is anomalous, in light of the fact that exemplary damages are not available in an action for breach of contract.107 But any such anomaly did not prevent Chesterman J from making such an award in Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd.108 Sometimes the action in tort will succeed where that in contract would fail, as for instance if physical restraint is used, frustration might be pleaded in an action on the contract.

Injunction 21.22

The plaintiff, whose contract has been interfered with by the defendant, has a right to demand due performance of that contract,109 which may be enforced by the issuance of an injunction to restrain the defendant from continuing with prevention of that performance. But the grant of an

injunction, as with other equitable remedies, is in the discretion of the court, in that it may be refused, although the tort has been established. The two principal grounds relevant for present purposes on which this form of relief will be denied are (a) that an award of damages would be an [page 622] adequate remedy,110 and (b) that the effect of granting injunctive relief would be to oblige the contracting parties (the breach of whose contract has been induced by the defendant) to continue a relationship of too close a personal or business nature for too long a time.111

21.23 If the inducement complained of has occurred in the course of an industrial dispute, the remedy invariably sought by the plaintiff is an interlocutory injunction. However, there may be considerable difficulties in obtaining such an order. In the first place, the general principles upon which the court acts in considering whether to grant an order at the interlocutory stage are (a) whether there is a ‘serious question’ as to liability to be tried between the parties and (b) whether the loss likely to be suffered by the plaintiff, if interlocutory relief were to be denied, outweighs the injury that would be suffered by the defendant if the order were made.112 The second difficulty which faces the plaintiff who seeks an interlocutory injunction as a means of bringing an industrial dispute to an end is the existence of the schemes of industrial mediation, conciliation and arbitration in both Australia and New Zealand. While the fact that there are specialised tribunals set up under these schemes does not deprive a Supreme Court of jurisdiction to hear an application for an interlocutory injunction,113 it has been said that, as a matter of discretion: … it is a well settled approach … that injunctive relief will not ordinarily be granted where it can be seen that there is another tribunal particularly suited to deal with the matter in issue and having the requisite power and authority to resolve the issue between the parties.114

A third difficulty is that an injunction must be addressed to a particular person or body.115 If an industrial dispute has attracted the support of a wide variety of people with disparate interests, an injunction is likely to be denied because (it may be assumed) it would be impossible to specify the persons to

whom it is to be addressed.

Unlawful Interference with Trade116 21.24 Liability under the general description of unlawful interference with trade has had a chequered history. There are comments in some of the English judgments [page 623] handed down at the turn of the twentieth century which suggest that one might be liable for unlawful conduct directed against a third party with the intention of causing loss to the plaintiff.117 While little notice was taken of those comments at the time, the notion that unlawful conduct which damages a person’s right to trade ought to found liability found expression in other cases during the course of the twentieth century. Thus, in both Rookes v Barnard118 and JT Stratford & Son Ltd v Lindley,119 two of the cases that established the tort of intimidation, at least Lord Reid appeared to acknowledge the existence of such a tort, and to recognise that it established liability separate and distinct from the other torts discussed in this chapter. However, the whole concept of such a head of liability underwent a radical change in the period from the 1950s to the 1980s. As mentioned in 21.3, the leading cases to bring about this change were the two decisions of the English Court of Appeal in DC Thomson & Co Ltd v Deakin120 and Torquay Hotel Co Ltd v Cousins,121 together with that in the House of Lords in Merkur Island Shipping Corp v Laughton.122 As a result, the tort of inducing breach of contract had been transformed into the tort of interfering with the performance of a contract, and it, together with the torts of intimidation and conspiracy, were described, by Lord Diplock in the Merkur Island Shipping case, as species of the wider genus of the wrong constituted by interfering with the trade or business of another by unlawful acts. It may be remarked that in none of the above cases which had fostered the development of this head of liability was there extended discussion of the limits of such a tort.

21.25 This unified head of liability had a mixed reception in Australia and

New Zealand. In Australia, the tort was acknowledged by Else-Mitchell J at first instance in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia123 (although on appeal the case was treated as one of intimidation only)124 while Brooking J, in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots,125 accepted that such a tort existed in England, and considered it his duty to apply that law, in the absence of any authoritative determination from the High Court of Australia. Such a determination from the High Court has not yet been made, the only comment from that court being the remark in Sanders v Snell,126 that their Honours did not ‘think it necessary to decide in this case whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia’. The New Zealand Court of Appeal has expressly accepted the existence of the tort of interference with trade or business by unlawful means, in Van Camp Chocolates Ltd v Aulsebrooks Ltd,127 but it was not made explicit whether that tort is [page 624] in addition to the other torts discussed in this chapter, or was seen as bringing them within a general principle of liability. It would appear, however, in the light of the court’s reliance, in part, on the Merkur Island Shipping case, that the latter is the case.

21.26 As foreshadowed in 21.4, the House of Lords, in OBG Ltd v Allan,128 has reshaped this aspect of the law again. Their Lordships restricted the tort of inducing breach of contract to one of secondary liability, which incidentally served to distinguish it from unlawful interference with trade, intimidation and conspiracy.129 The House further rejected any unifying theory which might apply to some or all of those torts.130

21.27 The tort of unlawful interference with trade, as now fashioned by that case, involves three parties and has two distinct elements. The plaintiff must demonstrate (a) that the defendant engaged in wrongful interference with the actions of a third party in which the plaintiff has an economic interest, and (b) that the defendant’s intention was that the conduct would cause loss to the plaintiff.131

The wrongful nature of the interference was described as generally including only conduct which was actionable by the third party, although Lord Hoffmann was prepared to accept conduct which was not in fact so actionable, but solely because the third party had suffered no loss.132 Thus, conduct which is a breach of the criminal law, and not also actionable by the third party, is not, for these purposes, unlawful.133 A further limit on the type of conduct which would constitute unlawful means for these purposes is to be found in the reference to the plaintiff having an economic interest in the actions of the third party. This was explained by Lord Hoffmann as referring to acts which, although unlawful against a third party, do not affect that third party’s freedom to deal with the plaintiff.134 The necessary intention to harm the plaintiff will be found, even if the defendant’s conduct may incidentally be to its financial benefit, but no tort is committed if the plaintiff’s loss is merely a foreseeable consequence of the defendant’s actions.135

21.28 The application of this tort and its possible limits may be illustrated by reference to earlier cases the results of which have never been questioned, but the reasoning in which was necessarily made with an inadequate appreciation of this tort in its reincarnation. The wrongful nature of the defendant’s conduct may be illustrated by GWK Co Ltd v Dunlop Rubber Co Ltd.136 The plaintiff motor car manufacturer had contracted with ARM, a manufacturer of tyres, that, when it exhibited its car at a motor show, the car would have tyres made by ARM company fitted to it. The defendants unlawfully removed from the car the ARM tyres and substituted [page 625] their own. The English Court of Appeal treated this as an action for inducing breach of contract, but as was pointed out in OBG Ltd v Allan,137 it may now be seen as an illustration of unlawful interference with trade. The defendants’ conduct would clearly have been actionable by the car manufacturer, as trespass to its goods, and that conduct was intended to damage the ARM company. An example of conduct which will be regarded as wrongful for these

purposes, even though it is not in fact actionable, may be found in Lonrho plc v Fayed,138 when it was before the English Court of Appeal. The plaintiff wished to purchase Harrods but was thwarted in that aim by the defendant. In these proceedings the plaintiff alleged that the defendant had been able to purchase the department store only by making fraudulent misrepresentations to the directors of the vendor company and to a cabinet minister. The defendant’s wrongful conduct, for these purposes, was his fraudulent misrepresentations to the third parties which were intended to cause loss to the plaintiff, and which would have been actionable by those third parties had they suffered loss. The decision of the Court of Appeal not to strike out the claim was upheld by the House of Lords.139 The limit which the House of Lords put upon this tort by denying liability if the defendant’s conduct, although unlawful against a third party, does not affect that third party’s freedom to deal with the plaintiff, is illustrated by RCA Corporation v Pollard.140 The plaintiff, the exclusive licensee of records made by Elvis Presley, complained of the defendant’s conduct of making unauthorised recordings of Elvis Presley concerts and selling the resultant bootleg records. Although the defendant’s conduct was unlawful as against Elvis Presley,141 and would have given him (or his estate) a right of action, the English Court of Appeal held that the conduct did not give the plaintiff licensee a cause of action. There had been no conduct by the defendant which had interfered with the liberty of the Presley estate to continue to perform its side of the licence agreement in full.

21.29 The only one of the conjoined appeals in OBG Ltd v Allan to raise issues relating to this tort was the action by OK! Ltd against Hello! Ltd for publication of photographs of the wedding of Michael Douglas and Catherine Zeta-Jones: see 21.4. Lord Hoffmann held Hello! Ltd liable to OK! Ltd for a breach of its duty of confidentiality,142 but went on to say that, even had that duty of confidentiality been owed only to the Douglases, Hello! Ltd would nevertheless not have been liable for the tort of unlawful interference with trade. While Hello! Ltd had the necessary intention to cause loss to OK! Ltd by publishing their own photographs,143 and on the assumption that such a publication was actionable by the Douglases as a breach of confidence, the conduct of Hello! Ltd had not in any way interfered with the Douglases’ freedom to deal with OK! Ltd, or to continue to perform their contract with that company.144

[page 626] The company had not, therefore, employed unlawful means in causing loss to OK! Ltd. Baroness Hale and Lord Brown concurred with this conclusion.145

21.30 It has been mentioned above that neither the High Court of Australia nor the Supreme Court of New Zealand accepted the tort of unlawful interference with trade in its former English incarnation. It is a welcome first step that Pritchard J, in the Supreme Court of Western Australia, in Hardie Finance Corporation Pty Ltd v Ahern (No 3),146 accepted the reformulation of the tort in OBG Ltd v Allan as part of the common law of Australia.147 The plaintiff, the owner of a commercial property in Perth, leased premises in a shopping mall to a restaurateur, in which the latter established a restaurant. The restaurateur engaged Ferguson Corporation Pty Ltd to fit out the premises as a restaurant. Within a few months of the opening of the restaurant, a dispute arose with the builder concerning payment for the fitout. The builder, acting on the advice of its solicitor, the first defendant to this action, in reliance on rights which it claimed to have under the fit-out contract, repossessed a large quantity of items from the restaurant. That repossession forced the restaurant to close for two weeks, and the plaintiff claimed that the eventual closure of the restaurant, and the restaurateur’s liquidation, were also attributable to the repossession. The plaintiff therefore sued the builder and its solicitor, claiming that they had each committed the tort of unlawful interference with trade. Pritchard J held, with respect to the builder, that the first element of that tort was satisfied, in that the builder had trespassed on the premises occupied by the restaurateur, a third party in which the plaintiff had a clear economic interest.148 However, his Honour held that the builder’s intention in repossessing the goods was simply to enforce what it thought were its rights under the fit-out contract, as its solicitor had advised it on that point. The fact that the repossession led to the restaurateur’s eventual demise might have been a foreseeable consequence of that action, but there was no proof that such demise was intended.149 The first defendant, the builder’s solicitor, was also held not liable under this tort, as it could not be proved that he had taken part in a trespass in the course of the repossession, nor could negligence be proved against him. He had therefore not engaged in any wrongful conduct for the purpose of this tort.150

It is regrettable that, in Qantas Airways Ltd v Transport Workers’ Union of Australia,151 Moore J declined to consider whether the tort established in England by OBG Ltd v Allan is a part of Australian law, based solely on the view of the Queensland Court of Appeal, in Deepcliffe Pty Ltd v Gold Coast City Council,152 that the tort in its former English incarnation was not part of Australian law.153 [page 627]

Intimidation 21.31 The essence of the tort of intimidation is that the defendant has, by a threat to commit an unlawful act, coerced another person into acting in a way in which the latter did not wish to act, the defendant having thereby intended and caused economic damage to the plaintiff. The threat made by the defendant is more usually directed to coercing a third party, but the tort is also committed when the threat is directed to the plaintiff. The former situation, in which three parties are involved, has been described as follows: ‘if A, intending to injure C, by threatening B that he will commit an unlawful act as against B, unless B refrains from exercising his legal right to deal with C, induces B to refrain from so doing, A commits a wrong actionable at the suit of C’.154 In the latter, two-party, situation, the defendant, A, will be liable by threatening to commit an unlawful act as against the plaintiff, B, unless B refrains from pursuing a particular course of action, thereby causing (as A intended) economic loss to B.155 Although the circumstances may arise in which the defendant is found liable not only in intimidation but also for inducing breach of contract and conspiracy,156 the tort of intimidation is distinct from the other two wrongs. It is different from inducing breach of contract in that for intimidation to be committed the threats, if directed to a third party, may be made to induce that third party either not to enter into proposed future contracts with the plaintiff,157 or lawfully to bring to an end an existing contract.158 Intimidation is discrete from conspiracy first, because the former may be committed by one person or entity acting alone (whereas conspiracy requires

that the defendants act in concert: see 21.47) and, secondly, because intimidation looks primarily to the coercive force exerted by the defendant whereas conspiracy is often concerned with the predominant purpose of the defendants being to injure the plaintiff’s trade or business: see 21.55 and 21.57.

The elements of the action 21.32 There are three elements to this action: (1) that the defendant has made a demand, coupled with a threat, to either the plaintiff or a third party; (2) that the threat is to commit an unlawful act; and (3) that the person threatened complied with the demand, thereby causing loss to the plaintiff.

A demand coupled with a threat 21.33 At the heart of this species of wrong is the fact that the defendant has exercised a coercive power over another, to compel the latter to do something which [page 628] he or she did not wish to do, or to refrain from doing something which he or she wished to do. As Lord Denning MR expressed the point: Another thing that is essential to the cause of action is that the threat should be a coercive threat. It must be coupled with a demand … It must be capable of being expressed in the form, ‘I will hit you unless you do what I ask’ or ‘if you do what I forbid you to do.’ A bare threat without a demand does not to my mind amount to the tort of intimidation.159

His Lordship went on to observe160 that a threat without an accompanying demand — such as if one person were to say to another ‘I am going to hit you when I get you alone’ — may constitute a tort, but the wrong would be assault (or, if the threat were carried out, battery),161 and not intimidation. Nor is it intimidation to threaten to restrain goods, if that threat is not accompanied by a demand, even though the threat in fact causes the plaintiff to pursue a course of action which leads to the suffering of loss.162

21.34 Although the tort requires that the defendant both make a demand

and coerce obedience thereto with a threat, there is no necessity that the demand and threat be expressed orally. Actions may well speak louder than words, so that the fact that, for example, employees leave their place of employment as soon as a fellow employee appears for work may be regarded as a sufficiently clear intimation that the defendants are demanding the immediate dismissal of the plaintiff, and backing up that demand with the threat that they will continue the disruption of their employer’s business until the latter accedes to those demands.163

21.35

The defendant’s demand, and concomitant threat, need not be directed to a third party, but may be made to the plaintiff personally. Although the issue has not been the subject of judicial comment in Australia,164 there are dicta both in England165 and New Zealand166 to that effect, and in an interlocutory appeal in Berezovsky v Abramovich,167 no question was raised before the English Court of Appeal that the tort of intimidation may be committed by the defendant making the necessary threat and demand to the plaintiff.168 [page 629]

An unlawful act 21.36 The threat issued by the defendant must be to commit an unlawful or illegal act.169 Such an act might be a crime, or another tort170 and, since the decision of the House of Lords in Rookes v Barnard,171 a breach of contract. In the last-mentioned case, the defendants, employees of an airline and union officials, threatened the airline that they would call the other union members employed there out on strike, in breach of their employment contracts, unless it dismissed the plaintiff, Rookes. The airline submitted to this demand, and Rookes was held entitled to damages for that intimidation. Although some might argue that it is difficult to regard a breach of contract as an ‘unlawful act’ in any way similar to a criminal or tortious act involving force, such an objection cannot be sustained. The reference in the cases to an ‘unlawful’ or ‘illegal’ act is merely to an act which the defendant has no right to do. It may be conceded that, in one sense, to break one’s contract is not ‘unlawful’ in that it is not an act prohibited by a positive rule of law. But it

must be borne in mind that, by including the threat of an ‘unlawful’ act as one of the elements of this tort, the courts are striving to draw a line between those methods of dealing which are regarded as objectionable and those which are not. It has been observed in 21.27 that a similar line must be drawn in order to mark out the boundaries of the tort of unlawful interference with trade, which equally is committed only when the defendant’s wrongful interference with the actions of a third party would have been actionable by that third party. Viewed in that light, there is no difficulty in accepting the correctness of Rookes v Barnard.

21.37 It might also appear, at first sight, that difficulties would arise in applying that decision, not to the three-party situation with which the House of Lords was concerned, but to a two-party situation, in which the defendant’s threat is to repudiate a contract with the plaintiff, unless the latter submits to the former’s demand. To apply the House of Lords decision in such circumstances, it might be thought, would make some anticipatory breaches of contract tortious, and might encourage the threatened party to yield more readily to the coercion.

21.38 But such difficulties may be seen, on further analysis, as being without substance. First, there can be no objection to a contracting party having a remedy both in contract, for the anticipatory breach thereof, and in tort for intimidation. It has been accepted since at least the nineteenth century that a party induced into a contract by a fraudulent misrepresentation has similar dual remedies, in tort for damages for deceit and in contract for rescission.172 Secondly, it is difficult to see why the availability of a right of action in intimidation to a contracting party, based on [page 630] the threats made by the other contracting party to repudiate the obligations, might encourage the former more readily to yield to those threats. It has been observed in 21.33 that the nub of the tort is the coercive power exercised by the defendant. In this respect, the tort has an analogy with the ability of a person either to rescind a contract or to recover money paid to another when the former has acted under duress or coercion. The courts appear to have

accepted that such duress will be found whenever the plaintiff has no practicable alternative but to submit.173 On the assumption that the tort of intimidation is committed only when the defendant’s threats are of such a nature that the plaintiff has no practicable alternative but to submit, it can be seen that the tort complements the above contractual and restitutionary remedies.

Compliance with the demand 21.39 The third element of the tort is that the person threatened must submit to the demand made by the defendant. If that person does not comply, but instead stands up to the threats, the defendant will have failed to effectuate the intention of causing harm to the plaintiff; the latter will not have suffered any loss — at least, not by reason of the defendant’s intimidation.174

Justification 21.40 As with the tort of inducing breach of contract, the only defence available to this tort is that of justification. And, just as the courts have been loath to articulate general principles for the defence to the former wrong,175 so too there is little judicial guidance on the metes and bounds of the defence to the latter. There appears to be only one reported decision in Australia, New Zealand or England in which the defence has received substantial consideration: Latham v Singleton.176 In the light of the judge’s discussion,177 it can at least be said that, if the tort is committed in the course of an industrial dispute, the defendant will have discharged the onus of proving justification if he or she can show a motivation primarily or predominantly to preserve and foster the purposes of the trade union of which the defendant was a member.178 The defence will not, however, have been made out if the defendant’s making of the demands and threats was actuated by spite or ill-will against the plaintiff.

Remedies 21.41 The remedies available to a plaintiff are damages for the loss which

is a foreseeable consequence of the intimidation, and an injunction to restrain the defendant from continuing the intimidatory acts. [page 631] An award of damages may include not only the loss which the plaintiff has suffered up to the time of trial,179 but also any further damage likely to be suffered in the future. Thus, in Latham v Singleton,180 the defendants had intimidated the plaintiff’s employer into dismissing him. Because the defendants’ actions had taken place in the course of an industrial dispute relating to the plaintiff’s refusal to abide by a trade union’s decision, and had occurred in Broken Hill, New South Wales, a city in which trade union affiliations are particularly strong, it was accepted that the plaintiff would not be able to obtain employment in that city for a number of years. The court regarded it as unreasonable to expect the plaintiff to move his home in order to find employment, and consequently awarded him $50,000 as compensation for this loss.181 Damages, in that case, were also awarded for the suffering and distress caused to the plaintiff, together with an amount in the range from $5000 to $10,000 as exemplary and aggravated damages for the ‘disgraceful insults meted out to the plaintiff and the conduct directed against him’.182

21.42 If the plaintiff seeks an injunction, it is to be assumed that the court will apply the same principles as those discussed in 21.22 in relation to an injunction to restrain an inducement to breach a contract; if it is a final order which is sought, the plaintiff must show that damages would not be an adequate remedy, while the grant or refusal of an interlocutory order requires a judicial weighing of the possible harm to be caused thereby to either the defendant or the plaintiff.183

Conspiracy 21.43 The civil tort of conspiracy is committed when two or more persons combine together either (1) to commit an unlawful act with the intention (actual or constructive) of harming the plaintiff’s trade, business or other economic interests, or (2) to perform an act which, if carried out by a single person, would not be unlawful, with the predominant object of so harming

the plaintiff, and, in either case, the acts cause damage to the plaintiff. The first of these heads of liability is referred to hereafter as ‘conspiracy by unlawful means’ and the second as ‘conspiracy by lawful means’. A plaintiff may, in many circumstances, allege the commission not only of conspiracy but also of the other torts already discussed in this chapter. Nevertheless, this wrong is discrete from those others in two respects. First, conspiracy can be committed only when a combination acts in concert, whereas those other torts may be committed by one person acting alone. Secondly, those other torts are limited by the need to show that there has been a breach of contract, or that the defendant has used some other unlawful means to achieve the desired end. An action in conspiracy, on the other hand, may lie when a combination performs an act which, if done by one, would not be contrary to the law, or otherwise actionable by another. [page 632]

Development of the tort 21.44 The origins of this tort are to be found in the crime of conspiracy, which was developed by the Court of Star Chamber as a means of repressing the then current evil of persons combining to abuse the legal process. When that court was abolished, and its jurisdiction subsumed within the common law courts, the former criminal action of conspiracy became a common law misdemeanour. The original purpose behind the crime — the prevention of the abuse of the legal process — was taken over by the courts of common law and formed the basis for what is now the action for malicious prosecution: see 25.2. But the further aspect of the misdemeanour — the fact that it applied only to persons acting in combination — was also treated as a basis for civil liability. Just as libel, which was also a crime at common law, gave rise to a civil action at the suit of the person defamed, so too the misdemeanour of conspiracy was regarded as founding an action in the nature of an action on the case available to the person who had suffered damage thereby.184 Although the existence of the tort was well recognised by the middle of the nineteenth century,185 it achieved prominence only in a series of decisions in

the House of Lords over the decade from 1891 to 1901: Mogul Steamship Co Ltd v McGregor Gow & Co,186 Allen v Flood187 and Quinn v Leathem.188 The judgments in these cases are difficult to reconcile with one another, but this is hardly surprising. For one thing, the House was, in essence, setting the limits to a new head of liability, and it is only to be expected that views among their Lordships would differ as to where the bounds were to be placed. For another thing, each of the cases was concerned with the extent to which the law should control the pressure exerted by either organised capital (in the Mogul case) or organised labour (in Allen v Flood and Quinn v Leathem), areas in which judges have historically trod warily.

21.45 But the difficulties of reconciling the variety of views in those cases have largely been overcome in all the major common law countries. In Australia, the High Court settled the law with regard to conspiracy by lawful means in McKernan v Fraser189 and that concerning conspiracy by unlawful means in Williams v Hursey.190 In England, a similar process of rationalisation was undertaken by the House of Lords in Crofter Hand Woven Harris Tweed Co Ltd v Veitch,191 and, more recently, in Lonrho plc v Fayed,192 in terms which are, to all intents and purposes, the same as the principles stated by the High Court of Australia. The Supreme Court of Canada [page 633] has taken a similar view, that, although a conspiracy by lawful means requires proof that the defendants’ predominant object was to harm the plaintiff, conspiracy by unlawful means is constituted by no more than the carrying out of an agreement to commit an unlawful act, if the defendants’ conduct is directed towards the plaintiff and the former should have known that injury to the latter is likely to, and does, result therefrom.193 In New Zealand, there is little doubt that the law is the same as that in Australia. In PTY Homes Ltd v Shand,194 Haslam J was concerned only with conspiracy by lawful means, and his views coincide with those of the High Court in McKernan v Fraser and of the House of Lords in the Crofter case. In SSC & B Lintas New Zealand Ltd v Murphy,195 in which the conspiracy was by unlawful means, Prichard J stated the law in terms similar to those in

Williams v Hursey and in the Crofter case. In each of these jurisdictions, then, liability will differ depending upon whether the defendants agreed to employ lawful or unlawful means. As a consequence, each of these two heads of liability will be considered separately. But there are some matters which are common to both forms of conspiracy. These common elements are the first to be considered.

Common elements of liability 21.46 Whether the defendants have concurred in the use of lawful or unlawful means to injure the plaintiff, the latter must show (1) that there was an agreement between two or more persons (2) which was carried into execution and (3) which caused damage.

An agreement between two or more 21.47 This issue raises little difficulty, whether the alleged conspiracy is between natural persons, or between a natural person and a juristic person (a company). In the case of natural persons, so long as each was acting with some degree of independence, and one was not merely obeying orders which might not be disregarded, the element of agreement is present.196 Furthermore, although for the purposes of the criminal law a husband and wife were, at common law, unable to be charged as the only parties to a conspiracy,197 that incapacity does not apply to the tort of conspiracy; either (or both) may be liable although the spouses are the only persons who have agreed.198 And, since even the criminal law recognises that a [page 634] company can conspire with its directors or others,199 there can be no doubt that the same position obtains with regard to liability in tort.200 Direct evidence of an agreement to injure may often be difficult to obtain, but the courts are prepared to infer the existence of such an agreement from ‘a concurrence of time, character, direction and result’ of the separate acts of

each of the defendants.201

Agreement must be performed 21.48 Although the criminal law regards a conspiracy as being constituted by no more than the agreement between two or more persons to commit a crime, liability in tort for conspiracy arises only when an agreement is carried into execution, in whole or in part.202 Since the tort action is derived from the action on the case, the plaintiff must prove damage, which would be impossible were the agreement to remain wholly executory.

Plaintiff must have suffered damage 21.49 In order to succeed in this action, the plaintiff must show some pecuniary loss203 as a result of the defendants’ acts in furtherance of their agreement. Thus, in PTY Homes Ltd v Shand,204 in which the plaintiff alleged that the defendants’ conspiracy had prevented it from winning a tender for the construction of houses, Haslam J concluded205 that there was insufficient evidence to satisfy him that, had the defendants not conspired, the plaintiff would have been awarded the construction contract. The loss to the plaintiff could not, therefore, be shown to be the result of the conspiracy. Furthermore, the loss must be to the plaintiff personally and not merely to his or her legitimate interests. Thus, a trustee in bankruptcy cannot sue for loss caused to the bankrupt’s estate.206 Once that precondition of pecuniary loss has been fulfilled, the measure of the plaintiff’s damages will encompass not only loss of earning capacity but also injury to a person’s feelings or to the reputation of a business207 and, in appropriate circumstances, aggravated or exemplary damages.208 [page 635]

Conspiracy by unlawful means 21.50 When the defendants have concurred in causing damage to the plaintiff by unlawful means, the acts which the former have committed may

be either another tort, or an activity penalised by criminal sanctions. Although the two types of conduct are often treated as subject to the same limitations and restrictions, there are differences of principle between them. Each is therefore considered separately. This section concludes with a discussion of the elements of liability and the defences available to this type of conspiracy.

Commission of another tort 21.51 If the complaint against the defendants is that they conspired to commit some other tortious act against the plaintiff — such as intimidation, assault and battery or fraud209 — there appears to be a division of judicial opinion whether the plaintiff should be able to allege the commission of the tort of conspiracy. On the one hand, in Sorrell v Smith210 Lord Dunedin stated that ‘if a combination of persons do what if done by one would be a tort, an averment of conspiracy so far as founding a civil action is mere surplusage’, a sentiment quoted with approval on a number of occasions;211 and, in Galland v Mineral Underwriters Ltd,212 a majority of the Full Court in Western Australia ordered the striking out from the plaintiff’s statement of claim of the paragraph thereof which alleged a conspiracy to convert the plaintiff’s property, on the ground that the paragraph was superfluous and disclosed no cause of action. The court in the last-mentioned case was of the view that other paragraphs of the statement of claim alleged that the defendants were joint tortfeasors to the tort of conversion, and that the further allegation of a conspiracy to convert added nothing thereto.213 On the other hand, and in contradistinction to these views, a majority of the High Court, in Williams v Hursey,214 held the defendants liable in the tort of conspiracy to commit trespasses to the person (false imprisonment and assault), while Nagle CJ at CL, in the Supreme Court of New South Wales in Latham v Singleton215 found against the defendants on the ground of their conspiracy to intimidate the plaintiff’s employer. In neither case was any issue raised as to the impropriety of the way in which the plaintiff had framed his cause of action.216

[page 636]

21.52 The resolution of this apparent divergence of views lies in the fact that an averment of conspiracy to commit another tort is in all respects an alternative to alleging that the various defendants are joint tortfeasors. Although two or more persons may be jointly liable despite the lack of any prior agreement between them (see 29.25), if they have acted in concert to commit a tort it is immaterial whether they (or any one or more of them) are sued as joint tortfeasors of that other tort or the action is framed as one of conspiracy to commit that other tort. Although it was suggested217 that a plaintiff may obtain some advantage by suing in conspiracy, that view cannot be sustained. The advantages said to flow from averring conspiracy are (a) that the plaintiff can choose as a defendant any one of the conspirators, even one who might not have perpetrated the tortious act, and (b) that the fact of conspiracy might aggravate the damages. But a comparison of Martell v Victorian Coal Miners’ Association,218 in which conspiracy was alleged, with Schumann v Abbott,219 in which the only averment was that the defendants and another were joint tortfeasors, demonstrates that the first proposition applies equally to joint tortfeasors as to conspirators, while a comparison of Denison v Fawcett,220 which was pleaded in terms of conspiracy, with Schumann v Abbott makes the same point in relation to the second of the above propositions. The allegation of conspiracy can neither add to, nor detract from, the plaintiff’s averment that the defendants were joint tortfeasors; either may be pleaded but not, as Galland v Mineral Underwriters Ltd makes clear, both.

Commission of a crime 21.53 It was accepted by the High Court in Williams v Hursey221 that an agreement to commit a crime is actionable under this tort, even though none of the conspirators could be sued in tort individually, and this principle continues to be upheld in Australia,222 as it does in Canada.223 The same has not always been the case in England. In Powell v Boladz,224 the Court of Appeal in that country concluded that the unlawful act to which the conspirators have agreed must be one that is actionable at the suit of the plaintiff, and that it was not sufficient that it amounted to a crime. But the

House of Lords, in Revenue and Customs Commissioners v Total Network SL,225 has concluded that the former view was based on an over-refined analysis of earlier decisions of the House of Lords,226 and that, as a matter of principle, it should be rejected. The Revenue and Customs Commissioners alleged that the respondents had committed the common law crime of conspiracy to cheat the revenue. Their Lordships were unanimous in upholding the appellants’ claim as disclosing a good cause of action. [page 637]

What other conduct is ‘unlawful’ for these purposes? 21.54 While there is no doubt that an agreement to commit another tort or to commit a crime may constitute the necessary ‘unlawful means’ to establish this tort, it is a matter of considerable difficulty to establish what other conduct may come within this head of liability. It has been held that an agreement which has the effect of substantially lessening competition between the parties thereto, and is therefore proscribed by the Trade Practices Act 1974 (Cth) s 45(2)227, is not one which is capable of being sued on as a conspiracy by unlawful means, because the Act itself provides specific remedies for that contravention,228 and in Coomera Resort Pty Ltd v Kolback Securities Ltd,229 Mackenzie J rejected the argument that a conspiracy to cause a breach of a fiduciary relationship is capable of supporting this tort on the basis both that there was neither authority nor dicta to support such a view and that the law relating to fiduciary duties was quite sufficient to deal with persons who had incited a breach thereof. On the other hand, in Maritime Union of Australia v Geraldton Port Authority,230 RD Nicholson J, in the Federal Court, struck out a claim for conspiracy to contravene the Workplace Relations Act 1996 s 298K,231 but solely on the basis that the plaintiff had failed to allege of the defendants a purpose or intention to contravene the terms of that section. The judge did not suggest that such a claim was untenable in any event. And in Dresna Pty Ltd v Misu Nominees Pty Ltd,232 a majority of the Full Court of the Federal Court was prepared to accept that it was arguable that a breach of an undertaking given under the Trade Practices Act 1974 (Cth) s 87B233 can constitute

unlawful means for these purposes.234

The defendant’s state of mind 21.55 This tort is committed when the defendants, by their agreement, intend to cause financial harm to the plaintiff. To bring about that harm need not be their predominant motive, as is required for conspiracy by lawful means (see 21.57), but it is not sufficient merely to show that the conspirators’ conduct necessarily involved injury to the plaintiff, or that the plaintiff was reasonably contemplated as likely to suffer harm.235 Thus, in Lonrho Ltd v Shell Petroleum Co Ltd (No 2),236 the plaintiff operated an oil pipeline in Zimbabwe (then called Southern Rhodesia) which was put out of commission when the United Kingdom Government issued Orders in Council imposing a trade embargo on Southern Rhodesia. The plaintiff [page 638] alleged that the defendants, Shell and British Petroleum, through associated companies, defied the embargo and continued to supply oil to Southern Rhodesia, which caused financial harm to the plaintiff. The action was struck out, on the basis that the plaintiff had alleged no more than that the defendants’ conduct was foreseeably likely to injure the plaintiff, but no allegation was made of their intent to injure the plaintiff.237

Defences 21.56 If the plaintiff’s complaint is that the defendants have conspired to cause injury by the commission of another tort, any matter which may be availed of as a defence to that latter wrong is available in the action for conspiracy.238 If, however, the action is for conspiracy to commit a criminal offence it is difficult to see what defence might be available other than one to be derived from the terms of the statute transgressed. Certainly, the fact that the defendants have acted in defence of their own business or trade interests — a matter which is relevant to conspiracy by lawful means — cannot provide a defence by way of justification for this type of conspiracy.239

Conspiracy by lawful means 21.57 Although it appears to be anomalous,240 it has been accepted by the High Court (in company with the House of Lords241 and the Supreme Court of Canada242) that an act which, while giving rise to no liability if done by one person, becomes a tort if committed by a combination of people, provided that the plaintiff is able to show that each member of the combination carried out the activity with the predominant object of harming the plaintiff in his or her trade, business or other economic interests.

21.58 The High Court decision in which extensive consideration was given to this form of conspiracy was McKernan v Fraser.243 The plaintiffs, who had been members of the Federated Seamen’s Union, joined a breakaway body, the Australian Seamen’s Union, with the consequence that members of the former union made it clear to the employers of casual seafaring labour that they would not sail on any ship for which the plaintiffs had been chosen to serve. The dispute between the two unions came to a head when the plaintiffs were assigned to work on a particular ship, but the employing agency for the ship, after communications from the original union, refused to sign on the plaintiffs. The latter commenced proceedings against members of the original union. Their action for the tort of inducing breach of [page 639] contract failed, as the plaintiffs had not been contractually bound to the shipping company at the time that the defendant union members procured that company not to engage them: see 21.7. Their action in intimidation was also unsuccessful, since the only threats used by the defendant union were that its members would not make themselves available for service — there had been no threat to commit an ‘unlawful act’: see 21.36. The plaintiffs also sought damages for the tort of conspiracy. They succeeded at first instance before a Special Magistrate, and the defendants’ appeal to the Full Court in South Australia was dismissed. The latter then took a further appeal to the High Court. A minority of that court (Gavan Duffy CJ and Starke J) would have upheld the claim in conspiracy. In their view:

It is difficult to believe that the action of the defendant and his fellows was dictated solely or at all by a desire to forward or protect their own interests. The real object of that action was to punish the plaintiffs and prevent them obtaining employment as greasers anywhere in the Commonwealth. The combination, the intent to injure the plaintiff and the resulting damage were established to the satisfaction of the Special Magistrate and on evidence upon which any reasonable man might act, and we see no reason to disturb his findings.244

The majority, however, upheld the appeal. As Evatt J observed,245 liability depends entirely on the motive or purpose of the combination. But to ask, say, the members of a union who are engaged in industrial dispute either with an employer or with a rival union whether they are acting to defend their own trade interests or to injure their economic adversary ‘is equivalent to asking of a soldier who shoots to kill in battle, whether he does so for the purpose of injuring his enemy or of defending his country’. His Honour was consequently of the view that to establish the commission of the tort, the court must be satisfied that the motive or ultimate object, rather than the immediate purpose,246 of the combination is to inflict injury on the plaintiff, or that the defendants were actuated by ‘disinterested malevolence’247 directed against the plaintiff individually rather than as a member of a group with which he or she may be associated.248 The judge did not regard the evidence as establishing such an object. Likewise Dixon J (with whom Rich and McTiernan JJ concurred) was of the view249 that the facts were insufficient to show that ‘the sole, the true, or the dominating or main purpose’ of the defendants’ combining was to injure the plaintiffs; that aim was subsidiary to the object of compelling the plaintiffs to desist from promoting a union in competition with that to which the defendants belonged.

21.59 A further limitation on the possibility of success of an action was made clear by Evatt J in the above case.250 Since the nature of proceedings in conspiracy is that a number have combined with the ultimate object of harming the plaintiff, that party [page 640] must show that all of those who are cited as defendants had the same disinterested malevolence towards him or her. Merely to show that one had that animus, or even that more than one of the defendants shared a personal grudge against the plaintiff, while failing to show that some of the defendants

were actuated by no more than the purpose of defending their own interests, will not be sufficient to establish commission of the tort by all the defendants. The basis of liability is consequently distinct from that for conspiracy to injure by the commission of a tort, where liability may be imposed even on one who did not actively participate in carrying out the tort, so long as that one counselled or procured its commission: see 21.52.

21.60 In the light of the foregoing, it is obvious that a plaintiff faces very considerable difficulty in establishing that this tort has been committed. In any situation of economic or industrial conflict — whether it be between one business and another, one trade union and another, or between a trade union and employers — the plaintiff is unlikely to be able to prove (and the burden lies on him or her)251 that the economic damage suffered is any more than the necessary consequence of the defendants’ pursuit of such goals as the advancement of their trading,252 professional253 or economic254 interests, or the promotion of social, religious or political255 ends. Because of the ‘magic of plurality’, the plaintiff must show that a number of people had combined with the predominant object of waging a vendetta, or furthering a grudge against him or her. But difficult though the task might be, it is by no means impossible. Thus, in Huntley v Thornton,256 what had started out as a difference of opinion between the plaintiff and the district committee of his union concerning the propriety of strike action taken by the union developed into a bitter dispute between the parties. At a stage when the committee had entirely lost sight of the origins of the clash, and ‘thought only of their own ruffled dignity’,257 it purported to expel the plaintiff from the union. Such expulsion prevented the plaintiff from obtaining further employment and, since it was found to be actuated by the collective spite of the members of the committee, was held to constitute an actionable wrong.258 _______________ 1.

In Australia, the Fair Work Act 2009 (Cth) is the major such provision, while in New Zealand the current legislation is the Employment Relations Act 2000 (NZ).

2.

Trade Disputes Act 1906 (UK) s 3, re-enacted in the Trade Union and Labour Relations (Consolidation) Act 1992 (UK) s 219(1).

3.

See Fair Work Act 2009 (Cth) Pt 3-3, Div 2; Employment Relations Act 2000 (NZ) ss 83, 84.

4.

[2008] 1 AC 1; [2007] 4 All ER 545; see Carty, ‘The House of Lords Shapes the Economic Torts and Explores Commercial Confidence and Image Rights’ (2007) 15 TLJ 283; Carty, ‘The

Economic Torts in the 21st Century’ (2008) 124 LQR 641. 5.

[1952] Ch 646; 2 All ER 361.

6.

[1969] 2 Ch 106; 1 All ER 522

7.

Merkur Island Shipping Corp v Laughton [1983] 2 AC 570 at 608; 2 All ER 189 at 195 per Lord Diplock.

8.

See, eg, Woolley v Dunford (1972) 3 SASR 243 at 267 per Wells J; Boral Bricks NSW Pty Ltd v Frost (1987) Aust Torts Reports 80-097 at 68,611 per Brownie J.

9.

[1983] 2 AC 570; 2 All ER 189.

10.

See Lord Diplock, ibid at 609–10; 196–7; see further 21.24.

11.

[2008] 1 AC 1; [2007] 4 All ER 545. See generally Neyers, ‘Causing Loss by Unlawful Means: Should the High Court of Australia follow OBG Ltd v Allan?’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, ch 7.

12.

On the meaning of ‘unlawful means’ for these purposes, see 21.27ff.

13.

(1853) 2 E & B 216; 118 ER 749.

14.

Temperton v Russell [1893] 1 QB 715 (CA) (eg, preventing the plaintiff from making a contract); Brown v Hall (1881) 6 QBD 333 (CA).

15.

Allen v Flood [1898] AC 1; Sorrell v Smith [1925] AC 700; McKernan v Fraser (1931) 46 CLR 343 at 358–9 per Dixon J, at 369–70 per Evatt J. Thus it is not a tort (if there is no conspiracy) merely to induce someone not to enter into a contract.

16.

Greig v Insole [1978] 3 All ER 449.

17.

Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 (FC).

18.

New South Wales Harness Racing Club Ltd v Leichhardt Municipal Council (1997) 97 LGERA 256 (NSWSC).

19.

Zhu v Treasurer of New South Wales (2004) 218 CLR 510; 211 ALR 159.

20.

Stocznia Gdanska SA v Latvian Shipping Co [2002] 2 Lloyd’s Rep 436 (Eng CA).

21.

Cf Department of Transport v Williams, The Times, 7 December 1993 (CA).

22.

Cf Middlebrook Mushrooms Ltd v Transport & General Workers Union [1993] ICR 612 (CA); and see Daishowa Inc v Friends of the Lubicon (1998) 158 DLR (4th) 699 (Ont Gen Div).

23.

Williams v Hursey (1959) 103 CLR 30. Thus, in Greig v Insole [1978] 3 All ER 449, it was World Series Cricket Pty Ltd, and not the cricketers themselves, who had standing to sue in this tort for the measures taken by the International Cricket Committee and the Test and County Cricket Board.

24.

Independent Oil Industries Ltd v The Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 at 414– 15 per Jordan CJ (FC); Short v The City Bank of Sydney Ltd (1912) 15 CLR 148 at 160 per Isaacs J. As to what the plaintiff must plead and prove to demonstrate the requisite intention, see Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 58 FCR 26 at 42–5; 130 ALR 469 at 484–6 per Lindgren J (FC).

25.

Quinn v Leathem [1901] AC 495 at 510 per Lord Macnaghten (HL); South Wales Miners Federation v Glamorgan Coal Co [1905] AC 239 (HL). Conversely, good faith is no defence: Greig v Insole [1978] 3 All ER 449; see 21.19.

26.

(2001) 110 FCR 157; see also British Motor Trade Assoc v Salvadori [1949] Ch 556; 1 All ER

208; Emerald Construction Co Ltd v Lowthian [1966] 1 All ER 1013 (HL). 27.

[2008] 1 AC 1; [2007] 4 All ER 545; see 21.4.

28.

See also LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 at [65] per Besanko J (with the concurrence of Mansfield and Flick JJ) (Fed Ct, FC); Meretz Investments NV v ACP Ltd [2008] Ch 244 at [127] per Arden LJ, at [174] per Toulson LJ (CA).

29.

As occurred in Emerald Construction Co Ltd v Lowthian [1966] 1 All ER 1013 (HL).

30.

See OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545 at [69] per Lord Hoffmann.

31.

British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479; OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545 at [41] per Lord Hoffmann.

32.

See, eg, Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 and 13.44.

33.

DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 677; 2 All ER 361 at 367–8 per Evershed MR; Findlay v Blaylock 1937 SC 21.

34.

See 21.10.

35.

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 516; 139 ALR 193 at 290 (FC) (agreements the breach of which had been procured by the appellant were void, as being in contravention of the now Pt IV of the Competition and Consumer Act 2010 (Cth); no tort committed).

36.

Shears v Mendeloff (1914) 30 TLR 342; Proform Sports Management Ltd v Proactive Sports Management Ltd [2007] 1 All ER 542 (minor’s contract); Said v Butt [1920] 3 KB 497 (mistake); Joe Lee Ltd v Lord Dalmeny [1927] 1 Ch 300 (gaming); British Motor Trade Association v Gray (1951) SC 586 at 604 per Lord Keith (contract in restraint of trade); cf Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 (FC), in which the court determined that the relevant contracts were not in breach of either the Trade Practices Act 1974 (Cth) or common law principles relating to restraint of trade before considering whether the tort had been committed.

37.

De Jetley Marks v Lord Greenwood [1936] 1 All ER 863 at 872 per Porter J.

38.

Doubts were cast on the dictum of Porter J by Evershed MR in DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 689–90; 2 All ER 361 at 375.

39.

(1992) 59 SASR 454; see also Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169; 1 All ER 350 (CA); Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 302–4 per Pincus J (Fed Ct).

40.

McManus v Bowes [1937] 3 All ER 227 (CA); Sid Ross Agency Pty Ltd v Actors & Announcers Equity Assoc of Australia [1971] 1 NSWLR 760 at 765 per Jacobs JA (CA).

41.

See Fair Work Act 2009 (Cth) Pt 3-3 Div 2 and Employment Relations Act 2000 (NZ) ss 83, 84.

42.

Rookes v Barnard [1964] AC 1129; 1 All ER 367 (HL); on the lack, at common law in Australia, of a ‘right’ to strike, see generally Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 640–1 per Brooking J.

43.

Smithies v National Association of Operative Plasterers [1909] 1 KB 310 (CA); cf Denaby & Cadeby Main Collieries Ltd v Yorkshire Miners Association [1906] AC 384 (HL).

44.

Blake v Lanyon (1795) 6 TR 221; 101 ER 521; Fred Wilkins & Bros Ltd v Weaver [1915] 2 Ch 322, but see Jones Brothers (Hunstanton) Ltd v Stevens [1955] 1 QB 275; [1954] 3 All ER 677 (CA), discussed in 21.17.

45.

Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty Ltd [2007] QSC 264 at [102] per Chesterman J.

46.

British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 470 (HL); Pata Nominees Pty Ltd v Durnsford Pty Ltd [1988] WAR 365 (FC).

47.

JT Stratford & Son Ltd v Lindley [1965] AC 269 [1964] 3 All ER 102 (HL); Greig v Insole [1978] 3 All ER 449; Boral Bricks NSW Pty Ltd v Frost (1987) Aust Torts Reports 80-097 at 68,608 per Brownie J.

48.

Long v Smithson (1918) 118 LT 678; British Homophone Ltd v Kunz [1935] All ER Rep 627.

49.

(1986) 7 IPR 581.

50.

See Sidameneo (No 456) Pty Ltd v Alexander [2011] NSWCA 418 at [139].

51.

7 IPR 581 at 625 (the phrase in brackets was added as an addendum when Young JA quoted this passage in the Sidameneo case).

52.

DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 687; 2 All ER 361 at 373–4 per Evershed MR (CA).

53.

Cunard Steamship Co Ltd v Stacey [1955] 1 Lloyd’s Rep 247.

54.

See also Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156 at [89] (defendant must be shown to have intended or procured a breach in the knowledge that such a breach will interfere with the plaintiff’s contractual rights).

55.

Emerald Construction Co Ltd v Lowthian [1966] 1 All ER 1013.

56.

Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at [244] (CA).

57.

But see 21.15.

58.

DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 681; 2 All ER 361 at 370 per Evershed MR, at 694; 378 per Jenkins LJ.

59.

Ibid at 682; 370 per Evershed MR.

60.

Engendered in part by a remark of Evershed MR in DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 686; 2 All ER 361 at 373.

61.

As Evershed MR went on to say in Thomson v Deakin, ibid. On the difficulty of deciding whether there is merely a transmission of information and no inducement, see Cammellia Tanker Ltd v International Transport Workers Federation [1976] ICR 274 (CA).

62.

For example, Jasperson v Dominion Tobacco Co [1923] AC 709 (PC); Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71; SSC & B: Lintas New Zealand Ltd v Murphy [1986] 2 NZLR 436 at 458–9 per Prichard J.

63.

Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 at 147; 1 All ER 522 at 537–8 per Winn LJ (CA), quoted with approval in Woolley v Dunford (1972) 3 SASR 243 at 291 per Wells J. Nor is coercion necessary, persuasion being sufficient: Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 454 (Vic SC).

64.

Bent’s Brewery Co Ltd v Hogan [1945] 2 All ER 570.

65.

David Jones Ltd v Federated Storemen & Packers Union (1985) 14 IR 75 at 79–80 per Waddell J (NSW SC); Boral Bricks NSW Pty Ltd v Frost (1987) Aust Torts Reports 80-097 at 68,608 per Brownie J.

66.

Fabbi v Jones (1972) 28 DLR (3d) 224 (SCC). However, for one business merely to solicit

custom from clients of a competitor is unlikely to have sufficient causative effect to constitute this tort: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 295 per Pincus J (Fed Ct). 67.

Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 at [26]. See also Stocznia Gdanska SA v Latvian Shipping Co [2002] 2 Lloyd’s Rep 436 at [108] (Eng CA) (respondent had merely requested third party to act in breach of contract, but had not directly procured or induced that result).

68.

Said v Butt [1920] 3 KB 497 at 505 per McCardie J; O’Brien v Dawson (1941) 41 SR(NSW) 295 at 308 per Jordan CJ (FC) (aff’d (1942) 66 CLR 18); Rutherford v Poole [1953] VLR 130 at 135–6 (FC); Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231 at [134] per Finkelstein J (Fed Ct); Official Assignee v Dowling [1964] NZLR 578 at 581 per McGregor J.

69.

Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105 at [126]–[130] per Chesterman J; and see Cook Strait Skyferry Ltd v Dennis Thompson International Ltd [1993] 2 NZLR 72 at 78.

70.

[1952] Ch 646 at 678; 2 All ER 361 at 368 per Evershed MR, at 694–5; 378 per Jenkins LJ.

71.

Ibid at 702; 385 per Morris LJ. See also Zhu v Treasurer of New South Wales (2004) 218 CLR 510; 211 ALR 159 at [38]–[41] (wrongful arrest of plaintiff, thus preventing him from fulfilling a contract, found to be within this tort).

72.

Einhorn v Westminster Investments Ltd (1969) 6 DLR (3d) 71 (Sask QB); Thermo King Corp v Provincial Bank of Canada (1981) 130 DLR (3d) 256 (Ont CA); see also Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] QB 142.

73.

[2008] 1 AC 1; [2007] 4 All ER 545 at [28].

74.

DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 694; 2 All ER 361 at 378 per Jenkins LJ.

75.

See De Francesco v Barnum (1890) 63 LT 514, in which an action succeeded against a theatrical manager who continued to employ show girls after receiving notice of a prior inconsistent contract which they had with the plaintiff.

76.

[2008] 1 AC 1; [2007] 4 All ER 545.

77.

See Carty, ‘The Economic Torts in the 21st Century’ (2008) 124 LQR 641 at 658–9.

78.

[1949] Ch 556; 1 All ER 208.

79.

Cf British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479 (HL), in which the defendants were held not to be liable on the ground that they did not have knowledge of the contract.

80.

[1949] Ch 556 at 565; 1 All ER 208 at 211.

81.

[1943] Ch 51; [1942] 2 All ER 639 (CA).

82.

Exchange Telegraph Co v Gregory & Co [1896] 1 QB 147 (CA); Goldsoll v Goldman [1914] 2 Ch 603, on appeal [1915] 1 Ch 292 (CA); Bent’s Brewery & Co Ltd v Hogan [1945] 2 All ER 570. And see Greig v Insole [1978] 3 All ER 449 at 490 per Slade J (it is enough for the plaintiff to show ‘the likelihood of more than nominal damage resulting’ from the defendant’s acts).

83.

[1955] 1 QB 275; [1954] 3 All ER 677 (CA).

84.

O’Dair, ‘Justifying an Interference with Contractual Rights’ (1991) 11 OJLS 227; Jolly, ‘The Defence of Justification and Industrial Action’ (1992) 5 Aust Jo Labour Law 262.

85.

An argument that contributory negligence might be a defence to this tort, or to intimidation or

conspiracy, was rejected by Smellie J in Dellabarca v Northern Storemen & Packers Union [1989] 2 NZLR 734 at 755–7. 86.

See Stirling LJ in Glamorgan Coal Co Ltd v South Wales Miners’ Federation [1903] 2 KB 545 at 577 (CA), referring to Bowen LJ in Mogul Steamship Co Ltd v McGregor Gow & Co (1889) 23 QBD 598 at 618–19 (CA); the comments of Stirling LJ were quoted with approval by Isaacs J in Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 83.

87.

Building Workers’ Industrial Union v Odco Pty Ltd (1991) 29 FCR 104 at 145; 99 ALR 735 at 773 (FC).

88.

[1903] 2 KB 545 at 574–5, approved on appeal sub nom South Wales Miners’ Federation v Glamorgan Coal Co [1905] AC 239 at 252 per Lord Lindley (HL).

89.

And see Temperton v Russell [1893] 1 QB 715 (CA); Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 671–8 per Brooking J; Building Workers Industrial Union v Odco Pty Ltd (1991) 29 FCR 104 at 145–6; 99 ALR 735 at 773–4 (FC) (trade union officials not justified in interfering in order to enforce certain conditions of labour in a particular trade); Read v Friendly Society of Operative Stonemasons [1902] 2 KB 732.

90.

[1924] 1 Ch 302. The decision was approved by Lord Porter in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 495–6; 1 All ER 142 at 175 (HL), but Simmonds J, in Camden Nominees Ltd v Forcey [1940] Ch 352 at 366 treated it as being based on the separate ground of ex turpi causa non oritur actio.

91.

Cf the comments on that case by Jordan CJ in Independent Oil Industries Ltd v The Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 at 416, and those of the High Court in Zhu v Treasurer of New South Wales (2004) 218 CLR 530; 211 ALR 159 at [138].

92.

Northern Drivers Union v Kawau Island Ferries Ltd [1974] 2 NZLR 617 at 623 (CA); Morgan v Fry [1968] 2 QB 710 at 729; 3 All ER 452 at 459 per Lord Denning MR; Davies v Nyland (1975) 10 SASR 76 at 113 per Zelling J (diss); Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union (1987) 54 NTR 6 at 9 per Nader J.

93.

(2004) 218 CLR 530; 211 ALR 159.

94.

By the time the case came to the High Court, that committee had been dissolved, and its rights and liabilities transferred to the respondent.

95.

Ibid at [138]–[144], relying on the judgment of Jordan CJ in Independent Oil Industries Ltd v The Shell Co of Australia Ltd (1937) 37 SR(NSW) 394 at 419–20.

96.

[1988] 3 All ER 801 (CA).

97.

Ibid at 808 per Stuart-Smith LJ.

98.

Greig v Insole [1978] 3 All ER 449 at 492 per Slade J; see also Babcock v Carr (1981) 127 DLR (3d) 77 at 86–7 per Rutherford J (Ont HCJ) (daughter’s inducement of breach of contract of sale of property by mother, because the daughter regarded the price as too low, held not be justified).

99.

New South Wales Harness Racing Club Ltd v Leichhardt Municipal Council (1997) 97 LGERA 256 at 262–3 per Bryson J (NSWSC).

100. See 21.60. 101. See generally Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636 at 646–9 per Brooking J. 102. Lumley v Gye (1853) 2 E & B 216 at 233–4; 118 ER 749 at 756 per Erle J; Jones v Fabbi (1973) 37 DLR (3d) 27 (BC SC).

103. The phrase used by Esher MR in Exchange Telegraph Co v Gregory & Co [1896] 1 QB 147 at 153 was that damages are ‘at large’, but this usage was criticised as being meaningless in Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 76–7 per Knox CJ, at 82 per Isaacs J. 104. [1949] Ch 556 at 568–9; 1 All ER 208 at 213–14; see 21.16. 105. See Carmen v Fox Film Corp 198 NYS 766 (1923); Restatement, Torts (Second), s 918(2) and comment f; Williams, Joint Torts and Contributory Negligence, 1951, p 285: ‘The conclusion submitted is that a plaintiff is never under a duty to mitigate intended damage’. 106. Nash v Copeland (1887) 4 WN (NSW) 41 at 43 per Darley CJ; Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 per Knox CJ; on exemplary damages generally, see 27.10. 107. See, eg, McBride, ‘A Case for Awarding Punitive Damages in Response to Deliberate Breaches of Contract’ (1995) 24 Anglo-American Law Review 369 at 384. 108. [2002] QSC 105 at [156]. 109. See Kitto J in A-G (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 297: ‘a person has a right, a right in rem, in respect of the contractual rights, the rights in personam, which he possesses as against the other party to his contract’, and Wells J in Woolley v Dunford (1972) 3 SASR 243 at 297. In Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] QB 142; [1973] 3 All ER 1057, a mandatory injunction was ordered requiring the reconveyance of a garage sold in breach of a solus tie agreement. 110. Woolley v Dunford (1972) 3 SASR 243 at 295–6 per Wells J. 111. See generally Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, para 24.22 and, in the context of this tort, Rely-a-Bell Burglar & Fire Alarm Co Ltd v Eisler [1926] Ch 609 at 618–19 per Russell J; Davies v Nyland (1975) 10 SASR 76 at 95 per Wells J. 112. See American Cyanamid Co v Ethicon Ltd [1975] AC 396; 1 All ER 504 (HL), establishing a test favoured by members of the High Court (Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651; Murphy v Lush (1986) 65 ALR 651 at 655) and applied in New Zealand: New Zealand Baking Trades Employees’ Industrial Union v General Foods Corp (NZ) Ltd [1985] 2 NZLR 110 (CA). 113. Davies v Nyland (1975) 10 SASR 76 at 102 per Bray CJ; McMahon v Labour Council of NSW (1985) 81 FLR 415 at 420–3 per Kearney J (NSWSC); cf Zelling J in Davies v Nyland at 113, Dartim Shipping Co Ltd v McGuinness (1958) 2 FLR 216 at 218 per Kriewaldt J (NTSC). 114. Harry M Miller Attractions Pty Ltd v Actors & Announcers Equity Association [1970] 1 NSWR 614 at 615 per Street J, applied in David Jones Ltd v Federated Storemen & Packers Union (1985) 14 IR 75 at 82 per Waddell J (NSWSC). 115. Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143 (CA). 116. See generally Neyers, ‘Causing Loss by Unlawful Means: Should the High Court of Australia follow OBG v Allan?’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, ch 7. 117. See, eg, Allen v Flood [1898] AC 1 at 96 per Lord Watson; Quinn v Leathem [1901] AC 495 at 534–5 per Lord Lindley. 118. [1964] AC 1129 at 1177–8; 1 All ER 367 at 380 (HL). 119. [1965] AC 269 at 324; [1964] 3 All ER 102 at 106 and see Viscount Radcliffe at 328–9; 109

(HL). 120. [1952] Ch 646; 2 All ER 361. 121. [1969] 2 Ch 106; 1 All ER 522. 122. [1983] 2 AC 570; 2 All ER 189. 123. [1970] 2 NSWR 47 at 52. 124. [1971] 1 NSWLR 760 (CA). 125. [1991] 1 VR 637 at 667. 126. (1998) 196 CLR 329; 157 ALR 491 at [30] per Gleeson CJ, Gaudron, Kirby and Hayne JJ, Callinan J concurring in a separate judgment. 127. [1984] 1 NZLR 354, relying in part on Fairbairn Wright & Co v Levin & Co Ltd (1914) 34 NZLR 1 (CA); and see Dominion Rent A Car Ltd v Budget Rent A Car Systems (1970) Ltd [1987] 2 NZLR 395 at 438 per Casey J (CA). 128. [2008] 1 AC 1; [2007] 4 All ER 545. 129. Ibid at [44] per Lord Hoffmann. 130. Ibid at [32], [33] per Lord Hoffmann. 131. Ibid at [47] per Lord Hoffmann. 132. Ibid at [49] per Lord Hoffmann. 133. Ibid at [57] per Lord Hoffmann; cf Revenue and Customs Commissioners v Total Network SL [2008] AC 1174; 2 All ER 413 (see 21.53) and the comments of Lord Hope at [43]–[44]. 134. OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545 at [51]. 135. Ibid at [62]–[64] per Lord Hoffmann. For a careful analysis of this aspect of the OBG case, see Carty, ‘The Economic Torts in the 21st Century’ (2008) 124 LQR 641 at 653-8. 136. (1926) 42 TLR 376. 137. [2008] 1 AC 1; [2007] 4 All ER 545 at [24] per Lord Hoffmann. 138. [1990] 2 QB 479; [1989] 2 All ER 65. 139. Lonrho plc v Fayed [1992] 1 AC 448; [1991] 3 All ER 303. 140. [1983] Ch 135; [1982] 3 All ER 771 (CA). 141. See Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 187; [1981] 2 All ER 456 at 462 per Lord Diplock. 142. OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545 at [124]–[125]. 143. Ibid at [130]–[135] per Lord Hoffmann. 144. Ibid at [129]. 145. Ibid at [302] and [319] respectively. 146. [2010] WASC 403. 147. Ibid at [720]. 148. Ibid at [732]. 149. Ibid at [743]–[752].

150. Ibid at [725]–[730]. 151. (2011) 280 ALR 503 (Fed Ct) at [430]. 152. (2001) 118 LGERA 117. 153. The decision of Moore J was upheld on appeal: [2012] Fed Ct, FC 10, on a point not relevant to the applicability of this tort. 154. Sid Ross Agency Pty Ltd v Actors & Announcers Equity Assoc [1971] 1 NSWLR 760 at 766 per Mason JA (CA). 155. Although there are no more than dicta, in Australia and England, to support the view that intimidation may be committed in this two-party situation, it has been applied in Mintuck v Valley River Band (1977) 75 DLR (3d) 589 (Man CA); see further 21.35. 156. As in JGK Nominees Pty Ltd v Printing & Kindred Industries Union (1977) 19 AILR para 239 (Vic SC) and Dollar Sweets Pty Ltd v Federated Confectioners Assoc [1986] VR 383. 157. As was alleged in the Sid Ross Agency case [1971] 1 NSWLR 760 (CA). 158. As occurred in Rookes v Barnard [1964] AC 1129; 1 All ER 367 (HL). The tort of inducing breach of contract is committed only when the defendant procures another wrongfully to fail to perform an existing contract: see 21.7. 159. JT Stratford & Son Ltd v Lindley [1965] AC 269 at 283; [1964] 2 All ER 209 at 216 (CA). See also Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 695–6 per Brooking J (defendants’ actions not found to have coerced individual pilots in their employment decisions). 160. Ibid. 161. See generally 3.1ff. 162. Huljich v Hall [1973] 2 NZLR 279 at 285–6 per McCarthy J (CA). 163. Latham v Singleton [1981] 2 NSWLR 843 at 867 per Nagle CJ at CL; see also Berezovsky v Abramovich [2011] 1 WLR 2290 (CA) at [80]–[86] (intimation that plaintiff’s interests in a commercial venture would be wrongfully expropriated if he did not sell those interests to the defendant regarded as a sufficient threat, since the plaintiff believed that the defendant was in a position to procure that expropriation). 164. In Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 687, Brooking J adverted to the point, but declined to express an opinion thereon. 165. D&C Builders Ltd v Rees [1966] 2 QB 617 at 625; [1965] 3 All ER 837 at 841 per Lord Denning MR; see also Cory Lighterage Ltd v Transport & General Workers Union [1973] ICR 339; 2 All ER 558 (CA), in which the court accepted, without directly adverting to the point, that the plaintiff might have had an action in intimidation based on the threats made to it by the defendant union, and JT Stratford & Son Ltd v Lindley [1965] AC 269 at 283; [1964] 2 All ER 209 at 215– 16 per Lord Denning MR (CA) in which one of his Lordship’s illustrations of intimidation involves two parties only. 166. Pete’s Towing Services Ltd v Northern Industrial Union [1970] NZLR 32 at 41–2 per Speight J. 167. [2011] 1 WLR 2290 (CA). 168. An earlier decision directly supporting an action for two-party intimidation is Mintuck v Valley River Band (1977) 75 DLR (3d) 589 (Man CA). 169. McKernan v Fraser (1931) 46 CLR 343 at 361 per Dixon J (with whom Rich and McTiernan JJ

agreed), at 378 per Evatt J (threat was not to enter into contracts in the future — no intimidation). 170. In the Sid Ross Agency case [1971] 1 NSWLR 760 (CA), the torts allegedly threatened by the defendant were nuisance (constituted by picketing which involved obstruction and besetting) and inducing breach of contract: at 767–8 per Mason JA; while in Huljich v Hall [1973] 2 NZLR 279 the threat was of the wrongful distraint of cattle (the tort was not, however, found to have been committed, since the threat was not accompanied by a demand: see 21.33); see also Bird v O’Neill [1960] AC 907; 3 All ER 254 (PC) (threats to commit a nuisance). 171. [1964] AC 1129; 1 All ER 367. 172. See further Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, para 11.5ff. 173. Ibid, para 13.1ff. 174. JT Stratford & Son Ltd v Lindley [1965] AC 269 at 283; [1964] 2 All ER 209 at 215 per Lord Denning MR (CA). 175. See 21.18. 176. [1981] 2 NSWLR 843. 177. Ibid at 872–5 per Nagle CJ at CL. 178. See also Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union (1987) 54 NTR 6 in which, in interlocutory proceedings, Nader J accepted the availability of the defence in such circumstances, and Dellabarca v Northern Storemen & Packers Union [1989] 2 NZLR 734 at 750–1 per Smellie J, who inclined to favour the views expressed by Nagle CJ at CL. 179. The amount awarded in Mintuck v Valley River Band (1977) 75 DLR (3d) 589 (Man CA). 180. [1981] 2 NSWLR 843. 181. Ibid at 877. 182. Ibid at 878; for further discussion of the damages available both for this tort and the others discussed in this chapter, see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636. 183. Dollar Sweets Pty Ltd v Federated Confectioners Assoc [1986] VR 383 at 390–1 per Murphy J. 184. Holdsworth, History of English Law, Vol VIII, 2nd ed, 1937, pp 392–7, referred to with approval by Viscount Simon LC in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 444; 1 All ER 142 at 148–9. 185. Gregory v Duke of Brunswick (1844) 6 M & G 953; 134 ER 1178 (actor hissed off stage by members of the audience, allegedly at the instigation of the defendant). 186. [1892] AC 25. 187. [1898] AC 1. 188. [1901] AC 495. 189. (1931) 46 CLR 343 (esp the judgment of Evatt J). Also see Little v Law Institute of Victoria [1990] VR 257 at 271 per Kaye and Beach JJ (FC). 190. (1959) 103 CLR 30; cf Coal Miners’ Union (WA) v True (1959) 33 ALJR 224, in which the principles of liability were not in issue before the High Court. 191. [1942] AC 435; 1 All ER 142.

[1992] 1 AC 448; [1991] 3 All ER 303; the House reconsidered the opinion of Lord Diplock in 192. Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; [1981] 2 All ER 456 and concluded that it had been misinterpreted by subsequent courts; their Lordships consequently overruled Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; [1989] 3 All ER 14 (CA). 193. Canada Cement La Farge Ltd v BC Lightweight Aggregate Ltd (1983) 145 DLR (3d) 385 at 398– 9; and see Hunt v Carey Canada Inc (1990) 74 DLR (4th) 321 at 339–40 per Wilson J (SCC). 194. [1968] NZLR 105. 195. [1986] 2 NZLR 436 at 460–1; cf Dominion Rent A Car Ltd v Budget Rent A Car Systems (1970) Ltd [1987] 2 NZLR 395 at 437–8 per Casey J (CA); Dellabarca v Northern Storemen & Packers Union [1989] 2 NZLR 734 at 754–5 per Smellie J. 196. The proposition is to be deduced from the remarks in the Crofter case [1942] AC 435; 1 All ER 142 of Viscount Simon LC at 441; 147 and of Lord Wright at 468; 161. 197. See, eg, Kowbel v R [1954] 4 DLR 337 (SCC); Mawji v R [1957] AC 126; 1 All ER 385 (PC); the rule still applies in Tas: Criminal Code Act 1924 s 297(2); and Vic: Crimes Act 1958 s 339(2). 198. Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496; 2 All ER 193, aff’d [1982] Ch 529; [1981] 3 All ER 744 (CA). 199. R v ICR Haulage Ltd [1944] KB 551; 1 All ER 691 (CCA); R v Blamires Transport Services Ltd [1964] 1 QB 278; [1963] 3 All ER 170 (CA). 200. In Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250; 1 All ER 118 (CA), the company was found not liable in conspiracy with its directors because of its lack of knowledge; no question was raised that the company might lack capacity to conspire. See further Heffey, ‘The Survival of Civil Conspiracy’ (1975) 1 Monash ULR 136 at 182–3. 201. R and A-G (Cth) v Associated Northern Collieries (1911) 14 CLR 387 at 400 per Isaacs J, adopted and applied in Latham v Singleton [1981] 2 NSWLR 843 at 859 per Nagle CJ at CL; cf David Jones Ltd v Federated Storemen & Packers Union (1985) 14 IR 75 at 81 per Waddell J (NSWSC), Posluns v Toronto Stock Exchange (1964) 46 DLR (2d) 210 at 336 per Gale J (Ont HCJ). 202. McKernan v Fraser (1931) 46 CLR 343 at 407 per Evatt J; the Crofter case [1942] AC 435 at 461; 1 All ER 142 at 157 per Lord Wright; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 188; [1981] 2 All ER 456 at 463 per Lord Diplock. 203. Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 389–90 per Dawson J (HCA); Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 at [34]–[40] per Handley JA (CA). 204. [1968] NZLR 105. 205. Ibid at 114. 206. Reitano v Jones (2001) 54 NSWLR 661. 207. Allen v Flood [1898] AC 1. 208. See Latham v Singleton [1981] 2 NSWLR 843 at 875–8 per Nagle CJ at CL (the plaintiff’s claim was for conspiracy to intimidate; the measure of damages has already been considered in 21.41, in the discussion of the tort of intimidation); Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636. 209. Or, perhaps, defamation: Gulf Oil (Great Britain) Ltd v Page [1987] Ch 327; 3 All ER 14 (CA);

Femis--Bank (Anguilla) Ltd v Lazar [1991] Ch 391; 2 All ER 865; cf National Mutual Life Assn of A’asia Ltd v GTV Corp Pty Ltd [1989] VR 747 (FC). 210. [1925] AC 700 at 716 per Lord Dunedin (HL). 211. For example, Watters v May Bros Ltd [1932] SASR 418 at 424 per Piper J; Cabassi v Villa (1940) 64 CLR 130 at 143 per McTiernan J, at 151 per Williams J; O’Brien v Dawson (1942) 66 CLR 18 at 27 per Starke J; Pete’s Towing Service Ltd v Northern Industrial Union [1970] NZLR 32 at 55 per Speight J; Love v Robbins (1990) 2 WAR 510 at 521 per Malcolm CJ (FC). 212. [1977] WAR 116. 213. This view was also adopted by Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 (Fed Ct). 214. (1959) 103 CLR 30, esp at 78–9 per Fullagar J (with whom Dixon CJ and Kitto J concurred). 215. [1981] 2 NSWLR 843. 216. See also Southan v Grounds (1916) 16 SR (NSW) 274 (FC), Coffey v Geraldton Lumpers’ Union (1928) 31 WALR 33 and Coal Miners’ Union (WA) v True (1959) 33 ALJR 224, in each of which the action was for conspiracy to intimidate the plaintiff’s employer and in none of which was the propriety of the pleadings questioned. See also Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637, Goodchild Fuel Distributors Pty Ltd v Holman (1992) 59 SASR 454 and Jiao v Barge [2006] NZCA 168, in all of which allegations of conspiracy to induce a breach of contract were regarded as acceptable causes of action. 217. See Galland v Mineral Underwriters Ltd [1977] WAR 116 at 121. 218. (1903) 29 VLR 475, esp at 503–4 per Madden CJ (FC). 219. [1961] SASR 149. 220. (1958) 12 DLR (2d) 537 (Ont CA). 221. (1959) 103 CLR 30 esp at 109 per Taylor J, at 125 per Menzies J. 222. See, eg, Beach Petroleum NL v Johnson (1993) 43 FCR 1; 115 ALR 411; Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 at [27] per Handley JA. 223. Canada Cement La Farge Ltd v BC Lightweight Aggregate Ltd (1983) 145 DLR (3d) 385; see further Burns, ‘Civil Conspiracy’ (1982) 16 UBC L Rev 229 at 245–6. 224. [1998] Lloyd’s Rep Med 116. 225. [2008] AC 1174; 2 All ER 413; for a trenchant criticism of the decision, based on the uncertainty it brings to an area of the law rendered more certain by OBG Ltd v Allen, see Carty, ‘The Economic Torts in the 21st Century’ (2008) 124 LQR 641 at 660–6. 226. Principally that in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; [1981] 2 All ER 456; see 21.55. 227. See now the Competition and Consumer Act 2010 (Cth) s 45(2). 228. Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 152 per Drummond J (Fed Ct). The judge went on to say that if the plaintiff could show that the defendants’ conduct in breach of s 45(2) had the predominant object of harming the plaintiff, the latter would be permitted to plead the second form of conspiracy, discussed hereunder. 229. [2004] 1 Qd R 1 at 37–38.

230. (1999) 93 FCR 34; 165 ALR 67 at [469]. 231. See now Pt 3-1 Div 3 of the Fair Work Act 2009 (Cth). 232. (2004) ATPR 42-013. 233. See now the Competition and Consumer Act 2010 (Cth) s 87B. 234. (2004) ATPR 42-013 at [19] per Kiefel and Jacobson JJ. See also Edmundson, ‘Conspiracy by Unlawful Means: Keeping the Tort Untangled’ (2008) 16 TLJ 189 at 199–202. 235. Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150 per Drummond J (Fed Ct); Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34; 165 ALR 67 at [442] per Nicholson J; Coomera Resort Pty Ltd v Kolback Securities Ltd [2004] 1 Qd R 1 at 34–5 per Mackenzie J; Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 at [13]ff per Handley JA. 236. [1982] AC 173; [1981] 2 All ER 456 (HL). 237. Ibid at 189; 463. See also the discussion of that aspect of the decision in Lonrho plc v Fayed [1992] 1 AC 448 at 466–8; [1991] 3 All ER 303 at 310–12. 238. See, eg, Latham v Singleton [1981] 2 NSWLR 843 at 867ff per Nagle CJ at CL. 239. Williams v Hursey (1959) 103 CLR 30 at 124 per Menzies J; any failure by the plaintiff to prevent or lessen the effect of the tort will not go in diminution of the damages: Dellabarca v Northern Storemen & Packers Union [1989] 2 NZLR 734 at 754 per Smellie J; Corporacion Nacional del Cobre de Chile v Sogemin Metals Ltd [1997] 2 All ER 917. 240. In that it supports the ‘magic of plurality’: see Pollock (1925) 41 LQR 369. 241. The principles of liability were settled in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435; 1 All ER 142, although the plaintiff did not succeed. 242. See Canada Cement La Farge Ltd v BC Lightweight Aggregate Ltd (1983) 145 DLR (3d) 385 at 398–9 (the action was one for conspiracy by unlawful means, but the court formulated the principles of liability in both aspects of the tort). 243. (1931) 46 CLR 343. 244. (1931) 46 CLR at 354. 245. Ibid at 403, referring to the report of Sir Godfrey Lushington to the British Royal Commission on Trade Disputes (1906, Cd 2825). 246. The distinction is discussed ibid at 399–400. 247. The phrase was apparently coined by Holmes J in American Bank & Trust Co v Federal Reserve Bank 256 US 350 (1921) at 358, was quoted by Cardozo CJ in Nann v Raimist 174 NE 690 (1931) at 695 and adopted by Evatt J in McKernan v Fraser (1931) 46 CLR at 398. 248. Evatt J in McKernan v Fraser (1931) 46 CLR at 397 and 404. 249. Ibid at 362. 250. Ibid at 405–8, disapproving the comments to the contrary by McCardie J in Pratt v British Medical Association [1919] 1 KB 244 at 270. 251. McKernan v Fraser (1931) 46 CLR at 404 per Evatt J. 252. For example, Mogul Steamship Co Ltd v McGregor Gow & Co [1892] AC 25 (HL); Sorrell v Smith [1925] AC 700 (HL).

Thompson v British Medical Association (New South Wales Branch) [1924] AC 764 at 767–70 253. (PC); Little v Law Institute of Victoria (No 3) [1990] VR 257 at 272 per Kaye and Beach JJ (FC). 254. For example, Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435; 1 All ER 142 (HL); Dominion Rent A Car Ltd v Budget Rent A Car Systems (1970) Ltd [1987] 2 NZLR 395 at 415 per Cooke P (CA); Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 690 per Brooking J. 255. Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] 3 All ER 220 (CA) (members of union seeking to prevent racial discrimination). 256. [1957] 1 All ER 234. 257. Ibid at 249 per Harman J. 258. See also Hughes v Northern Coal-Mine Workers’ Industrial Union of Workers [1936] NZLR 781 at 787 per Fair J (an alternative ground for finding for the plaintiff was that his expulsion from the union was predominantly motivated by feelings of ill-will towards him).

[page 641]

CHAPTER 22 Statutory Protection Against Unfair Business Practices1

22.1 Prior to the enactment of the Trade Practices Act 1974 (Cth), a person who suffered loss or damage to business interests by reason of another’s false and malicious statements concerning the goods or services provided by the former was obliged to rely on the tort of injurious falsehood to gain recompense for that loss. And, if the plaintiff suffered a similar loss as a result of misrepresentations by the defendant relating to the latter’s goods and services, the remedy at common law (as distinct from the protection provided by, for example, the Trade Marks Act 1995 (Cth)) lay in the tort of passing off. Furthermore, one who suffered economic loss by reliance on statements known by their maker to be false might recover that loss in an action in the tort of deceit. However, that position changed dramatically with the coming into force of the Trade Practices Act 1974 (Cth) s 52(1) of which provided that: A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Subsequently, each of the states, and the two territories, passed fair trading legislation based on those parts of the federal Act which relate to consumer protection which provided that: ‘A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’,2 thus seeking to ensure a general, and Australia-wide, proscription of misleading or deceptive conduct. The New Zealand Parliament has also recognised the benefits of a legislative prohibition of various forms of unfair trade practices,3 and Pt I of the Fair Trading Act 1986 (NZ) contains a

number of provisions based on the Commonwealth Act of 1974. In particular, s 9 of the New Zealand Act is to the same effect as the Trade Practices Act s 52(1).4 [page 642]

22.2 Further significant legislative changes took effect from 1 January 2011. The Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) inserted, as Sch 2 to the Trade Practices Act, the Australian Consumer Law which not only contains a large number of provisions intended to protect consumers, but also includes s 18, which is to the same effect as s 52 of the Act of 1974. The amending Act of 2010 also changed the name of the Trade Practices Act 1974 to the Competition and Consumer Act 2010 (Cth) and, in s 131, applied the Australian Consumer Law as a law of the Commonwealth to the conduct of corporations. With the same commencement date, the fair trading legislation of each of the states and territories applied the text of the Australian Consumer Law as in force from time to time as a law of the respective jurisdiction.5 The result of these changes is that a provision of the Australian Consumer Law such as s 18 is part of the law of each jurisdiction throughout Australia, and any change to that Law made by the Commonwealth Parliament would apply in each jurisdiction. The Explanatory Memorandum to the Bill for the above amendment stated that: Section 18 of the [Australian Consumer Law] replaces the repealed section 52 of the [Trade Practices] Act. The substance of the drafting of the prohibition has not been changed, other than changing the reference to ‘a corporation’ to ‘a person’. Accordingly, the well-developed jurisprudence relating to section 52 of the [Trade Practices] Act is relevant to the interpretation or understanding of the meaning and application of section 18 of the [Australian Consumer Law].

22.3

As will be explained in this chapter, the subsection has been interpreted as providing protection against a wide range of unfair business conduct some of which would formerly have founded an action for one or other of the three wrongs just referred to. Each of the enactments referred to above contains further provisions which bear a closer resemblance to the torts of injurious falsehood, passing off and

deceit than the general legislative statement already quoted. However, attention in this chapter is concentrated on the Australian Consumer Law s 18(1), since s 18(2) states that ‘Nothing in Part 3-1 [of the Australian Consumer Law] (which is about unfair practices) limits by implication subsection (1)’. After a discussion of the basis upon which liability is imposed for a contravention of s 18, consideration is given to the types of conduct engaged in during the course of trade which fall within the ambit of that section. The chapter concludes with a discussion of the remedies available to one injured by another’s contravention of the section.

Basis of Liability Intention or negligence not relevant 22.4 A failure to comply with s 18 does not involve criminal liability on the part of the person or body responsible, but allows one who is harmed by that conduct to [page 643] seek a civil remedy by way of damages6 or an injunction.7 It is largely for the reason that the section does not involve criminal sanctions that the High Court of Australia held that a trader may be found to have contravened the section despite the lack of any intent to do so.8 And the same court has further concluded that liability may be found even though the trader has acted honestly and exercised reasonable care.9 Section 18, it has been said, ‘is concerned with consequences’;10 once the plaintiff has shown that the defendant’s conduct has in fact led others into error, or is likely to do so, the legislative proscription has been infringed and there is no reason for an inquiry into the defendant’s state of mind. In this respect, liability under this legislation is different from that for the torts it has replaced. Injurious falsehood requires the plaintiff to show malice on the part of the defendant, passing off is committed when injury to another

trader is a reasonably foreseeable consequence of the defendant’s misrepresentation, and deceit is (in general) concerned with a statement that is known by its maker to be false, or is made without regard for its truth or falsity.11

To what entities does the Australian Consumer Law apply? 22.5 The Australian Consumer Law s 18 forbids ‘a person’ from engaging in misleading or deceptive conduct. The question of which entities are included within that word depends on the jurisdiction involved. The Competition and Consumer Act 2010 (Cth) s 131 applies the Australian Consumer Law as a law of the Commonwealth to the conduct of ‘corporations’ which, by virtue of s 6(2)(a) and (h) thereof, when read with s 4(1), includes (for presently relevant purposes) an individual who engages in trade or commerce within the Australian Capital Territory or the Northern Territory, between those territories, between either of those territories and a state or among the states. Furthermore, the word ‘corporation’ is defined as including one that has been incorporated outside Australia,12 and a ‘trading or financial corporation’. The latter concept includes not only a trade association13 but also the Australian Red Cross Society,14 the University of Western Australia15 and possibly a government-owned national broadcaster.16 If a sporting body is not a ‘trading corporation’ for these purposes, it will nevertheless be a ‘person’ for the purposes of the state or territory fair trading legislation, so long as it is duly incorporated.17 The only body found not to come within the notion is a [page 644] municipal council, on the basis that its trading and financial activities comprise only a minor part of its functions.18

22.6 The Competition and Consumer Act s 2A provides that it binds the Crown in right of the Commonwealth, but only ‘in so far as [it] carries on a business’. The fair trading legislation of each of the states (other than

Victoria) and of the territories similarly applies the Australian Consumer Law to the Crown in right of each of those polities but, as with the Commonwealth legislation, the Crown is bound only in so far as it carries on a business19 while in Victoria, the Crown is bound without any limitation or restriction,20 and the New Zealand statute binds the Crown ‘in so far as the Crown engages in trade’,21 a form of words which appears not to limit the application of the legislation any more than the requirement in s 9 that the conduct complained of must have been ‘in trade’, considered below. The limitation, that the Crown is bound only in so far as it carries on a business, has been restrictively construed, with the result that the legislation does not apply to a government department which is conducting a tender, either for the acquisition of goods or services22 or the disposal of assets,23 nor to representations or advice provided by government departments to commercial enterprises.24 For reasons based on the doctrine of Crown immunity, the federal legislation does not bind the Crown in right of a state25 or a territory.26

‘In trade or commerce’ 22.7 Section 18 proscribes only conduct that is ‘in trade or commerce’. And, as has been noted in 22.5, the provision in the federal Act applies to individuals, as distinct from corporations, only when the former are engaged ‘in trade or commerce’ within or between the internal territories or between the states. The New Zealand equivalent, the Fair Trading Act 1986 s 9, refers to the engaging in conduct in ‘trade’, a word which is defined in s 2(1) as including, inter alia, any business or ‘activity of commerce’, and which therefore may be taken to have at least the same meaning as the phrase used in the Australian legislation (and, as is explained in 22.8, may be even wider). It has been emphasised that the words ‘trade’ and ‘commerce’, when used in the federal Act, are not terms of art: They are expressions of fact and terms of common knowledge [and] are clearly of the widest import … They are not restricted to dealings or communications which … have

[page 645]

a dominant objective of profit-making, [but] are apt to include commercial or business dealings [which] are marked by a degree of altruism.27

Furthermore, as well as encompassing ‘traffic by way of sale, exchange or commercial dealing’, the phrase also includes activities relating to intangibles, such as banking transactions, transportation and insurance.28 As the issue has been put in the High Court:29 What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.

Thus, it has been held that conduct coming within the notion includes the publication of advertisements, whether by television30 or in a newspaper,31 the dissemination of promotional brochures32 and the display of a film designed, albeit indirectly, to protect the commercial interests of the members of a trade association.33 Equally, to put out brochures critical of the qualities of a commercial product may be in trade or commerce.34 But to put out an advertisement which is designed to reduce sales of a particular product has been found not to be in trade or commerce.35

22.8 It is not necessary that a person engage in a regular course of conduct for that to be treated as being in trade or commerce. The isolated transaction of a business entity negotiating for the sale of its only business asset,36 or of a friendly society bargaining to sell its principal asset,37 or of a financial institution providing advice and information about a customer to a third party38 are all within the statutory formula. However, for a statement made in the course of negotiating for a contract to be caught by the legislative proscription in Australia, the transaction must be one occurring in a ‘business context’,39 and not, for instance, the sale of one’s home40 or of vacant land that has no business potential.41 In New Zealand, on the other hand, the statutory definition of ‘trade’ would appear to encompass even such dealings as those.42 [page 646]

22.9 There was considerable judicial support for the view that the phrase ‘trade or commerce’ in the Trade Practices Act s 52 included the activities of

professional people.43 The matter has now been put beyond doubt, as the Australian Consumer Law s 2 provides that ‘trade or commerce … includes any business or professional activity (whether or not carried on for profit).’ Because professional politicians do not undertake activities which, of themselves, are productive of financial reward, their statements were generally regarded as not in trade or commerce for the purposes of s 52,44 even though they might be about commercial activity of one sort or another.45 But in view of the breadth of the definition in the Australian Consumer Law, professional politicians may not necessarily be exempt.

22.10 At least some of the activities of governmental bodies — whether federal, state or local — are undertaken in trade or commerce. Thus, when a government department calls for tenders in the process of disposing of commercial assets,46 or promotes and provides particular products,47 it is acting in trade or commerce. But the planning and construction of public roads does not come within the concept,48 and the provision of services by a local authority, since it is done not for reward but as part of its statutory obligations, is not in trade or commerce.49 The courts are apparently keen to ensure that s 18 does not limit, to too great an extent, the freedom to express an individual viewpoint. Thus, publicity directed at swaying the opinions of a local council with regard to the rezoning of land,50 representations to a Minister of the Crown regarding land use,51 or a campaign undertaken in the course of elections for the directors of a company,52 are not in trade or commerce. The same applies to public lectures aimed at promoting a creationist view of history.53

Types of Conduct which Contravene the Statute 22.11 Conduct which is misleading or deceptive, or likely to have that effect, may take a wide variety of forms. It may, for instance, be constituted by a statement (or the creation of a misleading impression) by one person in the course of negotiating [page 647]

for a contract,54 or one which impugns the character of the plaintiff: see further 17.14. The species of conduct with which this chapter is concerned are those approximating to the forms of liability in tort which have been replaced by the statutory provisions, namely (1) conduct of the defendant which denigrates the plaintiff’s products or business, (2) conduct which misleads the public as to the business relationship between the plaintiff and the defendant, and (3) statements made by the defendant on which the plaintiff has relied and thereby suffered loss.

Conduct which denigrates the plaintiff’s business 22.12 A defendant who engages in conduct which (whether expressly or by implication) casts a slur on the goods or services of the plaintiff and which is likely to create a false impression in the minds of those to whom it is directed, has contravened s 18. Such conduct may consist of a statement concerning the plaintiff’s business activities, or be included in the defendant’s promotional material, either by way of exaggerated claims for its own products or by way of a comparison with those of the plaintiff.

False statements regarding the plaintiff’s business 22.13 The defendant’s conduct, in contravening the statutory provision, might take the form of a statement which, to the ordinary reader thereof, is put as one of fact, is untrue and the effect of which is to cast a slur on the plaintiff’s business activities or acumen; an example is a statement made on behalf of the defendant, to a third party, that the plaintiff company was so financially unsound that it would be foolish of the third party to consider doing business with the plaintiff.55 If, however, a statement relating to the plaintiff’s commercial activities is couched in such a way as to make it clear that it is an expression of the author’s opinion, that conduct cannot be regarded as a breach of s 18 unless the author did not hold the opinion expressed; it is only in that circumstance that the maker of the statement can be seen to have misled those who hear or read it, as to the state of the author’s mind.56

Exaggerated claims by the defendant

22.14 Since all advertising is directed towards promoting the advertiser’s product in order to achieve higher sales at the expense of competitors, even that advertising which makes no reference to others in the same field must, by implication, impugn their products to some extent. And, while the public may well have come to expect a certain measure of exaggeration in the puffing by advertisers of their products, there is a limit beyond which the claims will be found to be misleading. For one thing, the more specific the advertising statement, the more likely it is to be capable of disproof. Thus, a claim that a certain toothpaste contained an ingredient which inhibited dental plaque,57 and one that a company was ‘the leader in the rental [page 648] car market for luxury cars’,58 were each found to be false, and in contravention of s 18. For another thing, advertising material which, even if it is not capable of disproof in what is said, creates a misleading impression by what is left unsaid, will also fall within the prohibition of that section.59

Comparative advertising 22.15 Rather than claim merely that its own products are of high quality, the defendant may seek to increase the impact of its advertising by comparing its products with those of a competitor. Although in some cases the rival is specified by name,60 in many it is identified by no more than the colour or shape of its product or packaging,61 or a general reference to other business enterprises in the same field.62 For such advertising to have the desired effect on its audience, the comparisons made must be relatively specific. But the more particular the impression given,63 the more readily is the comparison capable of being proved incorrect. It was this fact which led to the judicial warning,64 which has subsequently been repeated,65 of the need for particular care by those who undertake this form of advertising, to ensure that the statements made are correct.66 Or, as the issue has also been put, ‘the public, although used to exaggeration in describing the virtues of a product, expect comparisons between specific competing products to be reasonably fair and

accurate’.67 But this is not to say that this type of advertising is inherently disreputable,68 or that those who engage in it bear any heavier onus to show the accuracy of their claims.69 Provided that the products are direct competitors, each is entitled to promote its product by fairly and accurately emphasising the points of superiority. [page 649]

Conduct which misleads the public regarding the business relationship between plaintiff and defendant 22.16 The type of conduct with which this part is concerned is that in which the defendant has sought to benefit from the business reputation and goodwill of the plaintiff by presenting goods or services to members of the public in such a way as to mislead them into thinking that those goods or services provided by the defendant come from the plaintiff, or that there is a business connection between the two. The part thus deals with the means afforded by s 18 for a trader to protect encroachments on its business reputation and goodwill. Protection of those intangible assets is also available under a variety of specialised statutory schemes relating to copyright, designs, patents, trade marks and business names. A consideration of those schemes is outside the scope of this book70 and, in any case, their purpose is different from that of s 18. Those statutes create exclusive rights in the holder of the particular relevant form of industrial and intellectual property, subject to the conditions specified in each statute. Section 18, on the other hand, being aimed at the prevention of misleading or deceptive conduct, will only incidentally enable a successful plaintiff to enjoy an exclusive right to the way in which it presents its goods and services.71 Thus, even though the design of the defendant’s product is strikingly similar to that of the plaintiff’s, the former will not have breached s 18 if there is a sufficient indication, such as by a label on the product, as not to mislead intending purchasers as to its manufacture.72 Or, if the defendant’s advertising material used a photograph of a person bearing a

very close resemblance to a well-known entertainer, it will not have contravened s 18 if it also makes clear that the photograph is not that of the entertainer.73 For a plaintiff to gain the protection afforded to its business reputation by s 18 it must show: either (1) a similarity between the public presentation of its goods or services and that of the defendant’s or (2) the unauthorised use of the plaintiff’s personality which (3) misleads the persons to whom the defendant’s conduct is directed. The determination of these questions is a matter of objective fact, to be arrived at by the court on the basis of all the available evidence. It has therefore been held that proof, from the results of surveys and the like, that some members of the public have arrived at an erroneous conclusion as to the business relationship between the plaintiff and defendant is ‘merely of peripheral value’.74

Similarity in public presentation 22.17 The means by which a person presents goods or services to the public may be rendered distinctive either by the form in which they are marketed — their get-up — or by the verbal description applied to them, or by both these means. The [page 650] defendant will be found to have contravened s 18 if the get-up or description which is employed is deceptively similar to that used by the plaintiff.

22.18 Get-up Whether the ways in which a trader packages a product are such as to be in breach of the statutory provision must be a matter of circumstance and degree, depending upon the overall impression gained by the court. Although there is no express recognition of the point, it is a fair inference from the decisions to date that similarity in get-up alone will only on the rarest occasions be regarded as deceptive;75 it is generally when a similarity in get-up is coupled with a close correspondence in the words used to refer to the product that s 18 will be held to have been breached. So a contravention was found when not only the emblem and grille of

motor cars sold by the defendant bore a close resemblance to those of the plaintiff but also the name ‘Phaeton’ used by the defendant was very like the ‘Phantom’ of the plaintiff,76 or when both the style of packaging of bed linen by the defendant, and the name ‘Bart-Mills’ thereon, were compared with the plaintiff’s style of packaging, and the name ‘Bradmill’.77 On the other hand, there has been held to be no infraction of the section in relation to the layout and design of the defendant’s cookery books,78 or the jars and labels in which instant coffee was sold,79 or by the use of the colour purple in the packaging of chocolates.80 Conversely, if the get-up of the defendant’s product is markedly different from that of the plaintiff, the fact of some similarity in the words used to describe that product is unlikely to be regarded as a breach of the section;81 even identical words may be used without infringing the section, if the get-up is sufficiently distinctive.82

22.19 Verbal identification In determining whether the words used by the defendant in presenting goods or services to the public (or a section thereof) are deceptively similar to the verbal description employed by the plaintiff, the courts have tended to draw a distinction between a collocation of words which is purely descriptive of the business carried on by the plaintiff, or the products sold by it, and words which are either inventive, or used in a sense different from their ordinary meaning. [page 651] With regard to words used by the plaintiff that are no more than descriptive, it is unlikely that an imitation of them by the defendant will, as a general rule, be regarded as a contravention of s 18. As Stephen J explained, in the Hornsby Building Information Centre case83 in reference to a descriptive trade name: Because it is descriptive it is equally applicable to any business of a like kind, its very descriptiveness ensures that it is not distinctive of any particular business and hence its application to other like businesses will not ordinarily mislead the public.

In the result, the appellant’s trade name of the ‘Hornsby Building Information Centre’ was held not to be likely to mislead the public into thinking there was a connection between it and the respondent Sydney Building Information Centre. Similarly, the phrase ‘Concours d’Elegance’ has been held to be no

more than descriptive of a fashion parade for motor cars,84 and ‘Saint Germain’, even when used on women’s clothes, as descriptive only of an area in Paris,85 and hence not sufficiently misleading when used by rival traders.86 However, even a word or phrase which, when first applied to the plaintiff’s goods or services, is no more than descriptive thereof, may come to be so closely associated in the minds of the public with the plaintiff that it will be held to be deceptive for the defendant to employ the same word or phrase, in relation to goods or services of the same general type. Thus, plaintiffs who sold food additives in aerosol cans under the name ‘Pure and Simple’ were held to be entitled to protection against the defendants’ use of the same phrase on their mustard,87 and the words ‘Test’ or ‘Test Series’, when used in relation to cricket matches, have been regarded as so closely identified with matches controlled by the Australian Cricket Board as to prevent their use by other cricket organisers.88 Furthermore, if the plaintiff has established such a close association with a particular description, the defendant (if a corporation) may be enjoined from using its registered name89 or, if an individual, from using his or her given name.90

22.20 When the words used by the plaintiff are either concocted, or bear little relationship to the type of goods or services presented, it is much easier to show that use of a colourable imitation by the defendant is in contravention of s 18, provided [page 652] that both parties are involved in the same general field of activity. Thus, the use of the phrase ‘Nike Sports Fragrance’ has been held to be likely to mislead the public as to any connection between its manufacturer and that of sporting goods made by Nike International Ltd,91 while a group of popular musicians who adopted the name ‘INXS’ were held entitled to prevent the defendant from using that name on men’s clothing,92 while another group, calling themselves ‘Popular Mechanics’, were able to prevent a rival band from adopting a similar title.93 Similarly, a Japanese restaurant which used two Chinese characters in its advertising and as the name of its establishment was held entitled to prevent another Japanese restaurant nearby from using the same characters.94

On the other hand, if the plaintiff and the defendant put unrelated products on the market, the use by the latter of a word or words coined by the former is regarded as unlikely to mislead or deceive. It has, therefore, been held that ‘Big Mac’ may be applied to a wine, despite the extensive use of that phrase to describe hamburgers,95 and that ‘Lego’, when applied to irrigation equipment, would not lead consumers into the error of thinking that the distributor was connected with the company that sold children’s toys under the same name.96

Unauthorised use of plaintiff’s personality 97 22.21 Although relief will only rarely be granted, it is open to a plaintiff to show a breach of s 18 if the defendant has used a representation of the plaintiff’s personality or character in such a way as to mislead the public into thinking that the plaintiff has consented to this use. In Pacific Dunlop Ltd v Hogan,98 the appellants, in advertising one of their products, had employed words and pictures which were designed to evoke in the public memories of a scene from a film in which the respondent had appeared. A majority of the Full Court of the Federal Court, concurring with the decision at first instance,99 held that the portrayal would have given to its viewers the incorrect impression that the respondent had agreed to it and had derived a commercial advantage from its use.100 It is not only the defendant’s portrayal of a personality developed by the plaintiff that can lead to a breach of s 18. The same [page 653] principle applies when the defendant uses a photograph of the plaintiff,101 a cartoon character102 or an animal103 in a way which would mislead the public into thinking that there is a business connection between the plaintiff and the defendant. However, it is not every use of another’s name or image which will contravene the statutory provision. Thus, inadvertently to employ the name of a well-known personality, though applied to a person who bears little physical resemblance to the plaintiff is not a breach of s 18,104 nor is the use

of a photograph of the plaintiff merely as a pictorial representation without any clear relationship between it and the defendant’s business activities.105 Similarly, a representation of the plaintiff which is obviously no more than a caricature is unlikely to contravene the section, as the public would not imagine that the plaintiff had consented to its use.106

Consumers must be misled 22.22 Although there may be a similarity between either the get-up or the trade name used by the plaintiff and that employed by the defendant, or the defendant may have used a character or personality developed by the plaintiff, it is only when the defendant’s conduct is such as to mislead or deceive the persons at whom it is aimed that there will be a contravention of s 18. This aspect of the application of the sections has relevance in relation to three issues: (a) the fact that confusion in the minds of the public is not sufficient to prove a breach; (b) the type of audience to whom the defendant’s conduct is directed; and (c) the effect given to the defendant’s disclaimer of a trade connection with the plaintiff.

22.23 Confusion not sufficient It has been stressed on a number of occasions107 that it is not sufficient, to show a breach of s 18, for the plaintiff to establish only that the public is confused, or might be led to wonder whether there is a trade relationship between the parties. This conclusion is to be drawn from the words of the section. It has been observed108 that ‘to mislead’ and ‘to deceive’ are synonymous, in that both mean ‘to lead into error’. And, since the legislative proscription is on conduct (of a person or corporation) which leads others into error, it is clear that the section can be breached only if the defendant’s activities are such that others are so led. For members of the public to fall into error, as a result of any preconceived ideas which they might have, does not involve a contravention of the provision. It is for this reason that there has been held to be no breach of s 18 in those cases already referred to109 in [page 654]

which the defendant has used a trade name similar, or identical, to that employed by the plaintiff, but in a substantially different field of activity. Although consumers of the relevant products might have cause to wonder whether there is a business relationship between the plaintiff and the defendant, that is regarded as springing from a misconception as to the exclusivity of trade names, rather than the conduct of the defendant. It has, however, been suggested that if any uncertainty in the minds of members of the public has been deliberately induced by the defendant, it would be more easy for the court to infer that the relevant audience has been misled, rather than merely confused. 110

22.24 Type of person to whom conduct is directed The conduct of the defendant must be judged by reference to the type of person to whom it is directed. The more discriminating they are likely to be, the less the similarity between the defendant’s and the plaintiff’s presentation to the public will be misleading or deceptive. Hence, if the defendant’s goods are sold in a supermarket and are relatively inexpensive, a buyer is likely to be misled by a likeness in the trade description, even if applied to different types of food product.111 But if those goods consist of large items of furniture of considerable expense, a label which distinguishes the defendant’s product from that of the plaintiff has been held to be sufficient to prevent deception, since the purchaser is expected to be more discerning.112 And, if the defendant provides services to a relatively limited class of people, such as investors113 or travel agents,114 the latter may reasonably be expected to dispel for themselves any doubt arising from a similarity in nomenclature between the defendant and the plaintiff. In order to consider the effect of the defendant’s conduct, it is also relevant to consider the geographical location of the persons to whom those activities are directed. It is only if people in that area are also aware of the plaintiff’s business that a similarity between their respective trade names is likely to mislead or deceive them. Hence, an organisation which operated a large number of restaurants in North America under the name ‘Taco Bell’ was not entitled to prevent the defendant from conducting a similar business, under the same name, in Sydney; to the contrary, the local concern was granted relief from the North American

[page 655] corporation commencing operations in that city.115 The same principles apply in relation to products which are widely known within only one state in Australia.116

22.25 Disclaimers Although the defendant’s business name or get-up bears a very strong resemblance to that of the plaintiff, the former may seek to argue that it has dispelled any resultant misleading or deception by indicating that there is no trade connection between the two concerns. However, such attempts have generally been unsuccessful, largely because such a disclaimer is usually far less conspicuous than the factors which go to create the misleading impression, and is unlikely to be sufficiently readily understood by the persons to whom the deceptive conduct is aimed.117 Furthermore, for the defendant to make it clear that it has no business affiliation with the plaintiff might itself be regarded as misleading conduct, since it could convey a derogatory impression of the plaintiff.118

Statements relied on by the plaintiff 22.26 A further aspect of the application of s 18 to provide protection against unfair business practices is that the conduct which is there proscribed includes the defendant’s making of a statement to the plaintiff or, subject to some qualifications, the former’s failure to speak. The circumstance in which, in this respect, the statutory provision has most commonly been relied on is that in which the statement was made by the defendant in the course of its negotiation for a contract with the plaintiff; the matter is therefore considered in textbooks on the law of contract.119 But s 18 has also been availed of when, for example, an agent for the intending vendor of property has made a statement to a prospective purchaser, resulting in the agent being liable to the purchaser,120 when a bank misleads a customer about the probity of one of the bank’s agents,121 when a bank gives incorrect advice to its customer about the soundness of a commercial venture upon which the latter proposes to embark,122 and when an insurance company makes false statements either to its own

[page 656] client123 or to clients of a rival insurance company.124 In none of these situations are the parties negotiating for a contract, but in each the plaintiff has suffered economic harm by reason of the defendant’s conduct. The application of s 18 to statements is therefore equally relevant for consideration in a text on the law of torts. Section 18 may be availed of either when the defendant has made a statement to the plaintiff on which the latter may reasonably rely or, in some circumstances, when the defendant has failed to speak. Each of these alternatives is considered in turn below. The section concludes by dealing with the effect (if any) of the defendant’s disclaimer of liability.

Statements upon which the plaintiff may reasonably rely 22.27 Although there is no clear judicial statement to that effect, it is strongly arguable that a prime requirement for a statement to be a contravention of s 18 is that it is of such a nature, in the light of the circumstances in which it was made, as to be reasonably relied on by the plaintiff. The statutory proscription speaks of ‘conduct that is misleading’, a verbal formulation which appears to demand a causal connection between the defendant’s conduct and the plaintiff’s being led into error.125 And such a causal link is present only when the defendant’s conduct (the statement made to the plaintiff) is such as may reasonably be relied on; only in such a circumstance can it be said that it is the statement, and not any misapprehension on the plaintiff’s part, that has been an effective cause of the latter’s erroneous appreciation of the situation. The judicial comment which best bears out these views is that of a majority of the High Court in Yorke v Lucas.126 The appellant had purchased a business, part of the inducement for the purchase being a misstatement by the vendor as to the turnover. The incorrect figures had been repeated to the appellant by the vendor’s agent, Ross Lucas Pty Ltd and, in earlier proceedings127 Fisher J, in the Federal Court, had held that company to have contravened the Trade Practices Act s 52. In the proceedings which went to the High Court, the appellant’s action was against Mr Lucas, a director of the

corporate agent, for reasons which are discussed in 22.53. In the course of their judgment, a majority of the High Court (Mason ACJ, Wilson, Deane and Dawson JJ) cast some doubt on the correctness of the conclusion arrived at by Fisher J in the proceedings against the company. Their Honours acknowledged that the section might be contravened unwittingly, the defendant having neither intended to deceive nor been negligent in misleading: see 22.4. They continued:128 That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive.

[page 657] Since the Lucas company had not appealed from the decision of Fisher J, it was unnecessary for the High Court to develop their views further. However, that court has subsequently held129 that a real estate agent who provided copies of a survey report relating to land being offered for sale had impliedly represented no more than an honest and reasonable belief that the copies were genuine, and had not represented that the survey itself was accurate. The estate agent was consequently found not to be in breach of the statutory proscription.

22.28 The same conclusion follows from other circumstances which would deny a basis for reasonable reliance on the maker of a statement. Thus, in Saints Gallery Pty Ltd v Plummer130 the appellant gallery had sold four paintings to the respondent, the director of the former having passed on details of the history and provenance of the works, as related to him by their former owner. Although those details turned out to be incorrect, the respondent was held not to have a claim under the Trade Practices Act s 52. He had previously acted as the gallery’s valuer, and consequently knew that its owners would have little expertise in determining the authenticity of the paintings. The respondent could not, therefore, reasonably have placed reliance on the statements made on behalf of the appellant.131

Unfortunately, in many instances courts have tended to rely on concepts developed in the general law relating to misrepresentation in determining whether there has been a breach of s 18. In particular, the approach developed of classifying the statement as one of fact, opinion or prediction, and then drawing an inference from that classification as to the circumstances in which a defendant might contravene the section. While this attitude may in some cases be a useful methodology, it is not necessary and has, at times, led to a distortion of the application of the provision. Each of the above judicial classifications will be considered in turn, for the purpose of substantiating the thesis advanced. The discussion concludes with a consideration of the circumstances in which an extravagant description entails a breach, and of the significance to be placed on the plaintiff’s ability to obtain assurance, from independent sources, of the reliability (or otherwise) of the defendant’s statement.

22.29 Statements of existing fact If the defendant has couched the statement as one of existing fact, and it is incorrect, the courts have little difficulty in finding therein a contravention of s 18. After all, this approach accords with the traditional view of the kind of statement which constitutes a misrepresentation, for the purpose of seeking equitable relief from a contract induced thereby.132 Thus, a false statement as to the current turnover of a business,133 or that made by a lessor that the lessee was not in arrears of rent134 or one made by an insurance broker that the plaintiff’s [page 658] truck was insured,135 have each been held to be in breach of the section. While each of these statements may readily be classified as ones of existing fact, it is also plain that in each case the maker of the statement had a better source of information than its recipient, and that it was such as might reasonably have been relied on by the latter.

22.30 Statements of opinion The approach generally taken by the courts to a statement classified as one of opinion shows very clear echoes of the attitude traditionally taken by the general law to misrepresentations. For instance, in Bateman v Slatyer,136 Burchett J said:

It is of course clear law that a statement of opinion cannot be regarded as false or misleading, or as misleading or deceptive, simply because it turns out to be incorrect: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88; 55 ALR 25 at 31. But such an opinion may convey that there is a basis for it, that it is honestly held, and, when it is expressed as the opinion of an expert, that it is honestly held upon rational grounds involving an application of the relevant expertise: see James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372; Geale v Glenhoun Holdings Pty Ltd (1985) ATPR 40-615 at 46,987–9.

The implicit assumption behind this comment, expressed more fully in some of the judgments referred to, is that if the defendant, when expressing an opinion, does not have a rational basis therefor, he or she is to be regarded as conveying a false impression as to the state of his or her mind, and for that reason contravening the statutory proscription.137 Two comments may be made on this approach. First, the courts have previously, on a number of occasions, drawn an analogy between actions under the Trade Practices Act and in deceit, especially for the purpose of assessing damages under the legislation: see 22.50. But, in relation to the common law action similar to that for deceit — proceedings for negligent misstatements — the High Court has observed138 that ‘the distinction between information and advice is an unnecessary and often difficult one to draw’. Since there is no difference in principle between, on the one hand, information and a statement of fact and, on the other, advice or opinions, it may be regarded as a retrograde step for the judiciary to reerect a distinction between statements of fact and of opinion, for the purposes of determining liability under the Australian Consumer Law, based on an outmoded view of the grounds of relief from a contract. Secondly, the passage quoted above refers to a statement being ‘false’, despite the fact that the legislative proscription does not use that word. While a false statement will, almost invariably, be misleading139 it is not the only type of utterance which might have that effect. A statement by an expert, proposing a certain course of action to one with little knowledge of the relevant field of expertise, is very likely to lead the recipient into believing that the course of action is advisable. If such turns [page 659] out not to be the case, the recipient will have been led into error; s 18 will

have been infringed because the recipient was entitled reasonably to rely on the statement, but that reliance was misplaced.

22.31 It may be observed that the courts are moving away from the approach of classifying a statement either as one of opinion or as one of fact, and are more concerned with the issue of whether the defendant’s conduct was likely to mislead. Thus, in Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd,140 French J observed that the ‘generality of s 52 does not support any limitation that would exclude from its operation conduct inducing error of law’. The judge went on to make the point141 that: [A] representation of law may be made in different ways which send different messages to the recipient. It may do no more than convey what is, on the face of it, the untutored opinion of the representor. As such, it would be unlikely, if wrong, to constitute misleading or deceptive conduct.

This approach has recently been supported by the High Court of Australia. In Forrest v Australian Securities and Investments Commission,142 the appellant, the chief executive officer of Fortescue Metals Group Ltd, had publicly announced that the company had entered into binding agreements with three Chinese companies to finance and build a mine, railway and port in Western Australia. The High Court, reversing the decision of the Full Court of the Federal Court, held that that statement was not in breach of the statutory proscription. In coming to that conclusion, the court observed143 that the respondent Commission: …sought to describe what was conveyed as a matter of fact, submitting that ‘the words “agreement” or “binding agreement” convey that it is an agreement containing all of the essential elements that would constitute a contract under Australian law’. While it is to be doubted that the proposition which [the respondent] identified is accurately, or at least sufficiently, described as a statement of ‘fact’, it is ultimately unprofitable to attempt to classify the statement according to some taxonomy, no matter whether that taxonomy adopts as its relevant classes fact and opinion, fact and law, or some mixture of these classes. It is necessary instead to examine more closely and identify more precisely what it is that the impugned statements conveyed to their audience.

The court considered that the assumed audience — present and possible future investors in the appellant company — would take what was said ‘as a statement of what the parties to the agreement understood that they had done and intended would happen in the future’.144 Viewed in that light, the statement was not capable of misleading. Moreover, if attention is directed to the decisions arrived at by the court, rather than the reasoning employed, in those cases where the issue has turned

on an initial classification of a statement as one of opinion, it will be found that in each instance a breach of the statutory proscription has been held to have occurred only when the statement was such that, in all the circumstances, it might reasonably have been relied on by the person to whom it was made. In Bateman v Slatyer,145 the statements made by the defendants related to the profitability of a franchising arrangement; [page 660] it was made by the directors of the company which was to grant the franchise, to persons who had only a little knowledge of the type of business involved. The statements turned out to be inaccurate, and were held to constitute a contravention of s 52.146 On the other hand, a statement which, when viewed in context, was clearly no more than an estimate of a company’s future profitability is unlikely to constitute a breach of s 18.147

22.32 Predictions If a plaintiff seeks to show that a statement made in the form of a prediction constitutes a contravention of s 18 (as distinct from related provisions in the legislation, to which reference will shortly be made), the better view is that it is necessary merely to establish that the statement was made in such circumstances that it might reasonably have been relied on, and that the plaintiff has been led into the error of believing that the predictions will come to pass. Such was the approach adopted by Fox J in Brown v Jam Factory Pty Ltd148 and by Northrop J in Mr Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd.149 In both cases, the statements which were regarded as transgressing the legislation were made by the respective owners of shopping malls then under construction, and concerned the nature and volume of business. In the Jam Factory case, Fox J drew a distinction between a breach of the Trade Practices Act s 52 and (on the pleadings in that case) s 53A (see now the Australian Consumer Law ss 18 and 30). His Honour observed150 that some of the paragraphs in the latter section refer ‘to false (or misleading) statements’, and that a breach thereof entails penal consequences, factors which differentiated that provision from s 52 (a distinction which was maintained in the Fair Trading Acts and now in the Australian Consumer Law s 152). It was because of those distinctive factors, the judge continued,

that in relation to alleged breaches of sections other than s 52 the courts ‘look to past or present facts, including therein, as facts, statements of present belief respecting future events — along the lines since developed in the law concerning misrepresentation’.151 In relation to the sections which involve a criminal sanction for their breach, therefore, a prediction would constitute a contravention only if its maker had no reasonable belief, at the time of making it, that the predicted events would occur.

22.33 After the amendment of the Trade Practices Act in 1986 inserting s 51A into that Act (a change incorporated into the state and territory legislation and now found in the Australian Consumer Law s 4) the onus of proof relating to a lack of reasonable belief that a future event will occur has been shifted. By s 4(2) of that Law, it is for the defendant to prove that he or she had such a belief, rather than for the plaintiff to prove its lack. However, that provision is quite clearly concerned only with proof of the breaches of sections other than s 18. The Explanatory Memorandum to the Commonwealth amendment in 1986 referred to the difficulties encountered with those provisions relating to the making of false statements, and cited as an example [page 661] of those difficulties a decision on a prosecution to enforce the penal sanctions for a breach of the Trade Practices Act s 59.152 Furthermore, by virtue of what is now subs 4(3) of the Australian Consumer Law, the other subsections thereof are expressed not to limit by implication the meaning of a reference in the legislation to conduct that is misleading. It is to be regretted that subsequent judgments, in general, overlooked the very clear distinction drawn by Fox J in the Jam Factory case between the type of conduct that might infringe the Trade Practices Act s 52 and that which might be an infraction of those sections of that Act which attracted criminal liability. Thus, in Stack v Coast Securities No 9 Pty Ltd,153 Fitzgerald J remarked that a number of judges in the Federal Court had consistently taken the view that a prediction could be a breach of both s 52, as well as ss 53 and 53A, of the Trade Practices Act only if its maker did not believe the statement or was recklessly indifferent to its truth or falsity. And,

in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd,154 the Full Court of the Federal Court observed that predictions involve the state of mind of their maker, with the consequence that such a type of statement might be a contravention of s 52 only if the person making it had no basis for the prediction. Not only are these remarks contrary to the basis of the decision in both Brown v Jam Factory Pty Ltd155 and Mr Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd,156 but they are also difficult to reconcile with the attitude of the High Court of Australia to the meaning of the statutory proscription. The latter court has stressed (see 22.4) that that section may be infringed despite the lack of any intention to deceive, or the want of reasonable care in making a statement. The judicial observations referred to above appear to subvert that approach by first classifying the statement as a prediction and then demanding, for the statement to constitute a contravention of the section, an inquiry into the state of mind of the maker thereof.

22.34 Fortunately, there has been some evidence of a judicial swing back towards the views expressed by Fox and Northrop JJ. In Wheeler, Grace & Pierucci Pty Ltd v Wright,157 Lee J, sitting as a member of the Full Court of the Federal Court, made the point that a contravention of s 52 involves different issues from those raised when the question is whether there has been a misrepresentation. His Honour continued:158 Section 52 is directed at conduct of a corporation in trade or commerce as part of an Act concerned with the elimination of unfair trading practices which affect persons with whom a corporation may deal, or which may have an impact in trade or commerce that is regarded as adverse and undesirable. A positive unqualified

[page 662] prediction by a corporation may be misleading conduct in trade or commerce if relevant circumstances show the need for some qualification to be attached to that statement or the possibility of its non-fulfilment to be disclosed as a requirement of fair trading. The fact that the corporation believed or had reasonable grounds for belief that the prediction would be fulfilled, would not answer the question as to whether the conduct was misleading or deceptive conduct in trade or commerce. The misleading or deceptive conduct may be found in the failure to qualify the statement or disclose the risk of non-fulfilment and the event of non-fulfilment of a prediction or promise may be evidence that raises an inference that such a risk of nonperformance existed or that qualification of the positive statement, prediction or promise was required. Each case will depend upon its own circumstances, but the assessment of misleading

or deceptive conduct is an objective test not dependent upon the proof of an intent to mislead or deceive on the part of a corporation (see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1) and restriction of the application of s 52 in respect of promissory or predictive statements by a corporation to conduct of the corporation which involves a lack of belief on the part of the corporation or absence of grounds upon which the corporation could form such a belief would be inconsistent with the thrust of the section.159

Heerey J, in Bowler v Hilda Pty Ltd,160 having quoted the above remarks of Lee J with approval, went on to observe161 that a prediction might have been a breach of s 52, whether or not the defendant had established the matters set out in what is now the Australian Consumer Law s 4, a view concurred in by Cooper J in the same case.162

22.35 Extravagant description Since the touchstone of finding a breach of the statutory proscription is the reasonable reliance placed by the plaintiff on the defendant’s statements, thus leading the former into error, it may be accepted that a wildly extravagant claim made by the defendant could not have that effect. A statement which, of its nature, could not lead any person into the error of believing it can scarcely be such as to be relied on. But the borderline between the preposterous statement and that which is merely colourful, and which may be reasonably relied on, is obviously difficult to draw. If, in the general law relating to misrepresentation, the description of a stock broking business as ‘a goldmine’ is assumed to be a misrepresentation,163 there is no reason to doubt that the claim that goods are ‘fascinating’, ‘priceless’ or ‘unique’ could well lead their recipient into error, and thus constitute a contravention of s 18.164 However, consider a brochure prepared to advertise the sale of a house, using the words ‘Nothing to Spend — Perfect Presentation’ which were regarded as being used in a context where some hyperbole is to be expected, and did not convey any representation about the structural integrity of the house.165 [page 663] While a colourful or exaggerated statement might be such as to mislead an ordinary person, it has been suggested that the same words, when spoken to a plaintiff who is known by the defendant to be commercially astute and not likely to be taken in by them, would not infringe the statutory proscription.166 Although this limitation appears to pay little regard to the legislative phrase

‘likely to mislead’, it is difficult to contest the conclusion that one who is proved not to have been misled cannot rely on the statutory protection afforded by s 18.

22.36 Plaintiff’s ability to check The legislation as originally written proscribed not only conduct that was likely to mislead the ordinary person but also conduct that did in fact mislead the particular person to whom it was directed. This meant that a statement which misled a particular individual might render the maker thereof liable, even though the speaker had acted in all innocence and the recipient might readily have ascertained the reliability (or otherwise) of the statement. Such a result was sharply at odds with liability in tort for statements which cause loss. The balance which the common law arrived at is that (i) if a statement is made fraudulently (that is, with knowledge of its falsity and with the intent to deceive) its maker will be liable in damages, however gullible the recipient might be and however easy were the opportunities of verification;167 and (ii) if a statement is made negligently, the damages recoverable by the recipient will be reduced, under the apportionment legislation, if that person has failed to take reasonable care (on an objective basis) for the protection of his or her own economic interests.168 But the Trade Practices Act s 52 did not differentiate between statements made fraudulently, negligently or with all due care (see 22.4), nor (as a consequence) did the legislative provisions relating to remedies contemplate the notion of contributory negligence.169 Hence, the High Court of Australia held, in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd,170 that a defendant was liable for all the consequences of a misleading statement, even though the plaintiff’s losses were due, in part, to its failure to safeguard its own financial interests. In that case the respondent valuers had provided a misleading valuation of property upon the security of which the appellant had been asked, by the owner of the property, to advance money. The loan having been made, the borrower defaulted on repayments, and the appellant sought to recover its losses from the respondent valuer. Although the Queensland Court of Appeal171 reduced the appellant’s damages by one-third on account of its failure to make any check on the financial viability of the borrower, the High Court overturned that decision and allowed the appellant to recover its losses in full.172 The Federal Parliament subsequently abrogated the effect of the High Court decision, and inserted a provision which permitted the

reduction of a plaintiff’s damages to reflect the extent to which the plaintiff’s failure to take reasonable care to protect his [page 664] or her own interests contributed to the extent of the loss.173 A provision to the same effect is the Competition and Consumer Act 2010 (Cth) s 137B. However, when the Trade Practices Act was amended in 2004 none of the state and territory legislatures followed suit. And when those legislatures amended their fair trading legislation with effect from 1 January 2011 (see 22.2) each jurisdiction adopted only the text of the Australian Consumer Law; provisions such as s 137B are not part of state or territory law. This means that a person who seeks damages for a breach of s 18 can prevent the defendant from raising a defence based on any possible lack of care on the part of the plaintiff by relying only on the fair trading legislation of one of the jurisdictions.174

Failure to speak175 22.37 Although s 18 may be more often called in aid when the defendant has made some positive statement which misleads the plaintiff, a contravention of the provision can also be constituted by a failure on the part of the defendant to apprise the plaintiff of circumstances within the defendant’s knowledge. This proposition has been derived from the words of s 18 itself, but is fortified by the Australian Consumer Law s 2(2)(a) and (c), by virtue of which a reference to ‘engaging in conduct’ shall be read as including a reference to ‘refraining (otherwise than inadvertently) from doing’ an act. The various circumstances in which an omission will be regarded as a contravention of the proscription include: (a) failing to correct a statement after a change in the situation; (b) failing to correct a misleading impression created by the defendant; and (c) failing to prevent the plaintiff from falling into an error of which the defendant is aware.

22.38 Effect of a change in circumstances Under the general law, a

statement, once made, is regarded as continuing in effect until either its recipient takes some step in reliance thereon or its maker retracts it.176 The same principle holds true under the legislation. The result is that if a defendant makes a statement which, at the time of making, is accurate and incapable of misleading the plaintiff, but which becomes capable of misleading by reason of a subsequent change of circumstances, the defendant is under a duty to apprise the plaintiff of that change, so long as the defendant is aware of it. The failure to do so will constitute a contravention of s 18.177

22.39 Correction of a misleading impression A statement, or conduct of any sort, may be misleading not because of what is said or done, but because of what is left unsaid. Provided that the defendant has assisted, by one means or another, [page 665] to create an impression in the mind of the plaintiff which the defendant must have realised would lead the plaintiff into error, the latter can successfully claim that there has been a breach of the legislative proscription. The defendant’s conduct may consist, for example, of the display of a used motor vehicle for sale with a false odometer reading, and no qualification thereto,178 or statements by a vendor about the takings of his or her business without reference to the fact that those takings were enhanced by illegal trading.179 The conduct may also consist of showing property to an intending purchaser without revealing the difficulties of gaining road access thereto,180 or of putting a proposal to members of a society that provides inadequate reference to the pitfalls in the proposition.181 The defendant’s conduct need not, however, be so positive and unqualified. It has been held that a breach of s 18 will be committed if, in the course of negotiations for a contract, the plaintiff’s natural expectations of the future course of events are bolstered by remarks of the defendant, rather than being dispelled on the defendant’s becoming aware of them. Similarly, when the pattern of conduct between two parties, established over a number of years, would have led one of them reasonably to expect the other to divulge information about goods which the parties traded, failure to apprise the plaintiff of material facts about a consignment of copper was held to be a breach of the Trade Practices Act s

52.182 If, in other words, both the acts and omissions of the defendant, taken as a whole, can fairly be said to have caused the plaintiff to be misled, s 18 has been contravened.183

22.40 Failure to correct a mistake In the situations referred to under the two preceding headings, it can be said at a very general level that the plaintiff has been led into error (at least in part) by the activities of the defendant. Where, however, the plaintiff has fallen into error, unaided by any conduct of the defendant, it would appear to be a fair inference from the relevant decisions that the defendant will be found to have contravened the legislative proscription (when that section is read with the interprative provisions already referred to) if the defendant was aware, or ought reasonably to have been aware, that the plaintiff was labouring under a serious misapprehension. In Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd,184 the respondent had put on the market a product which could only be used as a fungicide, but, by reason of its failure to register the product under appropriate state laws, purchasers thereof were exposed to the risk that the product might be seized by the appropriate [page 666] state authorities. A majority of the Full Court of the Federal Court, in an action brought by a trade rival, held that the respondent’s conduct had not breached s 52, but the essential reason for that decision appears to have been that it had not been shown that the respondent either knew, or ought to have known, that purchasers had fallen into the error of believing that the product complied with state law.185 The dissentient, Jackson J, on the other hand, viewed the facts slightly differently, and concluded186 that the respondent ought at least to have been aware that purchasers would have been labouring under a serious misapprehension with regard to the product. His Honour therefore took the view that the respondent had contravened s 52. An approach similar to that of the majority in the above case was taken in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd.187 The appellant had arranged insurance for the respondent, under which the latter was under the impression that it was covered against default by a

company to which it had lent money. Although the Victorian Court of Appeal held that the appellant had breached the section by failing to reveal vital aspects of the insurance, the High Court upheld the appeal, pointing out that the appellant had sent the respondent a certificate of insurance and had no reason to believe that the respondent was not fully aware of the terms of the insurance.188 And, when the plaintiff builder suffered loss by reason of the financial collapse of a developer with whom the plaintiff had been dealing, a claim under the statutory proscription against the developer’s banker failed.189 The action was based on the banker’s omission to advise the plaintiff of the financial difficulties facing the developer, but it was held that the plaintiff could have no reasonable expectation that a banker would divulge to third parties confidential information about its customers. The defendant banker consequently had no reason to know of the plaintiff’s error as to the developer’s financial capacity.190

Disclaimer of liability 22.41 A person who makes a statement which is on its face misleading or deceptive may seek to disclaim the liability which would flow therefrom, by reason of the breach of s 18, in one of two ways. Either, the statement may be coupled with a qualification the purpose of which is to rob the former of its reliability, or, if the statement is made in the course of negotiating for a contract, its maker may propose the inclusion of a term in the resulting contract, whereby the recipient of the statement acknowledges that he or she has not relied on it in deciding to conclude the bargain. While the first of these methods may be effective, the second is likely not to be.

22.42 Qualifying the original statement It has been said on a number of occasions that, in determining whether conduct constituted by a statement comes [page 667] within the statutory proscription, regard must be had to the overall impression

reasonably to be gained by the person to whom the statement was made.191 As a majority of the High Court made clear, in Butcher v Lachlan Elder Realty Pty Ltd,192 information which is merely passed on by a person for what it is worth, with an express or implied disclaimer of any belief in its truth or falsity, would be unlikely to be regarded as misleading or deceptive. In the light of these comments, it would appear that if a person makes a statement which is sufficiently qualified as to indicate to its recipient that he or she may not reasonably rely on the maker thereof, the latter will not be held to be in breach of the statutory proscription. So long as the qualification robs the initial statement of any misleading effect it might otherwise have had, it can no longer be said that it is the defendant’s conduct which has led the plaintiff into error.193

22.43 Exclusion clause in a subsequent contract A defendant who makes a misleading or deceptive statement in the course of negotiating for a contract and then attempts to disclaim any liability therefore by the insertion of a clause in the resulting bargain will not be able to achieve that end by reliance on the clause alone. This result follows, whether the clause states that the plaintiff has relied on its own skill and judgment, and not on the statements made to it,194 or the clause takes the form of an acknowledgment that the plaintiff has not relied on any statement made by the defendant and that the contractual document constitutes the whole of the agreement between the parties.195 The reason for this denial of effect to an exclusion clause is that the issue of whether a person has engaged in misleading or deceptive conduct is one solely for the court to determine. If the judge finds as a fact that the conduct of the defendant was such as to induce the plaintiff into error, that inducement will not be negated solely because the plaintiff has stated to the contrary in a contractual document. Not unnaturally, the fact that the plaintiff has so stated bears upon the weight to be given to evidence to the contrary, but he or she is not estopped from denying the true state of affairs.196 Certainly, if the contractual document is printed, and in common form, it will not be difficult for the plaintiff to establish the misleading effect of the defendant’s statements, and to deny any true assent to the terms of the exclusion clause.197

[page 668]

Remedies 22.44 The Australian Consumer Law s 18 does not provide any remedy for its infraction. Those remedies are provided for in Pt 5-2 of that Law. The principal remedies are an injunction and damages, although the legislation also provides for other compensatory orders to be made, including declarations that a contract is void either ab initio or for the future, a requirement that money transferred be repaid, and the like. Each remedy is discussed in turn.

Injunction 22.45 The Australian Consumer Law s 232, which is the statutory head of power for the grant of injunctive relief, is in the widest possible terms. The section permits the grant of an injunction at the instance of ‘any … person’; it authorises the issue of an injunction restraining a person from engaging in conduct that is, or would be, misleading or deceptive, or the aiding, abetting, counselling or procuring thereof. Section 234 empowers the courts, if it is thought desirable to do so, to grant an interim injunction pending determination of the matters in dispute. The circumstances in which this type of relief is most often sought are those in which the defendant’s conduct is alleged to have misled or deceived the public regarding the business relationship between the plaintiff and defendant: see 22.16. The order may simply require the defendant to desist from that conduct, or may be positive in form and, at least in a case of comparative advertising (see 22.15), oblige the defendant to publish corrective advertisements.198 It may not be availed of as an adjunct to a claim for damages, as a means of preventing the defendant from dissipating assets in order to render a judgment nugatory.199 The legislation grants to courts a wider power than that available in the exercise of an equitable jurisdiction: see 27.49. It is possible, for instance, for an injunction to be granted under s 232(4), despite the fact that the defendant has not engaged in the prohibited conduct, nor intends to do so in the future,

and despite the fact that there is no imminent danger that the plaintiff will suffer substantial damage.200 But, notwithstanding the width of the power, the legislation is to be read in terms of granting the courts a discretion to make the relevant order, rather than requiring an order to be made unless the subject thereof can demonstrate grounds for its not being made.201 The exercise of the power granted by s 232 is similar, in that respect, to the operation of the court’s equitable jurisdiction. In the case of a final order, the onus is still on the plaintiff, having demonstrated an infraction of a statutory prohibition, to show that an award of damages would not be an appropriate remedy. Similarly, in the case of an interlocutory order, the plaintiff must demonstrate both [page 669] that there is a prima facie case that there has been misleading or deceptive conduct and that the balance of convenience favours the making of an order.

Damages 22.46 The Australian Consumer Law s 236 provides (so far as presently relevant) that if a person suffers loss or damage because of the conduct of another person that was done in contravention of the statutory proscription on misleading or deceptive conduct they may recover the amount of the loss or damage by action against that other person. The remedy provided for by this section is the one invariably availed of when the contravening conduct has been constituted by a statement made by the defendant to the plaintiff: see 22.26. If the defendant’s conduct was such as to mislead the public as to the business relationship between the parties (see 22.16), the plaintiff may elect to recover under this section a fair and reasonable approximation of the profits derived by the defendant from that conduct,202 or, in appropriate circumstances, damages for the harm done to the plaintiff’s reputation.203 While the terms of the provision are almost as broad as those of s 18, most of the difficulties associated with its interpretation have been resolved by the

Federal Court (and, on appeal, the High Court of Australia) in considering the earlier provision of the Trade Practices Act s 82(1). Those courts have derived assistance from the principles both of contract and tort relating to the assessment of damages, but it has often been stressed that the common law can do no more than provide a guide to the way in which the provision is to be applied.

Nature of the loss recoverable 22.47 A threshold question arises in the application of s 236: whether the plaintiff should be entitled to be compensated for the amount by which he or she is worse off as a result of the defendant’s conduct, or whether the plaintiff should recover the amount expected to be gained, had there been no misleading conduct. The former means of assessment is that generally applied in an action in tort, while the latter is the normal measure on a breach of contract. Although it had at one stage been indicated204 that the rule generally to be followed was to assess damages in a way analogous to that used in tort, both the New Zealand Court of Appeal205 and the High Court of Australia206 have subsequently observed that such analogies might themselves be misleading, and that the application of the statutory provision requires no more than an assessment of the loss which the plaintiff is able to show was caused by the defendant’s conduct in contravention of the section. [page 670]

Causal connection 22.48 The Trade Practices Act s 82, in permitting an award of damages under that Act, referred only to loss or damages suffered ‘by conduct’ that was in contravention of the legislative proscription, and did not expressly require a causal link between the defendant’s conduct and the loss claimed by the plaintiff. However, it was held by Fox J, in Brown v Jam Factory Pty Ltd,207 that some such causal connection is obviously necessary, and this view was applied consistently thereafter. Section 236 ensures the

continuation of that approach, as it uses the phrase ‘because of the conduct’. The establishment of a chain of cause and effect is a question of fact, dependent upon all the circumstances of the particular case and, in actions under s 236, subject to the general principles discussed in 9.5. When the defendant’s conduct in breach of s 18 is constituted by a statement made to the plaintiff, the necessary causal link will not have been established if the court is satisfied that the plaintiff would have acted in the same way even if no such statement had been made.208 Although the fact of a misleading statement, followed by action by the plaintiff, may raise an inference that the one has caused the other, the ultimate onus of establishing that link rests on the plaintiff.209 He or she will have discharged that onus once it has been shown that the statement played a part in the decision for further action, even though the plaintiff may have been motivated by other, extraneous, reasons.210 Furthermore, even if the plaintiff establishes that his or her subsequent actions would not have occurred but for the defendant’s misleading statement, it must still be shown that the plaintiff’s actions have led to a loss. Thus, when borrowers entered into loan agreements on the faith of statements by the defendant lender as to the interest rate to be charged, which statements turned out to be incorrect and misleading, the borrowers could not recover damages under the Trade Practices Act s 82. Even though they would not have entered into the loan but for the inducement of that misleading statement, they were not able to show that they could have borrowed the money at a rate of interest lower than that actually charged by the defendant. They were, in consequence, unable to show that they had suffered any loss.211

Extent of liability 22.49 Section 236 makes no reference to the extent of the loss or damage which may be recovered thereunder. In an action in negligence for the damage suffered by a misstatement, the defendant is liable only for those losses which can reasonably be foreseen as resulting from reasonable reliance on the statement: see 13.39. But if the plaintiff’s action is in deceit, the consequential losses to which he or she is entitled are all those which are a direct consequence of the making of the false statement: see 23.28. On a

number of occasions it has been suggested that limitations along the same lines as those applicable in a negligence action should be applied to an action for statutory damages,212 but the High Court has indicated, in this respect as with [page 671] questions as to the nature of the loss recoverable, that analogies with the general law are misplaced, and that it is simply a matter of applying the words of the statute to the facts at hand.213

22.50 The situation in which the extent of the defendant’s liability is of most concern is that in which the plaintiff has been induced, by the defendant’s conduct in contravention of s 18, to purchase or commence a business venture or to purchase a profit-making chattel, such as a truck. The issue is the amount which the plaintiff may recover, as representing losses suffered in carrying on the business, or continuing to operate the chattel. For some time, the resolution of this matter in actions under the Trade Practices Act was clouded by the fact that, in actions at common law in deceit, a rule of practice had developed that such consequential losses were not recoverable. However, with the recognition by the High Court, in Gould v Vaggelas,214 that such losses were a part of the damage properly recoverable by the plaintiff in an action in deceit, there has been no difficulty in allowing consequential losses in an action for statutory damages. Thus, in Neilsen v Hempston Holdings Pty Ltd,215 the plaintiff, who was persuaded to purchase a motel as a result of the defendant’s misleading statements, was held entitled to recover inter alia (a) the losses incurred in operating the motel,216 even for a limited period after discovering that he had been misled,217 on the basis that it was not unreasonable to allow him some time in which to consider his position, and (b) the cost, in interest payments, of borrowing money to carry out the transaction.218 And, in Bartley v Myers,219 an accountant who had misled a bank as to the expected profits of a business to be purchased by a customer of the bank was held to be liable for the losses suffered by that customer. Although it was the bank which was misled, that misleading conduct caused the bank to lend the customer the money for the purchase, and the losses suffered by the purchaser were not too

remote a consequence. Similarly, in Travel Compensation Fund v Tambree,220 a firm of accountants who prepared financial statements for the purpose of allowing a travel agent to participate in a compensation fund were held liable for losses suffered by the fund even when the agent continued trading, despite being no longer licensed; those losses were part of the risk to which the fund was exposed and from which it had sought protection from the respondents’ financial statements. [page 672] In appropriate circumstances, the damages awarded may include a sum representing the distress and inconvenience suffered by the plaintiff as a result of the defendant’s conduct in contravention of the section,221 and compensation may also be awarded for damage to the plaintiff’s reputation, whether the plaintiff is an individual or a corporation.222 But the terms of the legislation limit the damages to those which will compensate the plaintiff for the loss. As a consequence, exemplary damages are not available thereunder.223

Limitation period 22.51 Section 236(2) provides that the statutory right to damages is subject to a six-year limitation period.224 Central to the application of that provision is the determination of the time at which a cause of action accrues. The High Court has made it clear225 that time can start to run only when the plaintiff has suffered a real and present loss, in an ascertained or ascertainable amount which would be recoverable there and then by proceedings under the statute. The date on which the defendant engaged in the conduct in contravention of s 18 is irrelevant. Thus, if a person has been induced by the misleading conduct of another to enter into a guarantee of a third party’s indebtedness, the cause of action for that misleading conduct crystallises, and the limitation period starts to run, only when the creditor seeks to enforce the rights under the guarantee.226 And, if the defendant’s conduct is constituted by a statement as to the future, time begins to run under the statute only when the predicted event fails to materialise.227 It may, furthermore, be assumed that if the

plaintiff’s claim is for consequential losses, as discussed above, the limitation period commences, for each head of loss, when the damage is suffered.228

22.52 The limitation period imposed by s 236(2) is distinct from that imposed by general statutes of limitation. By virtue of the latter, the imposition of the bar to an action is postponed during the plaintiff’s minority or disability (see 28.30ff), but this rule does not apply to a claim under the Australian Consumer Law.229 Similarly, general statutes of limitation allow for the delay of the commencement of the period for such time as the defendant has deliberately prevented the plaintiff from discovering the existence of a cause of action (see 28.33), but the six-year period under s 236(2) is not affected by such conduct by the defendant.230 [page 673]

Other persons who may be liable 22.53 Section 236 grants to the person who suffers loss or damage as a result of the contravention of, inter alia, s 18, the right to claim damages not only against the person who breached the section but also ‘any person involved in the contravention’. The same was true under the Trade Practices Act s 82(1), when read with s 75B of the same Act. One reason for the inclusion of the latter section was to enable one who was damnified by a breach of, inter alia, s 52 to sue not only a corporate defendant but also any director or employee of that corporation. Since the Australian Consumer Law prohibits, inter alia, misleading or deceptive conduct of ‘a person’, a plaintiff is able to rely solely on s 236 of the Australian Consumer Law when commencing proceedings against either an individual or a corporation. Section 75B of what is now the Competition and Consumer Act 2010 (Cth) has been amended and applies principally to actions by the Australian Competition and Consumer Commission for civil pecuniary penalties.

Other compensatory orders 22.54 The Australian Consumer Law s 237(1) provides that, on application of a person who has suffered, or is likely to suffer, loss or damage because of

the conduct of another person that was, among other things, misleading or deceptive, a court may make ‘such order or orders as the court thinks appropriate against the person who engaged in the conduct’. The only limit on the width of such an order is that it must be one which the court considers will either compensate the injured person or prevent or reduce the loss suffered or likely to be suffered by that person. Section 243 provides some examples of the orders which may be made under s 237, including declaring a contract or part thereof void ab initio or prospectively avoided, varying a contract, refusing to enforce all or any of the provisions of a contract or ordering the refund of money or the return of property. Section 237 is a development from the Trade Practices Act s 87, under which orders have been made, for example, to vary a lease entered into between the parties to the action, by deleting various onerous clauses and retrospectively reducing the rental payable thereunder,231 to vary a contract of purchase by reducing the price to the amount actually paid by the purchaser,232 to vary a chattel lease by relieving the lessees from any future liability thereunder,233 and to award aggravated damages.234 Section 237(3) permits an application to be made under that section at any time within six years after the plaintiff’s cause of action accrued. _______________ 1.

See, generally, Lockhart, The Law of Misleading or Deceptive Conduct, 3rd ed, 2011.

2.

Fair Trading Act 1992 (ACT) s 12(1); Fair Trading Act 1987 (NSW) s 42(1); Consumer Affairs and Fair Trading Act 1990 (NT) s 42(1); Fair Trading Act 1989 (Qld) s 38(1); Fair Trading Act 1987 (SA) s 56(1); Fair Trading Act 1990 (Tas) s 14(1); Fair Trading Act 1999 (Vic) s 9(1); Fair Trading Act 1987 (WA) s 10(1) (emphasis supplied).

3.

NZ Parl Debs, 31 July 1986, pp 3283–4.

4.

Section 9 states: ‘No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’, while s 2(1) defines ‘person’ as including ‘any association of persons whether incorporated or not’.

5.

Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 7; Fair Trading Act 1987 (NSW) s 28; Consumer Affairs and Fair Trading Act 1990 (NT) s 27; Fair Trading Act 1989 (Qld) s 16; Fair Trading Act 1987 (SA) s 14; Australian Consumer Law (Tasmania) Act 2010 (Tas) s 6; Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8; Fair Trading Act 2010 (WA) s 19; references in the remainder of this chapter to these Acts are to the jurisdiction alone.

6.

Australian Consumer Law s 236.

7.

Australian Consumer Law s 232.

8.

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; 18 ALR 639.

9.

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1.

10.

See, eg, the Hornsby Building case (1978) 140 CLR 216 at 228; 18 ALR 639 at 647 per Stephen J.

11.

These torts are considered in Chapter 23.

12.

See, eg, Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539; 149 ALR 134 (FC).

13.

Australian Beauty Trade Suppliers Ltd v Conference & Exhibition Organisers Pty Ltd (1991) 29 FCR 68; 99 ALR 474 (FC).

14.

E v Australian Red Cross Society (1991) 27 FCR 310 at 344; 99 ALR 602 at 634 per Wilcox J (aff’d on other grounds (1991) 31 FCR 299; 105 ALR 53 (FC)).

15.

Quickenden v O’Connor (1999) 91 FCR 597; 166 ALR 385 at [40]–[52] per Lee J.

16.

See the remarks of Burchett J in interlocutory proceedings in Sun Earth Homes Pty Ltd v Australian Broadcasting Corp (1990) 98 ALR 101 at 110–11; in giving judgment on the substantive issues, Wilcox J left the issue open (1993) 45 FCR 265 at 278.

17.

Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241 (NSWSC).

18.

Mid Density Developments Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 at 585 per Davies J; but such a body is a ‘person’ and thus bound by the relevant Fair Trading Act.

19.

ACT Pt 2 Div 2.4; NSW Pt 3 Div 4; NT Pt 4 Div 4; Qld Pt 3 Div 4; SA Pt 3 Div 3; Tas Pt 2 Div 4; WA Pt 3 Div 4.

20.

Vic s 4.

21.

NZ s 4(1).

22.

Corrections Corp of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448; Sirway Asia Pacific Pty Ltd v Commonwealth [2002] FCA 1152.

23.

McMillan (JS) Pty Ltd v Commonwealth (1997) 77 FCR 337; 147 ALR 419.

24.

McMullin v ICI Australia Operations Pty Ltd (1997) 72 FCR 1 at 101–2 per Wilcox J; New South Wales v RT & YE Falls Investments Pty Ltd (2003) 57 NSWLR 1 (CA) at [33]; cf Easts Van Villages Pty Ltd v The Minister [2001] NSWSC 559 at [131]–[140] per Mathews AJ.

25.

Bradken Consolidated Ltd v Broken Hill Pty Ltd (1979) 145 CLR 107; 24 ALR 9; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399.

26.

Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212; 76 ALR 173.

27.

Re Ku-Ring-Gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621 at 638–9 per Deane J (Fed Ct).

28.

Ibid at 624–5 per Bowen CJ.

29.

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604; 92 ALR 193 at 197.

30.

Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 (Fed Ct).

31.

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61 (FC).

32.

Larmer v Power Machinery Pty Ltd (1977) 14 ALR 243 (Fed Ct); Sykes v Reserve Bank of Australia (1997) 151 ALR 579 at 592 per Tamberlin J (Fed Ct); aff’d (1998) 88 FCR 511; 158 ALR 710 (Fed Ct, FC).

33.

Glorie v WA Chip & Pulp Co Pty Ltd (1981) 39 ALR 67 (Fed Ct).

34.

Pharmaceutical Management Agency Ltd v Researched Medicines Industry Assoc NZ Inc [1996] 1 NZLR 472; Firewatch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520.

35.

Tobacco Institute of Australia Ltd v Woodward (1993) 32 NSWLR 559 (publicity for antismoking campaign).

36.

Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334 (FC); Morton v Black (1988) 83 ALR 182 (Fed Ct); Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49.

37.

Ramage v Sharp (1993) ATPR 41-242; aff’d (1995) 12 WAR 325 (FC).

38.

Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542; 55 ALR 709.

39.

Hence, statements made to an employee concerning the terms of employment are outside that field: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92 ALR 193, as are statements by an employee about the employer’s business: Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 (Fed Ct).

40.

Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112 at 127–31; 94 ALR 719 at 733–7 per Hill J.

41.

O’Brien v Smolonogov (1983) 53 ALR 107 (Fed Ct).

42.

NZ s 2(1); the definition includes any ‘undertaking relating to … the disposition or acquisition of any interest in land’.

43.

See, most recently, the discussion by Campbell JA in Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205 at [328]–[351].

44.

Durant v Greiner (1990) 21 NSWLR 119 at 128–9 per Rolfe J.

45.

Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; 107 ALR 709 (statements about price of wool not in trade or commerce); cf Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd (1994) ATPR (Digest) 46-130 (Vic SC) (representations by state Treasurer about financial strength of building society found to be in trade or commerce).

46.

McMillan (JS) Pty Ltd v Commonwealth (1997) 77 FCR 337; 147 ALR 419.

47.

Sykes v Reserve Bank of Australia (1998) 88 FCR 511; 158 ALR 710 (FC).

48.

Powell v Tasmania (2001) 10 Tas R 283.

49.

Mid Density Developments Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 at 585 per Davies J (the issue was not relevant on appeal (1993) 44 FCR 290; 116 ALR 460 (FC)); a fortiori the gratuitous supply of blood from a blood bank is not in trade or commerce: E v Australian Red Cross Society (1991) 27 FCR 310 at 350–1; 99 ALR 602 at 641 per Wilcox J (aff’d on other grounds (1991) 31 FCR 299; 105 ALR 53 (FC)).

50.

Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 (Fed Ct); see also Tobacco Institute of Australia Ltd v Woodward (1993) 32 NSWLR 559.

51.

Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 139 FCR 330 at [51]– [53] (FC).

52.

Yates v Whitlam (1999) 32 ACSR 595 (NSWSC).

53.

Plimer v Roberts (1998) 80 FCR 303; 150 ALR 235 (FC).

54.

See also Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 11.102ff.

55.

Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 72 ALR 643 at 674–7 per Spender J; see also Commercial Bank of Australia Ltd v Insurance Brokers Assoc of Australia (1977) 16 ALR 161; cf Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 285 per Pincus J (defendant’s statements not such as to be taken seriously by person to whom they were made, hence no contravention of s 52).

56.

Industrial Equity Ltd v North Broken Hill Holdings Ltd (1986) 64 ALR 292 esp at 300–1 per Burchett J; but see 22.30 on statements classified as being of opinion in other circumstances.

57.

Colgate-Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 391.

58.

Dewhirst v Budget Rent-a-Car System Pty Ltd (1985) 8 FCR 1 (FC).

59.

Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1985) 6 IPR 227 (in that case, the defendants were also in breach of the section by reason of the falsity of some of their statements).

60.

State Government Insurance Commn v JM Insurance Pty Ltd (1984) ATPR 40-465; Union Carbide Australia Ltd v Duracell Australia Pty Ltd (1986) 7 IPR 481 (point of sale advertisements); Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40918; Foxtel Management Pty Ltd v Australian Video Retailers Ass’n Ltd (2004) 214 ALR 554 (Fed Ct).

61.

Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161; Hanimex Pty Ltd v Kodak (A’asia) Pty Ltd (1982) 1 TPR 1; Calsil Ltd v TVW Enterprises Ltd (1984) ATPR 40,451; Union Carbide Australia Ltd v Duracell Australia Pty Ltd (1986) 7 IPR 481 (TV advertisements); Makita (Aust) Pty Ltd v Black & Decker (A’asia) Pty Ltd (1990) ATPR 41-030.

62.

Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483; Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627; and see Colgate-Palmolive Pty Ltd v Smithkline Beecham Holdings (Australia) Pty Ltd (1997) 39 IPR 147 (Fed Ct) (statement of ‘no bleaches’ in defendant’s product sufficient to show comparison being made with that of the plaintiff).

63.

See, eg, Telstra Corp Ltd v Optus Communications Ltd (1997) ATPR 41-541, where the court looked to the impression given by the defendant’s advertisements, rather than a precise analysis of the words used.

64.

Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161 at 163 per Lockhart J.

65.

Insurance Commr v Australian Associated Motor Insurers Ltd (1982) 45 ALR 391 at 397 per Northrop J; State Government Insurance Commn v JM Insurance Pty Ltd (1984) ATPR 40-465 at 45,362; Hospitals Contribution Fund case, fn 62 above at 489 per Morling J (Fed Ct, FC).

66.

A warning heeded by the defendant in Insurance Commr v AAMI, fn 65 above, in which the plaintiff failed to make out a prima facie case of breach of the Trade Practices Act; see also Country Road Clothing Pty Ltd v Najee Nominees Pty Ltd (1991) 20 IPR 419 (Fed Ct).

67.

Union Carbide Australia Ltd v Duracell Australia Pty Ltd (1986) 7 IPR 481 at 486 per Fox J; and see Hoover (Aust) Pty Ltd v Email Ltd (1991) 104 ALR 369 at 375 per Gummow J.

68.

Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at [20] per Heerey J, at [53] per Lindgren J (Fed Ct, FC).

69.

Telecom Directories Ltd v AD Viser (NZ) Ltd (1992) 26 IPR 37 (NZ HC).

70.

For a detailed account, see Ricketson, The Law of Intellectual Property, 2nd rev ed, looseleaf.

71.

See, eg, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 205–9;

42 ALR 1 at 11–13 per Mason J; New South Wales Dairy Corp v Murray-Goulburn Co-op Co Ltd (1990) 24 FCR 370; 92 ALR 239 (aff’d on different grounds (1990) 171 CLR 363; 97 ALR 73); Trust Bank Auckland Ltd v ASB Bank Ltd [1989] 3 NZLR 385 at 398–9 per Cooke P (CA). 72.

Parkdale v Puxu (1982) 149 CLR 191; see also Komesaroff v Mickle (1986) 7 IPR 295.

73.

Newton-John v Scholl-Plough (Australia) Ltd (1986) 11 FCR 233.

74.

McWilliam’sWines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 399 per Smithers J, at 414 per Fisher J; Parkdale v Puxu (1982) 149 CLR 191 at 198–9; 42 ALR 1 at 6 per Gibbs CJ; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 389–90; 111 ALR 577 at 619–20 per Gummow J (FC).

75.

But cf Levi Strauss & Co v Kimbyr Investments Ltd [1994] 1 NZLR 332 at 383 per Williams J (coloured tag on the back pocket of jeans sold by the defendant regarded as confusingly similar to that of the plaintiff); Tui Foods Ltd v New Zealand Milk Corp Ltd [1997] 2 NZLR 214 at 226 per Gallen J (coloured cap on milk container held to be deceptively similar); Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 (Fed Ct, FC) (similarities of shape and features of coffee plungers).

76.

Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340.

77.

Bradmill Industries Ltd v B & S Products Pty Ltd (1980) 53 FLR 385; see also Nostac Enterprises Pty Ltd v New Concept Import Services Pty Ltd (1981) ATPR 40-235 (show bags and gift sets); Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 515–17 per Wilcox J (dress material); Telmak Teleproducts (Aust) Pty Ltd v Coles Myer Ltd (1989) 89 ALR 48 (Fed Ct, FC) (boxed frying pans).

78.

Brock v Terrace Times Pty Ltd (1982) 40 ALR 97. Indeed, a close copy of the plaintiff’s design is not a breach of the section if the get-up is markedly different: Dr Martens Australia Pty Ltd v Rivers (Australia) Pty Ltd (1999) 95 FCR 136 (FC).

79.

Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161; see also Parke Davis Pty Ltd v Wilkinson Sword Pty Ltd (1981) ATPR 40-271 (labels on razor packs); Dairy Vale Metro Co-Op Ltd v Brownes Dairy Ltd (1981) 35 ALR 494 (yoghurt containers); Just Jeans Pty Ltd v Westco Jeans (Aust) Pty Ltd (1989) ATPR 40-927 (colours on advertising signs).

80.

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 229 ALR 136 (Fed Ct).

81.

New Zealand Natural Pty Ltd v Granny’s Natural New Zealand Ice Cream Pty Ltd (1990) 19 IPR 214 (Fed Ct).

82.

Anheuser-Busch Inc v Budweiser Budvar National Corp [2003] 1 NZLR 472 (CA); TGI Friday’s Australia Pty Ltd v TGI Friday’s Inc (1999) 48 IPR 65 (Fed Ct, FC).

83.

(1978) 140 CLR 216 at 229; 18 ALR 639 at 648.

84.

Gilltrap v Autopromos Pty Ltd (1995) ATPR 41-394 (Fed Ct).

85.

Weitmann v Katies Ltd (1977) 29 FLR 336.

86.

See also McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 411 per Northrop J (‘Big Mac’); S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354; 168 ALR 396 (FC) (‘triathlon’); connect.com.au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348 (Fed Ct) (‘connect’); Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 (Fed Ct, FC) (‘Mythbusters’).

87.

Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 59 ALR 212.

88.

World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181; see also Federation of Australian Accountants Inc v Australian Society of Accountants (1988) ATPR (Digest) 46-044 (‘Certified Practising Accountant’); WMC Ltd v Westgold Resources NL (1997) 39 IPR 319 (‘Western Mining’).

89.

Burswood Management Ltd v Burswood Casino Motel/Hotel Pty Ltd (1985) 7 FCR 186 (further proceedings (1987) ATPR 40-824); Aerospatiale Société Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37; Taylor Bros Ltd v Taylors Group Ltd [1988] 2 NZLR 1 (CA); Prudential Building & Investment Socy v Prudential Assurance Co of NZ Ltd [1988] 2 NZLR 653 (CA); and see Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460; Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 72 ALR 643 at 671–3 per Spender J but cf Chase Manhattan Overseas Corporation Ltd v Chase Corporation Ltd (1986) 70 ALR 303.

90.

See the Hornsby Building case (1978) 140 CLR 216 at 227; 18 ALR 639 at 646 per Stephen J; Parkdale v Puxu (1982) 149 CLR 191 at 212; 42 ALR 1 at 17 per Murphy J; Neumegen v Neumegen & Co [1998] 3 NZLR 310 (CA); BR Gamer (Investments) Pty Ltd v Gamer (1993) ATPR 41-200.

91.

Campomar Sociedad Ltda v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677, esp at [107].

92.

Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330.

93.

Snoid v Handley (1981) 38 ALR 383; see also Peter Isaacson Publications Pty Ltd v Nationwide News Pty Ltd (1984) 56 ALR 595 (both parties restrained from calling their respective newspapers ‘Sunday Territorian’); Visa International Services Assoc v Beiser Corporation Pty Ltd (1983) 1 IPR 471 (‘World Visa Travel Service’ misleadingly similar to plaintiff’s ‘Visa’ credit card and traveller’s cheque operations); Ricegrowers’ Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR 40-778 (defendant’s ‘Top Rice’ misleadingly similar to plaintiff’s ‘Coprice’, both visually and aurally); cf Prestige Sunglasses Pty Ltd v Bernhaut Nominees Pty Ltd (1985) 9 FCR 13 (adjective ‘Le’ applied to similar products not a ground for the grant of interlocutory relief).

94.

Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153 (Fed Ct).

95.

McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394.

96.

Lego Australia Pty Ltd v Paul’s (Merchants) Pty Ltd (1982) 42 ALR 344; see also Cue Design Pty Ltd v Playboy Enterprises Pty Ltd (1982) 45 ALR 535; Chase Manhattan Overseas Corporation v Chase Corporation Ltd (1986) 70 ALR 303 (at the time of the hearing, the parties were not engaged in sufficiently similar activities for the continued use of their corporate names to lead to deception).

97.

See generally Terry, ‘Exploiting Celebrity: Character Merchandising and Unfair Trading’ (1989) 12 UNSWLJ 204; Corones, ‘Basking in Reflected Glory’ (1990) 18 ABLR 5; Anker, ‘Possessing Star Qualities: Celebrity Identity as Property’ (2002) 11 Griffith LR 147.

98.

(1989) 23 FCR 553; 87 ALR 14.

99.

Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403.

100. See also Hogan v Koala Dundee Pty Ltd (1988) 83 ALR 187 (sale of souvenirs which were strongly reminiscent of the character portrayed by the plaintiff in a film held to be in contravention of s 52). 101. Talmax Pty Ltd v Telstra Corp Ltd [1997] 2 Qd R 444 (CA). 102. Fido Dido Inc v Venture Stores (Retailers) Pty Ltd (1988) 16 IPR 365 (Fed Ct); Surge Licensing

Inc v Pearson (1991) 21 IPR 228 (Fed Ct); Twentieth Century Fox Film Corp v South Australian Brewing Co Ltd (1996) 66 FCR 451; 34 IPR 225. 103. Anheuser-Busch Inc v Castlebrae Pty Ltd (1991) 32 FCR 63; 23 IPR 54. 104. 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299. 105. Honey v Australian Airlines Ltd (1990) 18 IPR 185 (Fed Ct, FC); see also Newton-John v SchollPlough (Australia) Ltd (1986) 11 FCR 233. 106. Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 at 43–4 per Beaumont J. 107. Parkdale v Puxu (1982) 149 CLR 191; 42 ALR 1; McWilliam’s Wines v McDonald’s System (1980) 33 ALR 394 (FC); Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 201–3 per Deane and Fitzgerald JJ (FC); Chase Manhattan v Chase Corporation (1986) 70 ALR 303 (FC); cf Trust Bank Auckland Ltd v ASB Bank Ltd [1989] 3 NZLR 385 at 389 per Cooke P (CA). 108. Parkdale v Puxu (1982) 149 CLR 191 at 198; 42 ALR at 6 per Gibbs CJ. 109. See 22.20, fn 95, fn 96 above. 110. Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460 at 474–5 per Lockhart J; New South Wales Dairy Corp v Murray-Goulburn Co-op Co Ltd (1989) 86 ALR 549 at 558–9 per Gummow J (aff’d (1990) 24 FCR 370; 92 ALR 239 (FC); aff’d on different grounds (1991) 171 CLR 363; 97 ALR 73); Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 at 48 per Burchett J; Telmak Teleproducts (Aust) Pty Ltd v Coles Myer Ltd (1989) 89 ALR 48 at 69 (FC); Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496 (FC); Rumcoast Holdings Pty Ltd v Prospero Publishing Pty Ltd (1999) 152 FLR 240 (WASC). 111. Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 59 ALR 211; Telmak Teleproducts (Aust) Pty Ltd v Coles Myer Ltd (1989) 89 ALR 48 (FC) (defendant’s conduct directed to television viewers); World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 189 per Bowen CJ, at 202 per Brennan J; cf Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161 at 168 per Lockhart J (despite a graphic description of the lack of discernment to be expected of purchasers of instant coffee in supermarkets, the judge concluded that the similarity in get-up was not misleading to such shoppers). 112. Parkdale v Puxu (1982) 149 CLR 191 at 199; 42 ALR 1 at 6–7 per Gibbs CJ. 113. Chase Manhattan v Chase Corporation (1986) 70 ALR 303. 114. Parkview (Keppell) Pty Ltd v Mytarc Pty Ltd (1984) 3 FCR 186; cf Arcrie Investments Pty Ltd v Ductline Pty Ltd (1992) ATPR 41-180 (Fed Ct, FC) (names of parties’ products so similar that retailers, intending to buy plaintiff’s product, might in fact purchase that of defendant without realising the difference). 115. Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; see also Miki Shoko Co Ltd v Merv Brown Pty Ltd (1988) ATPR 40-858; TV-am plc v Amalgamated Television Services Pty Ltd (1988) ATPR 40-891; ConAgra Inc v McCain Foods (Australia) Pty Ltd (1991) 101 ALR 461 at 488 per Hill J (aff’d (1992) 33 FCR 302; 106 ALR 465 (FC)); cf Emap Elan Ltd v Pacific Publications Pty Ltd (1997) 37 IPR 1 (plaintiff’s magazine, although published in England, was sufficiently well known in Australia to prevent a deceptively similar magazine from being published in Australia by the defendant); New Zealand Post Ltd v Leng [1999] 3 NZLR 219. 116. Dairy Vale Metro Co-op Ltd v Brownes Dairy Ltd (1981) 35 ALR 494; Dairy Industry Marketing Authority v Southern Farmers Co-op Ltd (1982) 39 ALR 613; see also Snoid v Handley (1981) 38 ALR 383; Taylor Bros Ltd v Taylors Group Ltd [1988] 2 NZLR 1 (CA), in which injunctions

were limited in their operation to the particular cities in which the respective plaintiffs had an established business reputation. 117. Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 59 ALR 211 at 217 per Toohey, Morling and Beaumont JJ; Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330 at 338 per Wilcox J; cf Parkdale v Puxu (1982) 149 CLR 191; 42 ALR 1 in which the distinctive label on the defendant’s furniture was treated as effective to nullify the misleading impression given by the close similarity in product design; Newton-John v Scholl-Plough (Australia) Ltd (1986) 11 FCR 233 (see 22.16); Sony Music Productions Pty Ltd v Tansing (1993) 27 IPR 640 (Fed Ct). 118. Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460 at 469 per Smithers and Woodward JJ, at 472 per Lockhart J. 119. See, eg, Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 11.102ff. 120. Yorke v Ross Lucas Pty Ltd (1982) 45 ALR 299; Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112; 94 ALR 719; Sharp v Ramage (1995) 12 WAR 325 (FC). 121. Smith v State Bank of NSW Ltd (2001) 188 ALR 729 (Fed Ct). 122. Commonwealth Bank v Smith (1991) 102 ALR 453 (Fed Ct, FC); Adour Holdings Pty Ltd v Commonwealth Bank (1991) ATPR 41-147 (Fed Ct). 123. Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR 41-017 (Fed Ct). 124. RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 112 ALR 511 (Fed Ct, FC). 125. The legislation has been interpreted as also requiring a causal connection between the plaintiff’s deception and the loss which is sought to be recovered under the Australian Consumer Law s 236: see 22.48. 126. (1985) 158 CLR 661; 61 ALR 307. 127. Yorke v Ross Lucas Pty Ltd (1982) 45 ALR 299. 128. 158 CLR at 666; 61 ALR at 309. 129. Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357; see also Orix Australia Corporation Ltd v Moody Kiddell & Partners Pty Ltd [2006] NSWCA 257; Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233 but cf Specialty Equipment Co Inc v R E Phillips Nominees Pty Ltd (2007) 99 SASR 535 at [137]–[141] (FC). 130. (1988) 80 ALR 524 (Fed Ct, FC). 131. See also Commonwealth Bank v Mehta (1991) 23 NSWLR 84 (CA), in which the respondent had made it clear that he was not relying on the appellant bank for advice about a foreign currency loan, and was held not to have a claim under s 52, but compare Goldsbro v Walker [1993] 1 NZLR 394 at 398 per Cooke P. 132. The traditional view of the general law is put forward in, eg, Spencer Bower, Turner and Handley, Actionable Misrepresentation, 4th ed, 2000, [67]; Carter, Peden and Tolhurst, Contract Law in Australia, 5th ed, 2007, [18-02]. 133. Yorke v Ross Lucas Pty Ltd (1982) 45 ALR 299; see also Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302. 134. Scott v Windsor Holdings Pty Ltd (1986) ATPR 40-737. 135. Gokora Pty Ltd v Montgomery Jordan & Stevenson Pty Ltd (1986) ATPR 40-722.

136. (1987) 71 ALR 553 at 559; see also RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 172–5; 112 ALR 511 at 519–22 per Beaumont and Spender JJ (FC); for a statement of the traditional interpretation of the general law, see, eg, Carter, Peden and Tolhurst, Contract Law in Australia, 5th ed, 2007, [18-09]. 137. For a recent illustration of this methodology, see Seafolly Pty Ltd v Madden [2012] FCA 1346 at [61]–[68] per Tracey J. 138. San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 356; 68 ALR 161 at 170; see further 13.31. 139. It would not have this effect if its recipient knew the true state of affairs. 140. (1991) 28 FCR 151 at 166; 100 ALR 447 at 462. 141. Ibid at 167; 462–3. 142. (2012) 291 ALR 399. 143. Ibid at [33] per French CJ, Gummow, Hayne and Kiefel JJ. 144. Ibid at [37] (italics in the original). 145. (1987) 71 ALR 553. 146. See also James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 378–82 per Toohey J; Sutton v AJ Thompson Pty Ltd (1987) 73 ALR 233 at 237–8 (Fed Ct, FC); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61 (FC). 147. Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610. 148. (1981) 35 ALR 79. 149. (1981) 36 ALR 23. 150. (1981) 35 ALR at 87 (his Honour’s emphasis). 151. Ibid, citing Thompson v Mastertouch TV Service Pty Ltd (No 1) (1977) 15 ALR 487. 152. Explanatory Memorandum to the Trade Practices Revision Bill 1986 (Cth), [75]–[78]; the decision referred to is Thompson v Mastertouch TV Service, fn 151 above. 153. (1983) 46 ALR 451 at 456, a view adopted obiter in Bill Acceptance Corp Ltd v GWA Ltd (1983) 50 ALR 242 at 247–8 per Lockhart J and in Collier v Electrum Acceptance Pty Ltd (1986) 66 ALR 613 at 635 per Woodward J. 154. (1984) 2 FCR 82 at 88; see also Johnson v Eastern Micro Electronics Pty Ltd (1986) 70 ALR 339 at 350 per Ryan J. 155. (1981) 35 ALR 79. 156. (1981) 36 ALR 23. In Bill Acceptance Corp Ltd v GWA Ltd (1983) 50 ALR 242 at 248–9, Lockhart J purported to distinguish the two earlier decisions on the basis that the argument had not been squarely raised before the court in either case of whether a prediction may constitute a contravention of s 52 despite the speaker’s honest belief therein; such a view is impossible to sustain, in the light of the fact that the decisions in those earlier cases depended upon the validity of that assumption. 157. (1989) ATPR 40-940. 158. Ibid at 50,251.

These observations were quoted with approval by French J in Famel Pty Ltd v Burswood 159. Management Ltd (1989) ATPR 40-962. 160. (1998) 80 FCR 191; 153 ALR 95 (FC). 161. Ibid at 206; 108. 162. Ibid at 215; 117; both Heerey J and Cooper J expressed agreement with remarks to the same effect in Cummings v Lewis (1993) 41 FCR 559 at 567; 113 ALR 285 at 293 (FC). 163. Senanayake v Cheng [1966] AC 63; [1965] 3 All ER 296 (PC). 164. Cf Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561 at 570–1 per Bowen CJ (those words held to constitute no more than a puff, but this conclusion was drawn in the context of criminal proceedings, and ought not to be relevant in a civil action); see also Petty v Penfolds Wines Pty Ltd (1994) 49 FCR 282 at 289–90 per Wilcox J (FC). 165. Mitchell v Valherie (2005) 93 SASR 76 (FC). 166. Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 235 per Fisher J. 167. Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959; 1 All ER 173; see further 23.32. 168. Kendall Wilson Securities Ltd v Barraclough [1986] 1 NZLR 576 (CA); AWA Ltd v Daniels (1992) 7 ACSR 759 (NSWSC) (aff’d (1995) 37 NSWLR 438 (CA)); see further 13.42. 169. On remedies under this legislation generally, see 22.44ff. 170. (2002) 210 CLR 109; 192 ALR 1. 171. (2000) 179 ALR 89. 172. Cf the comment of Elias J, in DesForges v Wright [1996] 2 NZLR 758 at 765, that the fair trading legislation was ‘not designed to provide a guarantee to purchasers who failed to look after their own interests in a manner which was reasonable in the circumstances’. 173. See Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) Sch 3, which adds a new subs 82(1B) to the Trade Practices Act 1974 (Cth). 174. For a thorough discussion of this anomaly, see Seddon and Fridman, ‘Misleading Conduct and Contributory Fault: Inconsistency under the Uniform Australian Consumer Law’ (2012) 20 AJCCL 87. 175. See generally Skapinker, ‘The Imposition of a Positive Duty of Disclosure under s 52 of the Trade Practices Act’ (1991) 4 JCL 75. 176. See, eg, Jones v Dumbrell [1981] VR 199 at 203–4 per Smith J; Awaroa Holdings Ltd v Commercial Securities & Finance Ltd [1976] 1 NZLR 19. 177. Capelvenere v Omega Development Corporation Pty Ltd (1983) 1 IPR 456 at 463–4 per Fitzgerald J; Lee Gleeson Pty Ltd v Sterling Estates Pty Ltd (1991) 23 NSWLR 571; Gregory v Rangitikei District Council [1995] 2 NZLR 208 at 234–5 per McGechan J; see also RhonePoulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77 at 84 per Bowen CJ; but cf General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164; 117 ALR 629 (FC) (defendant held entitled, in the circumstances, not to reveal its future course of action). 178. Brown v Southport Motors Pty Ltd (1982) 43 ALR 183; see also Hollis v PH & D Stephens Investments Pty Ltd (1985) 8 FCR 576. 179. Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601 (aff’d on this issue (1988) 79 ALR 83 at 94–5 per Lockhart J); see also McMahon v Pomeray Pty Ltd (1991) ATPR

41-125. 180. Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608 (FC); see also Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112 at 131–2; 94 ALR 719 at 737–8 per Hill J. 181. Fraser v NRMA Holdings Ltd (1994) 52 FCR 1; 124 ALR 548 (aff’d (1995) 55 FCR 452; 127 ALR 543 (FC)). 182. Metalcorp Recyclers Pty Ltd v Metal Manufacturers Ltd [2003] NSWCA 213. 183. Sanrod Pty Ltd v Dainford Ltd (1984) 54 ALR 179 (aff’d, sub nom Dainford Ltd v Sanrod Pty Ltd (1985) ATPR 40-513); Lubidineuse v Bevanere Pty Ltd (1984) 3 FCR 1 (aff’d 7 FCR 325); Collier v Electrum Acceptance Pty Ltd (1986) 66 ALR 613 at 640–1 per Woodward J; Software Integrators Pty Ltd v Roadrunner Couriers Pty Ltd (1997) 69 SASR 288 at 298–9 per Doyle CJ; Mikaelian v Commonwealth Scientific and Industrial Research Organisation (1999) 163 ALR 172 at [81] per Hill J; Noor al Houda Islamic College Pty Ltd v Bankstown Airport Ltd (2005) 215 ALR 625 (NSWSC). 184. (1986) 68 ALR 77. 185. Ibid at 85 per Bowen CJ, at 100 per Lockhart J; see also WEA International Inc v Hanimex Corp Ltd (1987) 77 ALR 456. 186. (1986) 68 ALR 77 at 103. 187. (2010) 241 CLR 357; 270 ALR 204; see also Mills v United Building Society [1988] 2 NZLR 392 (CA). 188. See also Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714 at 723 per Finkelstein J; Ladstone Holdings Ltd v Leonora Holdings Ltd [2006] 1 NZLR 211 (failure to reveal facts found to be not deliberate, and hence not in breach of the statutory proscription); Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167. 189. Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97; 111 ALR 649. 190. See also Brophy v NIAA Corp Ltd (1995) ATPR 41-399 (NSWCA); Tonkin Thompson & Associates Pty Ltd v Mayr (1998) 72 SASR 346 at 354 (FC). 191. See, eg, Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 234 per Fisher J; Sanrod Pty Ltd v Dainford Ltd (1984) 54 ALR 179 at 187 per Fitzgerald J. 192. (2004) 218 CLR 592; 212 ALR 357; see 22.27. 193. See Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535; 107 ALR 291 (the attempt to exclude liability in that case was not successful), and generally Terry, ‘Disclaimers and Deceptive Conduct’ (1986) 14 Aus Bus L Rev 478. 194. See Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367 at 371 per Sheppard J (with the concurrence of Fox and Jackson JJ). 195. This form of exclusion clause has been the type most frequently considered by the courts. For a discussion of this form of words, see Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601 at 613–14 per Wilcox J (aff’d, sub nom Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 98–9 per Lockhart J); Netaf Pty Ltd v Bikane Pty Ltd (1990) 92 ALR 490 at 502–3 per Wilcox J (Fed Ct, FC). 196. IOOF Australia Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470 at 480 (Fed Ct, FC); cf the position under the general law, where a person’s signature to a contractual document is (in the absence of a misrepresentation) ‘irrefragible evidence’ of assent to all the terms therein: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; 212 ALR 342.

197. See the comment of Wilcox J in Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601 at 614 and in Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd (2004) 214 ALR 478 at [86]. 198. Janssen Pharmaceutical Pty Ltd v Pfizer Pty Ltd (1985) 6 IPR 227 at 237–8 per Burchett J; Hospitals Contribution Fund of Australia Ltd v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 491–2 per Morling J (Fed Ct, FC); Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402 at [43] per Stone J (Fed Ct, FC); Specsavers Pty Ltd v Optical Superstore Pty Ltd (2010) 276 ALR 569 (Fed Ct). 199. The ‘Mareva injunction’, discussed in this context in Jackson v Sterling Industries Ltd (1987) 71 ALR 457. 200. See, eg, ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256; 110 ALR 47 at 56 per Lockhart J (FC) (for a further discussion of the differences between the statute and equitable principles, see Gummow J at 266–7; 66–7. 201. See the ICI Australia Operations case, fn 200 above. 202. Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403 at 432 per Gummow J (aff’d sub nom Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 (Fed Ct, FC)); Ryan v Lum (1989) 86 ALR 670 at 673 per Young J (NSWSC); and see Kettle Chip Co Pty Ltd v Apand Pty Ltd (No 2) (1998) 88 FCR 568 (FC). 203. Surge Licensing Inc v Pearson (1991) 21 IPR 228 at 233–4 per Einfeld J (Fed Ct); for a general consideration of the width of the section, see Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526; 109 ALR 638. 204. Gates v City Mutual Life Assurance Socy Ltd (1986) 160 CLR 1 at 14; 63 ALR 600 at 609 per Mason, Wilson and Dawson JJ. 205. Cox & Coxon Ltd v Leipst [1999] 2 NZLR 15. 206. Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; 204 ALR 26. 207. (1981) 35 ALR 79 at 88. 208. See, eg, Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 239 per Fisher J; Thompson (H W) Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667 at 675 per St John J. 209. Jones v Acfold Investments Pty Ltd (1985) 6 FCR 512 at 522–3 (FC). 210. Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd (1993) 41 FCR 229; 113 ALR 30 (FC); Townsend v Roussety & Co (WA) Pty Ltd (2007) 33 WAR 321 (FC). 211. Marks v GIO Australia Holdings Ltd (1998)196 CLR 494; 158 ALR 333. 212. See, eg, Mr Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 at 59 per Northrop J; Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547 at 565 per Fitzgerald J. 213. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 526; 109 ALR 247 at 254 per Mason CJ, Dawson, Gaudron and McHugh JJ; Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; 158 ALR 333 at [49] per McHugh, Hayne and Callinan JJ. 214. (1985) 157 CLR 215; 56 ALR 31. 215. (1986) 65 ALR 302. 216. For similar examples of the recovery of trading losses, see Yorke v Ross Lucas Pty Ltd (1982) 45

ALR 299; Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547 (aff’d (1983) ATPR 40-394); Bateman v Slatyer (1987) 71 ALR 553; Truss v Brazier [1993] 1 Qd R 691 (FC). 217. Cf Gurdag v BS Stillwell Ford Pty Ltd (1985) 8 FCR 526, in which Forster J refused to allow recovery of expenditure incurred after the plaintiffs knew, or ought to have realised, that the truck they had purchased was not as represented to them by the defendant. 218. Such interest payments were also allowed in Milner v Delita Pty Ltd (1985) 9 FCR 299, but held to be too remote in Yorke v Ross Lucas Pty Ltd (1982) 45 ALR 299 at 321 per Fisher J and in Gurdag v BS Stillwell Ford Pty Ltd (1985) 8 FCR 526 at 536 per Forster J; see generally Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119 and 27.27. 219. (2002) 83 SASR 183 at [201] per Lander and Prior JJ (FC). 220. (2005) 224 CLR 627; 222 ALR 263. 221. Steiner v Magic Carpet Tours Pty Ltd (1984) ATPR 40-490 at 45,642 per Wilcox J; Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445 at 467–9 per Hill J (aff’d (1990) ASC 56-019 (Fed Ct, FC)); see also Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 524–5 per Wilcox J. 222. Seafolly Pty Ltd v Madden [2012] FCA 1346 at [89]–[94] per Tracey J; cf 18.13, where it is noted that most corporations have no cause of action in defamation. 223. Musca v Astle Corp Pty Ltd (1988) 80 ALR 251; on exemplary damages generally, see 27.10. 224. NT s 91(2); Qld s 99(2); SA s 84(2); WA s 79(2); NZ s 43(5). 225. Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247. 226. Ibid. 227. Arcadi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR 40-473 at 45,454–5 per Toohey J (Fed Ct); see also SWF Hoists & Industrial Equipment Pty Ltd v State Government Insurance Commn (1990) ATPR 41-045 at 51,612–3 per von Doussa J (Fed Ct). 228. See Nella v Kingia Pty Ltd (1986) 7 IPR 55 at 58 per Toohey J (Fed Ct). 229. Vink v Schering Pty Ltd (1991) ATPR 41-064 at 52,008–9 per von Doussa J (Fed Ct). 230. Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853 at 49,195–6 per Pincus J (Fed Ct); New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489 at 504; 116 ALR 363 at 379 per Beazley J (Fed Ct). 231. Mr Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23. 232. Frith v Gold Coast Mineral Springs Pty Ltd (1983) 47 ALR 547. 233. Collier v Electrum Acceptance Pty Ltd (1986) 66 ALR 355. 234. Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 43 NSWLR 131 at 155–6 per Cole JA (CA); cf the prohibition on the award of exemplary damages under this legislation, referred to in 22.50.

[page 674]

CHAPTER 23 Injurious Falsehood, Passing Off and Deceit

23.1 Reference has been made, in Chapter 20, to the fact that the three torts of injurious falsehood, passing off and deceit have been very largely overtaken by the Australian Consumer Law s 18: see 20.3. It is the purpose of this chapter to describe briefly the three torts referred to, in order to compare them with the statutory means of protection against unfair business practices discussed in Chapter 22.

Injurious Falsehood 23.2 This tort has had a chequered history, in the course of which it has undergone various changes of name. Originally, it protected persons against unwarranted attacks on the title to their land, and hence was called ‘slander of title’. Subsequently, the tort was held to be equally applicable to goods as to land, and was called ‘slander of goods’. Towards the end of the nineteenth century, liability was extended to cover disparagements of the quality of goods, as well as aspersions to the title thereto and, during the twentieth century, the name ‘injurious falsehood’, first coined by Salmond,1 has been applied to the wrong. The tort has been defined by Bowen LJ, in Ratcliffe v Evans,2 as comprising: … written or oral falsehoods … where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage … To support it, actual damage must be shown, for it is an action which will only lie in respect of such damage as has actually occurred.

This definition has been accepted as an accurate statement of the common law in Australia3 and New Zealand,4 although in the latter country the Defamation Act 1992 s 5 abrogates the necessity of proving special damage in any action for ‘slander of title, slander of goods or other malicious falsehood’, provided that the words complained of are ‘likely to cause pecuniary loss to the plaintiff’. [page 675]

23.3 However, with the enactment of the federal Trade Practices Act and of Fair Trading Acts in the states and territories, and the subsequent reenactment of the Trade Practices Act s 52 as the Australian Consumer Law s 18, together with the passing of the Fair Trading Act 1986 in New Zealand, the statutory change to the common law referred to in the previous paragraph is irrelevant, since the common law action itself has become all but superfluous. The common law action has four elements: (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant — that is, that the statement was made mala fide or with a lack of good faith;5 and (4) proof by the plaintiff of a particular and identifiable loss which was either intended by the defendant, or is the natural and probable consequence of the making of the statement.6 But the Australian Consumer Law s 18 prohibits a person (both natural and juristic) from engaging in conduct which includes, but extends beyond, the first and third of these requirements, while the remedial sections of the legislation do not require proof of special damage. First, it has been pointed out7 that s 18, and the antecedent s 52, does not refer to a false statement, but includes any sort of conduct which misleads or deceives another, or is likely to have that effect; as a consequence, s 18 applies to a wider range of statements than those classified under the general law as misrepresentations.8 Secondly, it has been made quite clear by the High Court of Australia9 that a contravention of s 52 (and therefore of the same statutory formulations in the Australian Consumer Law) may be committed despite a lack of intention to deceive or the want of reasonable care. Thirdly, the power to award damages, or to grant an injunction, for a

breach of the statutory proscription is itself dependent solely on the terms of the statute; for the purposes of interpreting those provisions, common law and equitable notions are no more than useful guides. In an action for damages under the Australian Consumer Law s 236, the plaintiff need show only the suffering of loss or damage because of the defendant’s conduct10 (including damage to the plaintiff’s business reputation)11 and not a particular and specific loss, as required under the common law action. And if the plaintiff seeks to prevent the defendant from engaging (or continuing to engage) in the conduct complained of, the court may grant an injunction ‘whether or not there is an imminent danger of substantial damage’ to the plaintiff’s business.12

23.4 There are two circumstances in which the statutory right of action would not displace the action for injurious falsehood. First, liability under the Australian Consumer Law applies only to conduct ‘in trade or commerce’: see 22.7. Although [page 676] the common law action is concerned with a statement about the plaintiff’s goods or business, the statement itself need not have been made in a business context, and thus may not necessarily be in trade or commerce. Secondly, since injurious falsehood is a wrong for which liability ensues only if (among other things) the defendant has acted maliciously, it is likely that proof of its commission will entitle the plaintiff to recover aggravated or exemplary damages.13 Recompense under the Australian Consumer Law, on the other hand, is limited to compensatory damages.14

Passing Off 23.5 The origins of this tort, in Elizabethan England, are far from clear, although it appears to have been developed by analogy from the action in deceit, the difference from that action lying in the fact that, in a passing off action, the plaintiff was the person who had suffered loss by reason of the defendant’s deceiving others as to the origin of goods, rather than the person deceived.15 The expansion of the tort was assisted by the infusion of

principles developed by the Courts of Chancery during the nineteenth century for the protection of the goodwill of the plaintiff’s business.16 The courts of common law had sought only to protect the proprietor of a business from the consequences of the diversion of trade to a business rival by reason of the latter’s marketing of goods in such a way as to represent that they were those of the plaintiff. But, with the abolition of separate courts of common law and equity by the Judicature Acts, the equitable principles for the protection of business goodwill were regarded as one species, and the common law rules another, of a wider genus of protection of traders against unfair business practices.

23.6 The general principles of liability for this tort have been the subject of considerable judicial scrutiny. In Erven Warnink BV v J Townsend & Sons (Hull) Ltd17 in the House of Lords, Lord Diplock identified five characteristics which he regarded as essential to a cause of action in passing off. However, Lord Fraser also specified18 five propositions which he regarded as essential to liability, but they did not precisely correspond with those of Lord Diplock, and the remaining members of the House of Lords agreed with both speeches. Shortly thereafter, the Privy Council, in Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd,19 adopted and applied the views expressed in the House of Lords, without adverting to the differences in formulation between Lord Diplock and Lord Fraser.

23.7 Subsequently, the courts have expressed the view that the tort is constituted merely by three requirements of (i) a reputation acquired by the plaintiff; (ii) a misrepresentation by the defendant relating to that reputation; and (iii) resultant damage to the plaintiff’s business. Thus, Powell J, of the Supreme Court of [page 677] New South Wales, in Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd,20 without wishing to define the tort, sought succinctly to formulate the matters which the plaintiff must show in order to succeed in a passing off action. His Honour said that the plaintiff must establish: (a)

that his goods have, or his business has, a certain goodwill or reputation;

(b)

(c)

that the actions of the defendant have caused, or in all probability will cause, the ordinary purchasers of the plaintiff’s goods, or the ordinary customers of the plaintiff’s business, to believe that the defendant’s goods are those, or that the defendant’s business is that, of the plaintiff; that, in consequence, the plaintiff has suffered, or is likely to suffer, injury in his trade or business.

This description of the elements of liability has since been echoed by the House of Lords21 and the English Court of Appeal.22 It must be stressed that these formulations are no more than descriptive, and do not seek to define liability. Thus, it may also be passing off for the defendant to make unauthorised use of a photograph of the plaintiff,23 or a character or personality created by the plaintiff,24 in circumstances which give the public the erroneous impression that the latter has consented to that use and gained a commercial advantage therefrom, or to register a domain name on the internet which is similar to the name of an established business, thereby making a false representation of association with that business.25 It is also passing off to publish a parody of work written by the plaintiff, if there is no sufficient indication that the material is indeed no more than a satirical copy of the original.26 Again, rather than the defendant misrepresenting its goods as those of the plaintiff, the former may reverse the situation and give customers the impression that goods which are actually those of the plaintiff are produced by the defendant; since the essentials of reputation, misrepresentation and damage are present, such activities may still be passing off.27 Furthermore, if a company which carries on business overseas finds that its public presentation is being copied locally, it need only show that it has a reputation in the local market in order to sue in this tort; it does not have to prove that it carries on business locally, or has a local goodwill.28 [page 678]

23.8 The Australian Consumer Law s 18 doubtless has a different end in view from the tort of passing off. The policy of s 18 is to protect the public, as consumers of goods and services, while the common law action is directed to protecting the rights of traders.29 It is nevertheless clear that the statutory proscription virtually covers the field occupied by the tort. The one circumstance in which the statutory provision is not available, but the tort

action is, relates to the fact that s 18 is expressly confined to conduct ‘in trade or commerce’: see 22.7. While the common law action is generally limited to the protection of business and commercial interests, it has been held to be available to a church,30 and has been accepted as being available to a charitable or non-profit organisation,31 although the impugned conduct in each case was not within the statutory limitation. But, apart from that point of difference, it has been remarked on occasion that it may be easier for a plaintiff to prove that the public (or a section of it) has been misled by the defendant’s conduct than that the defendant has made the misrepresentation required by the tort action.32 There are two differences between the tort action and the legislative proscription, each of which gives a wider field of application to the statute. A third issue which arises from a comparison of the respective sources of liability concerns the reasons for the public’s being misled.

23.9 First, passing off is concerned, at least to some extent, with the state of mind of the defendant. In Erven Warnink BV v J Townsend & Sons (Hull) Ltd,33 Lord Diplock suggested that a characteristic of the common law actions is that the defendant’s conduct be ‘calculated to injure … (in the sense that this [injury] is a reasonably foreseeable consequence)’, while the High Court has indicated that fraud, at least in an equitable sense if not in the common law meaning of that word, is an element of the action.34 Section 18, on the other hand, treats as irrelevant the state of mind of the person who is alleged to have contravened that provision, being directed only to the consequence of whether the conduct has misled, or is likely to do so: see 22.4. One result of this difference is that whereas it is not passing off for the defendant bona fide to carry on business under his or her own name,35 that conduct may be a breach of s 18 despite the defendant’s having acted in good faith.36

23.10 Secondly, the action at common law, although it has expanded considerably in the last few years, does not encompass the situation where one trader denigrates [page 679]

the products of a rival by unfairly comparing them.37 However, it has already been seen in 22.12 that the statutory proscription may be infringed by advertising that makes an unfair and inaccurate comparison between the defendant’s goods and those of the plaintiff.

23.11 But, thirdly, the tort of passing off may apparently be committed when members of the public are confused, and might have cause to wonder whether the defendant’s goods or services are those of the plaintiff, whereas the statutory proscription is contravened only when the defendant’s activities are shown to be a cause for the public (wrongly) to believe that there is a trade connection between the parties. The difference may be illustrated by comparing the decision in McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd38 with that in Nicholas v Borg.39 In the former, the appellants were held not to have contravened the Trade Practices Act s 52 by applying the name ‘Big Mac’ to one of their wines, even though that name was used by the respondents in relation to their hamburgers. The Full Court of the Federal Court considered that, because the parties’ businesses were so disparate from one another, any misapprehension in the minds of the public as to a business relationship between them would have sprung from misconceptions as to the exclusivity of trading names, and not have been caused by the conduct of the appellants. In Nicholas v Borg, on the other hand, Legoe J in the Supreme Court of South Australia granted to the plaintiff, the chairman of the Victorian Racing Club, an interlocutory injunction restraining the defendant from applying the name ‘Melbourne Cup’ to his beers and wines. Although there was no similarity between the plaintiff’s conducting the famous horse race and the defendant’s production of wines and beer, the plaintiff was held to have made out an arguable case that members of the public would at least be confused, and might wonder whether there was a connection between them. Whether this confusion arose by reason of the defendant’s activities or public misconceptions of trade mark law was not referred to as being relevant.40 Nevertheless, despite the difference in result of the above two cases, and the apparent difference in approach, it is arguable that there is no disparity in principle between liability for passing off and the matters which go to constitute a breach of s 18. On the one hand, passing off, like any other tort, requires a causal connection between the defendant’s acts and the loss suffered by the plaintiff.41 That causal link has not been emphasised in the

common law action, although traces of it are to be found in the now discredited idea that for success therein the parties must [page 680] be engaged in a ‘common field of activity’.42 But if, in a passing off action, the defendant is able to show that misapprehensions in the minds of the public as to a business relationship between the parties sprang from a faulty appreciation of the exclusivity of designs or words, and was not caused by his or her actions, it is difficult to believe that the plaintiff would succeed. And, on the other hand, members of the Federal Court have suggested43 that, in an action under the statutory provisions, if any uncertainty on the part of the public as to a trade relationship between the parties has been deliberately induced by the defendant, it will be more easy for the court to infer that the public has been misled, and, in consequence, the statutory proscription contravened.

Deceit 23.12 This tort imposes liability for statements which are known by their maker to be false. It requires a rather more extensive discussion than that accorded to injurious falsehood or passing off. For one thing, while there is no real doubt but that the other two torts considered in this chapter have been almost entirely overtaken by the provisions of the Trade Practices Act and the Australian Consumer Law, there are some statements which will not fall within the statutory proscription but may be actionable in deceit — that is, those which are not made ‘in trade or commerce’: see 22.7. For another thing, the action for misrepresentations made negligently, rather than deceitfully, has expanded considerably since its recognition by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd,44 so that the action in deceit must be compared with that in negligence, as well as with the statutory provisions just referred to.

23.13 In order to understand the present role of the tort of deceit, it is necessary to sketch, at least briefly, the history of the action by that name. The liability of the maker of an incorrect statement, and the redress available

to one misled thereby, is a facet of the law in which principles of tort, contract and equity are and have been intertwined. The first part of this section draws together some of the strands involved in the development of this area of the law. The second part considers in turn each of the aspects forming the basis for liability in deceit, and restrictions on that liability, and compares them with the basis for liability in negligence and under the statutes referred to. The third and final part sums up the comparisons thus made, in order to demonstrate the very limited field of operation which remains for deceit. [page 681]

History 23.14 Although there had been a writ of deceit since at least 1201, it was initially available only when the defendant had perpetrated a fraud on the court, by such means as arranging for the impersonation of another.45 The first use of the action in deceit as a means of imposing liability for misrepresentation was in the late fourteenth century,46 in relation to what would now be called a breach of warranty in a contract for the sale of goods. The reason for its use in those circumstances was that the action in debt or detinue was regarded as sufficient only to enforce the primary obligations of the sale — the promises to deliver and pay for the goods — so that the action in deceit was called in aid to provide a remedy in relation to statements made about the quality of the goods bargained and sold.47 From the late fourteenth century until towards the end of the eighteenth century, the action in deceit was confined to statements made in the course of negotiating a bargain. Liability was imposed thereby if the maker of the statement either had assumed responsibility therefor, or knew of the falsity of the statement.48 But in the latter years of the eighteenth century, two changes occurred in the pattern of liability for statements. First, those statements for which the maker had assumed responsibility were sued on in assumpsit rather than deceit,49 and, secondly, the action in deceit was extended, by the decision in Pasley v Freeman,50 to encompass statements made (with knowledge of their falsity) to persons other than those with whom the maker

was negotiating for a contract; in Pasley v Freeman, the defendant’s false statement concerned the creditworthiness of a person with whom the plaintiff was proposing to deal. The next step in the development related to the remedies available at common law to the defrauded party. From about the middle of the nineteenth century that party was able, if the fraud had induced him or her into a contract with the defendant, to rescind the contract as an alternative or cumulative remedy to damages. During the sixteenth and seventeenth centuries, when the ‘consideration’ for a promise was still nothing more than the reason for its enforcement, there was no concept of rescission of a contract for fraud. If a promise had been induced by the fraud of the promisee, the promisor might either resist enforcement thereof by arguing a lack of consideration, or acknowledge that there had been a sufficient motive for the promise and recover the loss suffered by an action in deceit for damages.51 With the development, in the late eighteenth century, of the concept of a bilateral contract, the effect of the earlier approach of arguing that a promise induced by fraud lacked consideration appears to have been that fraud rendered a contract void. But the result of such a conclusion was that, if the contract had been fully or partly performed, causes of action other than fraud had to be relied on — that is, goods transferred might be recovered in [page 682] trover, and money paid sought back on an indebitatus count. Fraud, as a cause of action, was remediable only by an award of damages. Such damages would have been sustained only if the contract were treated as valid.

23.15 In the middle of the nineteenth century, with the rise in popularity of the joint stock company, persons who had been induced by fraud to become shareholders sought to be relieved of their obligations either to the company or to creditors thereof. Although Lord Tenterden CJ, speaking for the Court of King’s Bench in 1831, had remarked in passing that ‘fraud … destroys the contract altogether’,52 it was only 25 years later that Lord Campbell CJ, also in the Court of Queen’s Bench, was able to say that it was by then ‘well settled that a contract tainted by fraud is not void but only voidable at the election of the party defrauded’.53 The latter view was acted upon by that

court in Clarke v Dickson,54 and the principle approved by the House of Lords in Oakes v Turquand.55 The courts of common law had thus achieved a concurrent and co-extensive jurisdiction with the courts of chancery, in the case of a contract induced by fraud, either to rescind the contract or to award damages (or compensation) to the defrauded party.56 Furthermore, while the common law action in deceit had, since Pasley v Freeman, also been available in circumstances other than those in which the defendant’s fraud resulted in the plaintiff’s entering into a contract with the former, the courts of equity also had power to grant compensation in like circumstances.57 But although, at that time, the remedies available in courts of common law and equity were much the same, the notion of what constituted fraud was substantially different. At common law, fraud or deceit required proof that the defendant knew that the statement was false,58 or was reckless as to its truth or falsity.59 In equity, on the other hand, the defendant might be accounted as fraudulent, even though he or she had honestly believed at the time of making a statement that it was true, if that belief were the product of forgetfulness or want of care.60

23.16 However, the decision of the House of Lords in Derry v Peek61 wrought a substantial change to the liability for false statements. It held that, both in equity and at common law, fraud or deceit was constituted only by knowledge, on the part of the maker of a statement, of its falsity or recklessness as to its truth or falsity, and [page 683] it was subsequently interpreted62 as denying to courts of equity the power to grant compensation for a false statement honestly believed in. Thereafter, until Hedley Byrne & Co Ltd v Heller & Partners Ltd,63 a statement which caused loss to its recipient by reliance thereon, but which did not induce that person to enter into a contract with its maker, was remediable only if the latter were fraudulent in the narrow, common law, sense. If the statement did induce the making of a contract between plaintiff and defendant, the remedies of the former differed markedly, depending upon whether the statement was fraudulent or not. If it was, the plaintiff continued to have available a right of action in damages for deceit, and the alternative or cumulative remedy of

rescission of the contract. If the statement was not made with knowledge of its falsity, the plaintiff might seek rescission in equity64 but, at common law, the right to claim damages depended upon showing that the statement had been made with promissory intent.65

Comparison of deceit with negligence and statutory protection against misleading statements 23.17 Deceit may be defined as a false representation made by the defendant with knowledge of its falsity, or reckless as to its truth or falsity, with the intention that the plaintiff should act in reliance on the representation, which causes damage to the plaintiff in consequence of the latter’s reliance upon it.66 It is the purpose of this section to consider the various constituents of this tort, and to compare each of them both with the grounds for liability for a negligent misrepresentation and with the statutory proscription against misleading or deceptive conduct contained in the Australian Consumer Law s 18.

The nature of the misrepresentation 23.18 Deceit This tort, it was traditionally said,67 required ‘some active misstatement of fact’, but such a comment must be very considerably qualified. First, non-disclosure will found liability if: (i) what is left unsaid gives a deceptive meaning to that which is uttered;68 (ii) the statement was true when made but becomes false to the maker’s knowledge before it is relied on by the plaintiff;69 or (iii) the statement was believed to be true when it was made, but the maker discovers its falsity prior to the plaintiff’s reliance thereon.70 But the High Court has recently held that since one spouse is under no duty to reveal to the other any extra-marital sexual relationship, silence as to the paternity of children born during the marriage will not constitute deceit.71 [page 684]

Secondly, it is not only misstatements which may be fraudulent; the defendant’s actions, rather than his or her words, may be just as effective in deceiving the plaintiff.72 Thirdly, while both courts73 and commentators74 continue to adhere to the formula that deceit is constituted by a false representation of ‘fact’, it is acknowledged on all sides that the state of a person’s mind may be a fact for these purposes. It has, therefore, been long established that a statement, known to be false, of opinion,75 of the maker’s intention,76 or of the law77 will form the basis in deceit. Fourthly, an ambiguous statement is to be given the meaning intended of it by the defendant,78 unless that meaning is so unrealistic and unreasonable as not to be fairly capable of having been entertained by him or her.79

23.19

Negligence In some respects, liability for negligent misrepresentation may be incurred in relation to a wider range of activities than is the case in deceit: see 13.18ff. In particular, a failure to communicate relevant information will be treated as negligence more readily than it will be branded as fraud. Liability in negligence is similar to that in fraud, in that the former will also be found if an omission gives a misleading impression to what is said80 or if there is a failure to correct a statement which the maker ought to have realised has been subsequently falsified.81 But liability in negligence extends beyond that in fraud. A defendant will incur liability for the former, though not the latter, wrong if the parties are in a relationship in which the plaintiff has reasonably relied upon the defendant either to warn the former of pitfalls of which the latter ought to be aware82 or to provide such full and complete information as a reasonable person would regard as necessary.83 And a defendant may also be liable in negligence (though not in deceit) even in the absence of reliance by the plaintiff on the defendant, if the latter has assumed a responsibility towards the plaintiff to advise of circumstances which may affect his or her financial affairs.84 A second difference between the two torts is that, when negligent misrepresentation is alleged, the courts have discarded as irrelevant any supposed distinction based on the classification of the statement as one of information (or fact) as opposed to one of advice (or opinion).85 Since the cornerstone of liability for negligent misrepresentation is reasonable reliance by the plaintiff on the defendant, there can

[page 685] be little doubt that a misstatement as to the law, negligently made, might found liability if it were such as might reasonably have been relied on.86 From a practical point of view, however, since a misstatement of one’s intentions must be known to be false, an action thereon will continue to lie in deceit and not in negligence.

23.20 The statutory proscription One difference between liability for misleading or deceptive conduct under the statutory proscription and liability for fraudulent or negligent misstatements is that the former is incurred only when the defendant’s conduct is ‘in trade or commerce’. The meaning of this phrase has been discussed in 22.7 and need not be further considered here. A second difference, in this respect between liability under the Australian Consumer Law and in negligence, is that, with regard to the former, the defendant’s failure to speak — whether to advise the plaintiff of a change of circumstances or to correct an erroneous view — will be a contravention of s 18 only if the defendant had adverted to the need to speak: see 22.37. Liability in negligence is incurred, however, so long as the defendant ought, in all the circumstances, to have been aware of the effect of silence.87 Where the defendant has made a positive misstatement, it is suggested that there is no distinction between liability under the statutes and in negligence. Despite a tendency on the part of some members of the judiciary to classify statements as being of fact, opinion, prediction, etc for the purpose of determining liability under the statutory proscription, it has been argued in 22.28 that this approach is unnecessary, and that reasonable reliance is as much the touchstone of finding a contravention of the statutory proscription as it is of liability for negligent misrepresentation.

The defendant’s state of mind 23.21 It has been observed in 23.16 that after the decision of the House of Lords in Derry v Peek88 an action in deceit lies only on proof that the maker of a statement either knew of its falsity or was reckless as to its truth or falsity.89 Liability for negligent misrepresentation may be incurred, however, so long as the defendant ought to have known that the words would deceive

(see 13.31), while a contravention of the Australian Consumer Law s 18 may be committed in the absence of either intention or negligence on the part of the defendant: see 22.4.

Persons to whom the defendant may be liable 23.22 Deceit A person is liable in deceit only to those to whom he or she intended the statement to be directed. This does not mean that the statement must have been made directly to the plaintiff. Liability follows if the statement was made to a third party with the intention that it be acted on by the plaintiff, or made to a class of people to which the plaintiff belonged.90 [page 686]

23.23 Negligence A duty to take care in making a statement extends only to those whom the defendant may reasonably contemplate form an ascertainable class of vulnerable persons unable to protect themselves against the harm flowing from the misstatement. The duty does not extend to all those whom the defendant can reasonably foresee as being likely to rely on his or her words: see 13.23. This relationship may be found when the defendant knows, or ought reasonably to contemplate, that the statement will be relied on by an individual91 (even though unspecified),92 at least if the defendant intended to induce recipients of the statement to act on it.93

23.24 The statutory proscription The question of the range of persons to whom a defendant may be liable for contravening the Australian Consumer Law s 18 has not yet been answered conclusively. It may, however, cogently be argued that such a range is wider even than that in negligence. The section contains no limitation to liability based on the concept of a duty of care. The principal restriction to be derived from the words of the enactment is that there must be a causal connection between the defendant’s conduct and the plaintiff’s being led into error: see further 22.27. If, therefore, A makes a statement on which it is reasonable for B to rely, even though A is unaware of the likelihood of that reliance, and B does rely thereon and is misled, it is difficult to see on what basis B may not successfully claim against A that the latter has contravened the statutory proscription.94

Disclaimers of liability 23.25 Deceit If a fraudulent misrepresentation induces the recipient thereof to enter into a contract with its maker, any attempt by the latter in the terms of that bargain to exclude liability for the deceit will be ineffective. The fraud is regarded as being complete on the plaintiff’s deciding to enter into the contract, and for the defendant to attempt to shelter behind the terms of the agreement is itself regarded as a fraud.95 Furthermore, even if the defendant’s statement, which is known to be false, is qualified by a phrase such as that it is ‘without responsibility’ on the part of its maker, he or she will still be liable in deceit.96

23.26 Negligence In an action for negligent misrepresentation, on the other hand, the defendant may be absolved from liability either by a suitably drawn clause in a contract which has been induced by the representation,97 or by an adequate [page 687] disclaimer of responsibility issued at the time of making the original statement.98

23.27 The statutory proscription The effect of a disclaimer by one who is alleged to have contravened the Australian Consumer Law s 18 is more akin to an attempt to exclude liability for fraud. If the contravening conduct has been engaged in during the course of negotiating for a contract, a clause in the resulting agreement which purports to free the defendant of liability will not, of itself, be effective.99 But if thdefendant’s conduct is constituted by a statement which is so qualified as to indicate its recipient that he or she might not reasonably rely on the maker thereof, it appears that such conduct may not be a contravention of the statutory proscription.100

Extent of harm for which the defendant will be liable 23.28 Deceit Until the latter years of the twentieth century, a rule of practice had developed in the courts which substantially limited the measure

of the plaintiff’s damages in the situation in which the action in deceit was most commonly relied on — that is, that in which the plaintiff had been induced to enter into a contract of purchase. The plaintiff was regarded as able to recover no more than the difference between the value of that which had been acquired and the money expended.101 However, it has now been accepted102 that a plaintiff is entitled to recover consequential losses flowing from a fraudulent misstatement, such as the amount laid out, and lost, in operating a business which he or she had been induced to purchase. With the acceptance of the ability of a plaintiff to recover such consequential losses has come the question of the limits to be placed on the extent of those recoverable losses. Despite some earlier comments, suggesting that a defendant will be liable only for those losses which might reasonably have been foreseen as flowing from the deceit,103 the House of Lords has held that the defendant is liable for all the losses directly caused by entering into the transaction induced by the defendant’s fraud, whether those losses were foreseeable or not,104 a view which has been supported in the High Court of Australia.105

23.29 Negligence As with any other action in negligence, the damages recoverable for a negligent misrepresentation are limited to those which are of a kind or class that was reasonably foreseeable by the defendant.106 [page 688]

23.30 The statutory proscription A person who has contravened the provisions of the Australian Consumer Law s 18 may be liable in damages under s 236 thereof. The legislation contains no reference to limitations on the extent of the damages recoverable such as the concept of remoteness, and, as with other aspects of this legislation, it is simply a matter of applying the words of the statute to the matter at hand.107

Availability of exemplary damages 23.31 In appropriate circumstances, where the defendant has practised the fraud with a high-handed disregard for the plaintiff’s rights, the latter may, in

an action in deceit, recover not only the loss thereby suffered but also exemplary damages.108 It is, however, unlikely that such a remedy might be granted in an action for a negligent misstatement and, if the plaintiff relies for the cause of action on the Australian Consumer Law, the remedy of damages provided for in s 236 is designed solely to compensate the plaintiff and does not extend to the award of exemplary damages.109

Conduct of the plaintiff: causation 23.32 Deceit The plaintiff must prove that the fraud practised by the defendant was one of the reasons for the former acting to his or her detriment in reliance thereon. The issue of causation is solely one of fact,110 so that its determination must depend upon all the circumstances of each case. So many and varied are the reasons which motivate a person to a particular course of action that the courts have recognised that an action will lie so long as the plaintiff is able to convince the tribunal that the defendant’s fraudulent misrepresentation was a contributing factor to the former’s decision. The plaintiff may therefore succeed, even though he or she was also actuated by misapprehensions from other sources,111 or his or her own predetermined desire to embark on a particular adventure.112 The plaintiff will fail only if the court concludes that he or she relied entirely on a personal judgment,113 or had sufficient knowledge both of the falsity of the defendant’s representation and of the true state of affairs as to destroy any inducing effect of that representation.114 Furthermore, it is no defence that the plaintiff was foolish or careless in relying on the defendant’s representations, or failed to take a readily available opportunity of verifying the statements.115

23.33 Negligence The plaintiff in an action for negligent misrepresentation must [page 689] show the same causal connection between the defendant’s statement and the loss as in an action for deceit, so that the action will fail if that statement did

not materially affect the plaintiff’s decision.116 The plaintiff’s failure to exercise reasonable care for his or her own financial security may also lead to a reduction in the award of damages, on the application of the apportionment legislation.117

23.34 The statutory proscription While the Trade Practices Act s 82 did not expressly require proof of a causal connection between a contravention of s 52 of that Act, that omission has been remedied, and s 236 requires a claimant to show that loss or damage has been suffered ‘because of’ the conduct of another person’. The Competition and Consumer Act 2010 (Cth) s 137B permits the reduction of a plaintiff’s damages to reflect the extent to which the plaintiff’s failure to take reasonable care to protect his or her own interests contributed to the extent of the loss. However, the state and territory fair trading legislation has no similar provision, and hence leaves no room for reducing the plaintiff’s award on account of any contributory fault.118

Vicarious liability for agents 23.35 Deceit As will be discussed in Chapter 26, whether a defendant is to be held vicariously liable for the acts of another normally depends upon the classification of that other as either an employee of the defendant or an independent contractor. However, when a person has entrusted to another the functions of representing him or her, that person’s liability depends upon whether the other is an agent, and not on whether that other is an employee.119 Deceit being an intentional tort, the liability of a principal for false statements made by an agent requires a concurrence in either the principal or the agent of the making of a statement (or authority to do so) and knowledge of its falsity. Thus, a principal will have committed the tort if (i) the principal authorised120 or permitted121 the agent to make the statement, which the principal knows to be false, even though the agent believes it to be true; or (ii) the agent makes a statement which he or she knows to be false, if in so doing the agent is acting within the course of employment,122 even though the principal is unaware of the falsity and the [page 690]

information is passed on to the plaintiff through the innocent principal123 or through another agent.124 However, a principal incurs no liability for this tort if the agent makes a statement which the latter believes to be true, even though the principal knows facts which render the statement false, so long as the principal was unaware of the making of the statement and did not authorise it.125 In such a circumstance, the agent is not liable, since he or she did not know of the falsity, and the principal cannot be fixed with responsibility for a statement the making of which he or she could not have been aware. Despite the logic of this conclusion, it may at times cause difficulties for a person who seeks to bring an action in deceit against a large organisation, since the member of the organisation who has made the relevant statement may be different from the one who has knowledge of its falsity.126

23.36 Negligence A principal will be vicariously liable for a negligent misrepresentation in the same circumstances as would found liability in deceit.127 And, since negligence is not an intentional tort, it would appear that the principal would also be liable for a statement made innocently by an agent if the principal (or someone for whom the principal is responsible) ought reasonably to have known either that the statement was incorrect or that it would have been made.128

23.37 The statutory proscription Since liability for a contravention of the Australian Consumer Law s 18 is independent of either intention or negligence,129 that liability may be incurred whenever the principal, or someone for whom he or she is responsible, makes a statement which is misleading or deceptive. The state of mind of either the principal or the agent is irrelevant.

The need for written evidence 23.38 Deceit In order to prevent the evasion of the requirement in the Statute of Frauds 1677 that a guarantee is unenforceable unless in writing, the United Kingdom Parliament passed the Statute of Frauds Amendment Act 1828. Section 6 thereof renders unenforceable ‘any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealing of any other person’ for the purpose of the

latter obtaining credit, unless the representation or [page 691] assurance is in writing, signed by the party to be charged therewith. Although there is no longer a statutory requirement of writing for guarantees in three of the Australian jurisdictions,130 s 6 of the 1828 Act is either in force, or has been substantially re-enacted, in all the Australian jurisdictions other than New South Wales and Queensland.131 It is no longer in force in New Zealand.132 The provision has been interpreted restrictively as applying only in those circumstances where the plaintiff is seeking to evade the provisions of the Statute of Frauds133 and not, for instance, where the defendant has fraudulently misrepresented the value or worth of a business to its purchaser.134

23.39 Negligence and the statutory proscription Section 6 of the Act of 1828 does not apply to a negligent misrepresentation as to credit135 nor, it must be assumed, to a statement that misleads its recipient as to the creditworthiness of another.

Conclusion 23.40 If a person makes a statement (or, by failing to divulge relevant information, creates a misleading impression) in trade or commerce, by reason of which the plaintiff suffers financial harm, the latter will, in all but a very limited number of circumstances, be better advised to pursue an action under the Australian Consumer Law s 18 than at common law. The principal advantage of so doing is that the section does not impose on the plaintiff the burden of proving either the defendant’s state of mind (as would be the case in an action in deceit) or those matters of which the defendant ought reasonably to have been aware (which would be necessary in an action for negligent misrepresentation).

23.41 There are, however, two circumstances in which (given that the defendant can be shown to have had knowledge of the falsity of the statement) an action in deceit may succeed, although no breach of the

statutory proscription can be shown. First, a qualification of the statement by the defendant, at the time that it was made, may render it such that the plaintiff could not reasonably have relied thereon, and hence not be a contravention of the statute, although that qualification would be unlikely to protect the defendant to an action in deceit: see 23.25. Secondly, a plaintiff who is particularly gullible, or who failed to take a readily available opportunity to check the defendant’s statement may be regarded as having been led into error, not by the defendant’s statement but by his or her own foolishness; a contravention of the [page 692] statutory proscription would not have been made out, but the plaintiff’s gullibility would not avail the defendant sued in deceit: see 23.32.

23.42 Where the defendant’s statement, or a failure to speak, was not in trade or commerce, leaving the plaintiff no choice but to rely on the common law, an action in negligence may be successfully pursued in relation to a wider range of circumstances than is the case in deceit, especially when the plaintiff’s complaint is the defendant’s failure to provide relevant information: see 23.19. On the other hand, the defendant’s disclaimer of liability, and the plaintiff’s failure to take reasonable care for his or her own financial position, will affect the outcome of a negligence action, but will be irrelevant to proceedings brought in deceit: see 23.26 and 23.33 respectively. _______________ 1.

See the 1st edition of his work on Torts, p 417; the introductory paragraph to Ch 15 of that edition has remained unchanged in each subsequent edition, and is now to be found as the opening comment to Ch 18, p 369, of the 21st edition.

2.

[1892] 2 QB 524 at 527–8.

3.

Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 799 per Hunt J.

4.

Taylor v Hyde [1918] NZLR 279 (SC).

5.

The notion of ‘malice’ in this context is not easy to define: see Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 291 per Pincus J (Fed Ct).

6.

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280.

7.

Brown v Jam Factory Pty Ltd (1981) 35 ALR 79 at 87 per Fox J; see 22.32.

8.

Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 507–8; 68 ALR 77 at 102 per Jackson J (FC); Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 93 per Lockhart J (Fed Ct, FC); Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 40–1; 110 ALR 608 at 618–19 per Gummow J (FC).

9.

See, eg, Yorke v Lucas (1985) 158 CLR 661 at 666; 61 ALR 307 at 309; 22.4.

10.

See generally 22.46.

11.

Brabazon v Western Mail Ltd (1985) 8 FCR 122 at 129 per Toohey J; RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 179–80; 112 ALR 511 at 526–7 per Beaumont and Spender JJ (FC).

12.

Australian Consumer Law s 232(4)(c).

13.

For a discussion of these types of damages, see 27.7 and 27.10 respectively.

14.

Musca v Astle Corp Pty Ltd (1988) 80 ALR 251 at 263–8 per French J (Fed Ct).

15.

For a discussion of the history of the tort, see Morison, ‘Unfair Competition and Passing Off’ (1956) 2 Syd L Rev 50 at 53–7.

16.

See Meagher, Gummow and Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 4th ed, 2002, [42-015].

17.

[1979] AC 731 at 742; 2 All ER 927 at 932–3.

18.

Ibid at 755; 943–4.

19.

(1980) 32 ALR 387.

20.

[1981] 1 NSWLR 196 at 204.

21.

Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873 at 880 per Lord Oliver, at 890 per Lord Jauncey.

22.

Consorzio del Prosciutto di Parma v Marks & Spencer plc [1991] RPC 351 at 368–9 per Nourse LJ.

23.

Henderson v Radio Corp Pty Ltd [1960] SR (NSW) 576 (FC); Irvine v Talksport Ltd [2003] 2 All ER 881 (CA); see generally Hylton and Golson, ‘The New Tort of Appropriation of Personality: Protecting Bob Marley’s Face’ [1996] CLJ 56.

24.

Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403, aff’d (1989) 23 FCR 553; 87 ALR 14 (FC); Hogan v Koala Dundee Pty Ltd (1988) 83 ALR 187 (Fed Ct); in both cases the defendants were also found to be in breach of the Trade Practices Act 1974 (Cth) s 52: see 22.21.

25.

British Telecommunications plc v One in a Million Ltd [1998] 4 All ER 476 (CA); Oggi Advertising Ltd v McKenzie [1999] 1 NZLR 631.

26.

Clark v Associated Newspapers Ltd [1998] 1 All ER 959.

27.

Bristol Conservatories Ltd v Conservatories Custom Built Ltd [1989] RPC 455 (Eng CA); Matthew Gloag & Son Ltd v Welsh Distillers Ltd [1998] FSR 718.

28.

Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 (Fed Ct, FC); ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465 (FC); Hansen Beverage Co v Bickfords (Aust) Pty Ltd (2008) 171 FCR 579; 251 ALR 1 (FC); Green v Broadcasting Corp of New Zealand [1988] 2 NZLR 490 (CA) (aff’d on different grounds [1989] 2 All ER 1056 (PC)).

29.

See, eg, McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 405 per Northrop J (Fed Ct, FC).

30.

A-G (NSW) v Holy Apostolic & Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293; aff’d (1989) 18 NSWLR 295 (CA).

31.

Guide Dogs Owners’ & Friends’ Assoc Inc v Guide Dogs Assoc of NSW Inc (1998) 42 IPR 481 at 497 per Sackville J (Fed Ct); aff’d (1999) 43 IPR 531 (Fed Ct, FC).

32.

See, eg, ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 380–1; 106 ALR 465 at 542–3 per French J (FC) (extent of local reputation necessary); Tot Toys Ltd v Mitchell [1993] 1 NZLR 325 at 367–8 per Fisher J (character merchandising).

33.

[1979] AC 731 at 742; 2 All ER 927 at 933.

34.

BM Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 12 ALR 363 at 370–1 per Gibbs J.

35.

Cooper v Frost [1937] NZLR 1071; George v Bentley (1972) 3 SASR 170; cf Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196, in which Powell J, in interlocutory proceedings, cast considerable doubt on the bona fides of the defendants.

36.

Burswood Management Ltd v Burswood Casino Motel/Hotel Pty Ltd (1985) 7 FCR 186; Taylor Bros Ltd v Taylors Group Ltd [1988] 2 NZLR 1 (CA); and see generally 22.19.

37.

Erven Warnink BV v J Townsend & Sons (Hull) Ltd [1979] AC 731 at 742; 2 All ER 927 at 933 per Lord Diplock (HL). Such conduct would give rise to liability at common law only in an action for injurious falsehood, one requirement of which is malice on the part of the defendant: cf Emaco Ltd v Dyson Appliances Ltd [1999] ETMR 903.

38.

(1980) 33 ALR 394.

39.

(1986) 7 IPR 1.

40.

The same comparison as in the text may also be drawn between Lego Australia Pty Ltd v Paul’s (Merchants) Pty Ltd (1982) 42 ALR 344, referred to in 22.20, and Lego Systems A/S v Lego M Lemelstrich Ltd [1983] FSR 155, in which Falconer J enjoined the defendant from marketing irrigation equipment in England under the name ‘Lego’, at the suit of the plaintiff toy manufacturers.

41.

See the observations of Lord Diplock in the Erven Warnink case [1979] AC 731 at 742; 2 All ER 927 at 932–3, and those of Powell J in the Fletcher Challenge case [1981] 1 NSWLR 196 at 204, quoted in 23.6 and 23.7 respectively.

42.

The notion derived from the decision of Wynn-Parry J in McCulloch v LA May (Produce Distributors) Ltd (1947) 65 RPC 58, but that decision has never been applied in Australia: see Henderson v Radio Corp Pty Ltd [1960] SR (NSW) 576 (FC); Campomar Sociedad Ltda v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677 at [110], and has been severely doubted in England: Irvine v Talksport Ltd [2002] 1 WLR 2355; 2 All ER 414 at [29] per Laddie J; cf Carty, ‘Dilution and Passing Off: Cause for Concern’ (1996) 112 LQR 632.

43.

Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460 at 474–5 per Lockhart J; New South Wales Dairy Corp v Murray-Goulburn Co-op Co Ltd (1989) 86 ALR 549 at 558–9 per Gummow J (aff’d (1990) 92 ALR 239); Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 at 48 per Burchett J; Telmak Teleproducts (Aust) Pty Ltd v Coles Myer Ltd (1989) 89 ALR 48 at 68–9 (Fed Ct, FC); Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496 (FC).

44.

[1964] AC 465; [1963] 2 All ER 575; see 13.19.

45.

Pollock and Maitland, History of English Law, Vol 2, 2nd ed, 1898, p 534.

46.

The relevant cases are discussed in Simpson, A History of the Common Law of Contract, 1975,

pp 242–3. 47.

Ibid, p 243.

48.

See, eg, Harvey v Young (1602) Yelv 20; 80 ER 15, the note to Stuart v Wilkins (1778) 1 Doug 19 at 21; 99 ER 15 at 17: ‘express warranty without knowledge, or knowledge without warranty, will make the seller responsible for unsoundness’, and Williamson v Allison (1802) 2 East 446; 102 ER 439.

49.

The change in pleading commenced in about 1760 (see Stuart v Wilkins, fn 48 above; Williamson v Allison, fn 48 above), and possibly the last action on an express warranty to be brought in deceit was Brown v Edgington (1841) 2 M & G 279; 133 ER 751.

50.

(1789) 3 TR 51; 100 ER 450.

51.

Simpson, A History of the Common Law of Contract, 1975, pp 535–6.

52.

Street v Blay (1831) 2 B & Ad 456 at 462; 109 ER 1212 at 1214.

53.

Deposit & General Life Assurance Co v Ayscough (1856) 6 E & B 761 at 763; 119 ER 1048; despite his Lordship’s assurance, it was put in argument in Western Bank of Scotland v Addie (1867) LR 1 Sc & Div 145 at 150 that the rule that a contract procured by fraud was voidable and not void was one of ‘recent recognition’ in England.

54.

(1858) E B & E 148; 120 ER 463.

55.

(1867) LR 2 HL 325, esp at 346 per Lord Chelmsford LC.

56.

Newbigging v Adam (1887) 34 Ch D 582 at 592 per Bowen LJ.

57.

Burrowes v Lock (1805) 10 Ves Jun 470; 32 ER 927; Slim v Croucher (1860) 1 De G F & J 518; 45 ER 462.

58.

Despite some differences of opinion between the Courts of Queen’s Bench and of Exchequer (referred to in Smith’s Leading Cases, 5th ed, 1862, pp 88–9) the matter was settled by the Court of Exchequer Chamber in Evans v Collins (1844) 5 QB 820; 114 ER 1459 and Ormrod v Huth (1845) 14 M & W 651; 153 ER 636.

59.

See, eg, Redgrave v Hurd (1881) 20 Ch D 1 at 13 per Jessel MR; Smith v Chadwick (1882) 20 Ch D 27 at 44 per Jessel MR, at 75 per Lindley LJ.

60.

Burrowes v Lock (1805) 10 Ves Jun 470; 32 ER 927; Slim v Croucher (1860) 1 De G F & J 518; 45 ER 462; and see Robinson v Abbott (1894) 20 VLR 346 at 366–7 per Holroyd J.

61.

(1889) 14 App Cas 337.

62.

By Lindley and Bowen LJJ, in Low v Bouverie [1891] 3 Ch 82.

63.

[1964] AC 465; [1963] 2 All ER 575; see 13.18.

64.

The remedy was established in Redgrave v Hurd (1881) 20 Ch D 1 and was not affected by Derry v Peek.

65.

This requirement was finally determined in Heilbut, Symons & Co v Buckleton [1913] AC 30.

66.

For a restatement of the elements of the tort, see Tresize v National Australia Bank Ltd (2005) 220 ALR 706 at [38] per Sundberg J (Fed Ct).

67.

Peek v Gurney (1873) LR 6 HL 377 at 403 per Lord Cairns.

68.

Curwen v Yan Yean Land Co Ltd (1891) 17 VLR 745; Bristow v Moffatt-Virtue (Qld) Pty Ltd [1962] Qd R 377; Awaroa Holdings Ltd v Commercial Securities and Finance Ltd [1976] 1 NZLR 19; Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 130 ALR 1; and see

Conlon v Simms [2007] 3 All ER 802 (CA). 69.

Awaroa Holdings Ltd v Commercial Securities and Finance Ltd, fn 68 above; Jones v Dumbrell [1981] VR 199.

70.

Robertson v Belson [1905] VLR 555; Lockhart v Osman [1981] VR 57 at 69–70 per King J.

71.

Magill v Magill (2006) 226 CLR 551; 231 ALR 277, at [135] per Gummow, Kirby and Crennan JJ; but see the note by Handley, ‘Paternity Fraud’ (2007) 123 LQR 337.

72.

Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561 (CA); Wood v Balfour [2011] NSWCA 382 at [7] per Giles JA, with whom Meagher JA agreed, at [151], cf Macfarlan JA at [50].

73.

See, eg, Jones v Dumbrell [1981] VR 199 at 202 per Smith J.

74.

See, eg, Salmond and Heuston on Torts, 21st ed, 1996, p 369.

75.

Commercial Banking Co of Sydney Ltd v RH Brown & Co (1972) 126 CLR 337; Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49.

76.

Edgington v Fitzmaurice (1885) 29 Ch D 459; Jones v Dumbrell [1981] VR 199.

77.

Oudaille v Lawson [1922] NZLR 259; Public Trustee v Taylor [1978] VR 289.

78.

See, eg, John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656; Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 578; 130 ALR 1 at 12.

79.

See, eg, Awaroa Holdings Ltd v Commercial Securities and Finance Ltd [1976] 1 NZLR 19 at 32–3 per Perry J.

80.

Shaddock (L) & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385.

81.

Abrams (J & JC) Ltd v Ancliffe [1978] 2 NZLR 420.

82.

Sacca v Adam (1983) 33 SASR 429 (FC); County Personnel (Employment Agency) Ltd v Alan R Pulver & Co [1987] 1 WLR 916 (CA).

83.

Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149; 55 ALR 509.

84.

Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69.

85.

San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 356; 68 ALR 161 at 170.

86.

Cf Commonwealth v Murray (1988) Aust Torts Reports 80-207 (NSWCA).

87.

See the comment of Einfeld J in Edgar v Farrow Mortgage Services Pty Ltd (unreported on this point, Federal Court, 26 August 1992, transcript p 68).

88.

(1889) 14 App Cas 337.

89.

For a discussion of the state of mind necessary, see Commonwealth v Murray (1988) Aust Torts Reports 80-207 at 68,044–7 per Priestley JA (NSWCA). A motive or intention to deceive is not necessary: Krakowski v Eurolynx Properties Ltd (1995) 185 CLR 563 at 579–81; 130 ALR 1 at 13–14.

90.

Commercial Banking Co of Sydney Ltd v RH Brown & Co (1972) 126 CLR 337; Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49; in the leading case of Peek v Gurney (1873) LR 6 HL 377 the plaintiff was held unable to recover, as he did not belong to the class of people to whom the defendant’s statement (in a prospectus) was directed.

91.

Smith v Eric S Bush [1990] 1 AC 831; [1989] 2 All ER 514 (HL); Kendall Wilson Securities Ltd v Barraclough [1986] 1 NZLR 576 (CA).

92.

Scott Group Ltd v McFarlane [1978] 1 NZLR 553 (CA).

93.

Esanda Finance Corp Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241; 142 ALR 750; Lowe Lippmann Figdor & Franck v AGC (Advances) Ltd [1992] 2 VR 671 (App Div).

94.

But see Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) ATPR 41-017 (Fed Ct), in which the defendant was held not to be liable to the second plaintiff, both because the defendant did not owe it a duty of care in the circumstances, and because there was no sufficient causal link between the defendant’s conduct and the plaintiff’s being misled.

95.

Pearson (S) & Son Ltd v Dublin Corp [1907] AC 351; Wehr v Thom [1969] WAR 39; Snarski v Barbarich [1969] WAR 46.

96.

Commercial Banking Co of Sydney Ltd v RH Brown & Co (1972) 126 CLR 337 at 344 per Menzies J, at 349-50 per Gibbs J.

97.

Brisbane Units Development Corp Pty Ltd v Robertson [1983] 2 Qd R 105 (FC); Dorotea Pty Ltd v Christos Doufas Nominees Pty Ltd [1986] 2 Qd R 91; Carman Construction Ltd v Canadian Pacific Railway Co (1982) 136 DLR (3d) 193 (SCC).

98.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575.

99.

Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367 (Fed Ct, FC); Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601 (aff’d sub nom Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 98–9 per Lockhart J (Fed Ct, FC)).

100. See Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357, but cf Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535; 107 ALR 291 (FC). 101. See, eg, McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR (NSW) 187 (FC). 102. Gould v Vaggelas (1985) 157 CLR 215; 56 ALR 31; Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; 2 All ER 119 (CA). 103. Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 12; 63 ALR 600 at 607 per Mason, Wilson and Dawson JJ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1989) 89 ALR 539 at 555 per Lee J (Fed Ct, FC). 104. Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254; [1996] 4 All ER 769; for earlier views favouring that approach, see Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 at 167; 2 All ER 119 at 122 per Lord Denning MR; Foster v Public Trustee [1975] 1 NZLR 26 at 29 per Cooke J; Royscot Trust Ltd v Rogerson [1991] 2 QB 297; 3 All ER 294 (CA). 105. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [64], [65] per Gummow J. 106. South Australia v Johnson (1982) 42 ALR 161 at 170; Barnes v Hay (1988) 12 NSWLR 337 (CA); David Kimber TV & Sound Ltd v Kaiapoi Borough Council [1988] 1 NZLR 376 (CA). 107. See the discussion at 22.49ff. 108. Musca v Astle Corp Pty Ltd (1988) 80 ALR 251 at 263–8 per French J (Fed Ct); see also Commonwealth v Murray (1988) Aust Torts Reports 80-207 at 68,049 per Priestley JA (NSWCA). On exemplary damages generally, see 27.10.

109. Musca v Astle Corp Pty Ltd (1988) 80 ALR 251. 110. Gipps v Gipps [1978] 1 NSWLR 454 at 460 per Hutley JA (CA); Gould v Vaggelas (1985) 157 CLR 215 at 238–9; 56 ALR 31 at 47–8 per Wilson J. 111. Edgington v Fitzmaurice (1885) 29 Ch D 459; Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96; Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561 (CA). 112. Gould v Vaggelas (1985) 157 CLR 215. 113. Holmes v Jones (1907) 4 CLR 1692 at 1702 per Griffith CJ. 114. Gipps v Gipps [1978] 1 NSWLR 454 at 460 per Hutley JA. 115. Amaltal Corp Ltd v Maruha Corp [2007] 3 NZLR 192 (SC NZ); Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959; 1 All ER 173; Boscaini Investments Pty Ltd v Petrides (1982) 103 LSJS 250. 116. JEB Fasteners Ltd v Marks Bloom & Co [1983] 1 All ER 583 (CA); Kullack v Australia & New Zealand Banking Group Ltd (1988) ATPR 40-861. 117. Kendall Wilson Securities Ltd v Barraclough [1986] 1 NZLR 576 (CA); AWA Ltd v Daniels (1992) 7 ACSR 759 (NSWSC) (aff’d (1995) 37 NSWLR 438 (CA)). 118. I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1; see 22.36. 119. Colonial Mutual Life Assurance Socy v Producers etc Assurance Co of Australia (1931) 46 CLR 41 at 48 per Dixon J; see 26.14. 120. Ludgater v Love (1881) 44 LT 694; if the agent also knows of the falsity of the statement, he or she is a joint tortfeasor: Watson v Dolmark Industries Ltd [1992] 3 NZLR 311 at 319 per Gault J (CA) and see Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959; 1 All ER 173. The authorisation may come from the employer’s subsequent ratification: Brockway v Pando (2000) 22 WAR 405 (FC). 121. Gordon Hill Trust Ltd v Segall [1941] 2 All ER 379 at 390 per Luxmoore LJ (CA). 122. Brockway v Pando (2000) 22 WAR 405 (FC). 123. Pearson (S) & Son Ltd v Dublin Corporation [1907] AC 351, as explained in Anglo-Scottish Beet Sugar Corp v Spalding UDC [1937] 2 KB 607 at 619–21; 3 All ER 335 at 342–3 per Atkinson J. 124. London County Freehold Properties Ltd v Berkeley Property & Investment Co Ltd [1936] 2 All ER 1039 (CA), as explained in the Anglo-Scottish Beet case; Stratford Borough v JH Ashman (NP) Ltd [1960] NZLR 503 at 520–1 (CA). 125. Armstrong v Strain [1952] 1 KB 232; 1 All ER 139 (CA) (but cf Woyka & Co v London & Northern Trading Co (1922) 10 LL L Rep 110 at 115 per Scrutton LJ (CA)); Stratford Borough v JH Ashman (NP) Ltd [1960] NZLR 503; Awaroa Holdings Ltd v Commercial Securities & Finance Ltd [1976] 1 NZLR 19 at 28–9 per Perry J. See also Misrepresentation Act 1971 (SA) s 7(2)(b) but cf Civil Law (Wrongs) Act 2002 (ACT) s 174(3)(b). 126. See the comments in Whinray v Public Trustee [1943] NZLR 239 at 244–5 per Callan J and Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582–3; 130 ALR 1 at 15–16. 127. Anderson (WB) & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850; Thompson v Henderson & Partners Pty Ltd (1989) 51 SASR 431; cf Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560; 1 All ER 865 and the critical note thereon by Cane (1992) 108 LQR 539. 128. Whinray v Public Trustee [1943] NZLR 239 at 245 per Callan J.

129. See 22.4. 130. Imperial Acts Application Act 1969 (NSW) s 8; Statutes Amendment (Contracts Enforcement) Act 1982 (SA) s 3; and see Civil Law (Property) Act 2006 (ACT) s 204. 131. ACT: Mercantile Law Act 1962 s 16; NT: The original Act is still in force, see De Garis v Dalgety & Co Ltd [1915] SALR 102; SA: The original Act is in force, see De Garis’s case; Tas: Mercantile Law Act 1935 s 11; Vic: Instruments Act 1958 s 128; WA: The original Act is still in force, and s 6 has been recommended for repeal and re-enactment: Law Reform Commission of Western Australia, United Kingdom Statutes in Force in Western Australia (1994). In New South Wales and Queensland, the re-enactment was repealed by the Usury, Bills of Lading, and Written Memoranda (Amendment) Act 1989 (NSW) and the Statute of Frauds 1972 (Qld) respectively. 132. Property Law Act 2007 (NZ) s 365(3)(b). 133. Banbury v Bank of Montreal [1918] AC 626 (HL). 134. Diamanti v Martelli [1923] NZLR 663. 135. Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556.

PART VII Other Interests Meriting Protection Chapter 24

Family Relations

Chapter 25

Misuse of Process

[page 695]

CHAPTER 24 Family Relations

24.1 The fact that two people are in a close family relationship, as husband and wife or as parent and child, still has some relevance to their rights and liabilities in the law of torts. As will be explained in this chapter, the bonds of marriage give to one spouse the right (in some of the jurisdictions) to a derivative action for the loss flowing from the physical and psychological harm suffered by the other. This is the action per quod servitium et consortium amisit, discussed in 24.2–24.6. Where the relationship is that of parent and child, that fact has relevance in a wider range of circumstances than the marital relationship. A parent has various rights of action against a third party in respect of acts affecting his or her child, and conversely, the circumstance of the close blood ties may be sufficient to deny liability on the part of a parent for injury to a child. These matters are considered in 24.7–24.16.

Husband and Wife 24.2 At common law, not only was there unity of the legal personality of spouses1 but the husband was regarded as having a proprietary or quasiproprietary interest in his wife and her services. This latter notion permitted the development of rights of action against one who had intentionally interfered with that interest, known as the torts of enticement and harbouring. Enticement consisted in intentionally inducing a married woman to leave her husband, while harbouring was committed by persuading her not to return after she had left. Both torts are obviously out of keeping with modern views of the marital relationship, and have been abolished by statute in both Australia2 and New Zealand.3

24.3 The common law view that a husband has a proprietary interest in his wife and her services gave rise to a further right of action when that interest had been negligently invaded by a third party. This is the action by which a husband might recover the loss he has suffered by being deprived both of the comfort and society of his wife and of the services which she had given him. It is commonly known as the action for loss of consortium. In the absence of statutory provision to the contrary, the action is available only to a husband and not to a wife.4 This rule continues to apply, despite the changes made [page 696] by the Family Law Act 1975 (Cth) to the obligations of spouses to maintain one another,5 and cannot be evaded by the wife claiming that the third party who injured her husband directly owed her a duty,6 notwithstanding the acceptance in some limited circumstances of an action for purely economic loss caused by another’s negligent acts.7 But that common law rule currently applies, and then only to a very limited extent, in Victoria and the Northern Territory. The action has been abolished in New South Wales, Tasmania, Western Australia, the Australian Capital Territory and New Zealand,8 as is also the case in England9 and in seven of the nine common law provinces in Canada.10 In Victoria, legislation relating to compensation for road accidents limits recovery to the injured person alone,11 thereby apparently abolishing the action for loss of consortium in respect of injuries suffered in such accidents.12 In the Northern Territory, the schemes for no-fault compensation for the victims of road and industrial accidents abolish the right to sue ‘for’13 or ‘in respect of’14 the injury sustained in such accidents, forms of words which would appear to include a claim for loss of consortium by the husband of the victim.15 On the other hand, legislation in Queensland and South Australia has extended the rule to give a wife the same rights as her husband had at common law.16 However, in Queensland the right of action was subsequently abolished in respect of injuries suffered by an employee in the course of employment,17 but the legislation effecting that abolition was itself repealed in 2001;18 the action is in any event not available unless the injured spouse’s damages are assessed at $30,000 or more.19

24.4 In those jurisdictions in which the action is maintainable, it is regarded as a right in the plaintiff spouse which is independent of the cause of action available to [page 697] the spouse who has been injured.20 Hence, in the absence of legislative provision to the contrary,21 the fact that, say, a wife was partly at fault in causing the accident, leading to a reduction in the damages which she might have recovered, will not result in any diminution of the damages recoverable in the consortium action by the husband.22 All that is required to found an action for loss of consortium is that the plaintiff’s spouse has suffered an injury as the result of the negligence of a third party, causing the plaintiff a deprivation or impairment of the injured spouse’s society or services. Although in most cases the injuries suffered by the spouse will be physical, the consortium action is available even when the spouse has undergone no more than the psychological harm of a nervous shock.23 But the action does not lie for any loss suffered after the termination of the marital bond by death24 or, it has been held, by divorce,25 although the justification for this latter limitation is questionable.26

24.5 The damages which may be claimed for this tort fall broadly under three heads: medical and similar costs incurred or to be incurred by the plaintiff on behalf of the injured spouse; the loss which the plaintiff suffers as a result of the injured spouse being unable to carry out services around the house; and the ‘temporal and material’, as distinct from the ‘spiritual’ aspects of the loss of society necessarily borne by the plaintiff.27 So far as the first of these is concerned — medical and nursing expenses — it is clear that the injured spouse could also claim these damages in his or her own action for personal injuries: see 11.13ff. If the injured spouse is the homemaker, it had previously been held that he or she has a right to claim for the value of carrying out household tasks which he or she is no longer able to undertake by reason of the injury, but that view has now been rejected by the High Court, which was prepared to accept only that the loss of the ability to provide household services was a factor to be taken into account in assessing

the injured spouse’s non-pecuniary losses.28 If both the injured spouse and the plaintiff in the consortium action have their actions heard together, it would apparently make little difference which of them claims for this head of loss. The judge will be able to ensure that there is [page 698] no duplication of recovery,29 and, if the injured spouse has been contributorily negligent, in South Australia and the Northern Territory (though not in Queensland or Victoria), the damages will be reduced even in the action for loss of services.30 Greater difficulty arises if the injured spouse settles his or her claim for the losses arising from that injury (or takes the matter to trial before a jury). A court which hears a subsequent action for loss of consortium by the other (uninjured) spouse has no means of determining whether the injured spouse has been compensated for the losses presently under consideration. The total sum arrived at in a compromise or a jury verdict will not itemise the particular heads of loss recovered. All that the court hearing the consortium actions can do is: … to provide the husband with the full measure of his entitlement to damages. If, however, it is proved that the wife has already recovered from the same defendant in respect of the same incident, the Court should do its best to ensure against double compensation for any component in the husband’s claim which was, or might have been, included in the wife’s.31

One means by which any duplication of recovery can be prevented is by assuming, in the consortium action, that any heads of loss claimed by the injured spouse have been fully compensated in the settlement (or by the jury’s verdict).32 The final head of damages which may be claimed in a consortium action is for the loss of society, companionship and comfort. This must, it has been said, ‘be confined to material or temporal loss capable of estimation in money’,33 by which is meant that there is no recovery for the plaintiff’s suffering, distress or depression resulting from the physical condition in which the other spouse has been put.34 What may be recovered is recompense for such matters as the loss or diminution in the extent or quality of sexual relations35 and companionship36 or the loss of aid, comfort and advice.37

24.6 In previous editions of this work, it was argued that the action for loss

of consortium should be abolished in those jurisdictions where it is still extant. In all but a few of the cases in which the action had been brought, the bulk of the verdict had comprised an amount to recompense the uninjured spouse for the value of services to the injured spouse, or the value of services around the home which the injured spouse is no longer able to perform. And since appellate courts in three jurisdictions had recognised a claim by the injured spouse for the value of services around the home which that spouse can no longer perform, it was argued that the abolition of the consortium action would not affect the total amount recoverable by a married couple for the injury to one of them. But since those appellate decisions have now been overruled by the High Court (see 11.19), on the basis that such a [page 699] development was an impermissible extension of the common law, the issue of the abolition of the consortium action must be left to state and territory legislatures.

Parent and Child 24.7 The relationship of parent and child has two quite separate effects in the law of torts. On the one hand, the parent (almost invariably the father, in view of the origins of these torts) may have a right of action in respect of acts of a third party which affect his child. On the other hand, if action is taken against a parent for injury done to his or her child, there are at least some circumstances in which the parent will be held free of liability for that injury. These two aspects of the effect of the relationship are considered in turn.

Rights of action in favour of a parent 24.8 A father’s rights of action in respect of acts of another which affect his child must be further subdivided into (1) those cases where no wrong is necessarily done to the child, but the father nevertheless has the right to sue — the torts of seduction, enticement and harbouring of a child; and (2) those instances in which the child suffers physical injury at the hands of another,

giving both the father and the child distinct causes of action — that of the father being one in the nature of an action for loss of services.

Seduction, enticement and harbouring 24.9 Anyone (other than her husband) who has sexual intercourse with a female is liable to her father for any consequent loss of her ability to provide household services to the father. This is the tort of seduction. The tort of enticement or harbouring is constituted by inducing a child to leave home or not to return home; it is similarly available only at the suit of the child’s parent, who has been deprived of the child’s domestic services. Both of these torts have an obviously archaic air in the twenty-first century, and have been abolished in South Australia, Tasmania, the Australian Capital Territory, New Zealand and England,38 as is also the case in seven of the nine common law Provinces in Canada.39 There do not appear to have been any reported cases of the invocation of these torts in Australia, New Zealand or England since the 1940s. Although they might therefore be regarded as having fallen into desuetude, there would seem to be no reason against their being formally abolished in the other jurisdictions.

24.10 The history of these torts is as peculiar as their continued existence in most jurisdictions in Australia. Medieval England recognised that a master had a [page 700] proprietary, or quasi-proprietary, interest in his servants, leading to the development of the actio per quod servitium amisit: see 20.9. During the same period, a husband’s quasi-proprietary interest in his wife and her services enabled the development of the husband’s action for loss of consortium: see 24.3. But the common law did not recognise a similar quasiproprietary interest of a parent in his child, and it was only by analogy from the two last-mentioned actions that the torts of seduction and enticement came to be accepted.40 Thus, the fact of a daughter’s seduction, or of a child’s enticement away from home, is but an incident of the action, the basis

of the father’s right being a deprivation of the services of the child.41 An action for seduction would consequently normally not be available unless the daughter were to become pregnant.42 However, while the loss to the father of the household help provided by his daughter might be the gist of the action, that requirement had been reduced to no more than a fiction by the early years of the nineteenth century. The fact that a daughter had occasionally made tea for her father could be sufficient to show that she had provided domestic services of which the father was deprived during her confinement.43 Indeed, in Victoria and Western Australia it is provided by statute that the fact of the relationship of daughter to father (or one in loco parentis) raises a conclusive presumption that the former has rendered household services to the latter.44 In the result, the action for seduction is a means whereby a father may seek damages, not confined to any loss in fact incurred by him,45 but for the ‘insult to [his] pride and honour’.46 And the action for enticement and harbouring may be a vehicle for a father exerting his parental authority over a child who has disobeyed his wishes and goes, for instance, to join a nunnery.47 When it is recalled that any right of action is vested solely in the parent and not the child — although often no wrong will have been done to the child48 — it is suggested that there is every reason for the other jurisdictions in Australia to follow the lead of South Australia, Tasmania and the Australian Capital Territory, and formally abolishing these rights of action.

Action in the nature of one for loss of services 24.11 It is clear that the action for loss of services, which is available to an employer if an employee has been negligently injured by a third party,49 may also be brought by a parent who, for the same reason, has been deprived of the household services [page 701] of a child.50 This action differs from those just discussed, as the action for loss of services is founded on the fact of personal injury to the child,51 a circumstance which is irrelevant to the actions for seduction, enticement or

harbouring. The action has been abolished in New Zealand and England,52 and may well not be available in Victoria, if the child is injured in a road accident, or in the Northern Territory if the injury is the result of a road or industrial accident.53 Even from the earliest times, evidence that the injured child had in fact provided services to the parent, of which the latter had been deprived by reason of the injury, was reduced to little more than a fiction.54 Nevertheless, the loss of such services remained the gist of the action, denying recovery where the child was only two years old at the time of the injury, and thus clearly unable to have provided any services.55

24.12 However, a different action has been recognised, based on an analogy with that for loss of services. Under it a parent is enabled to recover, in a separate action, for the medical and other like expenses necessarily incurred in the performance of the legal duty to provide care and attention to his or her child.56 The action is similar to that for loss of services, as the parent’s right to sue is regarded as independent of the child’s cause of action, with the result that any contributory negligence of the child will not go in reduction of the parent’s damages,57 in the absence of statutory provision to the contrary.58 But it is distinct from that action, as the right to claim for medical expenses depends upon the parent’s duty to provide for a child, and not on the fact that the injury to the child has deprived the father of the former’s services.59 The measure of damages available under this action extends beyond medical expenses incurred to include the cost of visits to the injured child, so long as such visits are a necessary aspect of the child’s recovery.60 But it appears that the action only lies when the child is young enough as to impose on the parents a duty to provide for its support, and is not available when the child is capable of maintaining itself.61 [page 702]

24.13 Although this cause of action is well established,62 it may seriously be questioned whether, like the action for loss of servitium and for loss of consortium, it ought to be abolished. Since the injured child is able to

recover, in his or her own action, both the expense of medical services rendered, and the reasonable cost of visits to aid in recovery,63 the only advantage of the parent bringing a separate action would appear to be that the damages in that claim will not be reduced on account of the child’s contributory negligence. Such an advantage has little claim for continued support, and even that advantage is denied to a parent who sues in South Australia or either of the two territories.64

Rights of action against a parent 24.14 The preceding paragraphs 24.7–24.13 were concerned with the right of a parent to sue for the loss regarded as suffered as a result of acts committed by another in relation to his or her child. This part looks to the converse questions of the liability of a parent either to a third party or to the child when injury is caused by the child or to the child.65 It has already been observed in 7.28 that if a child should cause injury to a third person, the parents may be directly (as opposed to vicariously) liable, jointly with the child, for the injury inflicted, if they have failed to observe the necessary standard of care.66 In this respect, the blood relationship is of little significance, since the same duty to control those under the defendant’s care is owed by an educational67 or prison68 institution to prevent injury to the person or property of a third party.

24.15 But when it is the child itself who is injured, and action is brought against the parents, alleging that they are wholly or partly responsible for the hurt suffered by the child, there are few circumstances in which that action will be maintainable. A combination of judicial developments and statutory changes has resulted in the parent–child relationship, in all its ramifications, being the means of denying the imposition of liability on the parent. If the parent has undertaken some positive course of conduct which exposes the child to a foreseeable risk of injury — such as by driving a motor car with the child as passenger69 or walking with the child along a road70 — the common law disregards [page 703]

the blood relationship and would permit the child to sue its parent. This result is unexceptionable when the injury is caused by the use of a motor vehicle; the driver is compulsorily insured against such liability, and the real defendant in such an action is the third party insurer. But where the injury arises from other causes, that result could have the most untoward effects on the family as a whole. Suppose that a child is walking with his or her parent along a road, and the child is struck by a motor vehicle driven by a third person.71 If the child were to sue the driver of the motor vehicle (in reality, the third party insurer of the vehicle), the driver (or the insurer, exercising its rights of subrogation) would then be entitled to claim contribution from the parent, on account of the latter’s breach of duty to the child. But the parent would not be able to insure against this liability,72 so that not only would part of the loss suffered by the child be transferred from a good loss distributor to a poor one, but also the family as a whole would be the poorer to the extent of the contribution recovered from the parent.73 In order to avoid some of these difficulties, the Insurance Contracts Act 1984 (Cth) s 65 prevents an insurer, in the exercise of its rights of subrogation, from claiming contribution against an uninsured tortfeasor who is in a family or other personal relationship with the insured.

24.16 In circumstances other than those in which the parent has set out on a specific course of conduct, the courts have generally denied the existence of a duty of care owed by the parent to the child. There can be no liability flowing merely from an omission on the part of the parent to exercise such care and control of the child as will be reasonably likely to prevent the child from meeting with injury, whether at its own hands or those of a third party.74 To impose such a duty, it has been said,75 would be ‘a wholly unacceptable intrusion of the law of negligence into family and domestic relationships’. Further, the duty would create insurmountable difficulties in its application, since there are ‘no readily recognisable standards for parental supervision as there are for specific activities such as driving a motor car. Parents differ as widely as human beings themselves in temperament and personality’ and may also differ as widely, and with justification, in their views as to the proper control to exercise over a child.76 And, it has also been remarked: … to have the sword of Damocles duty of care hanging over the parental head at all stages of the young child’s life is a totally unwarranted burden which the law does not impose. If such a burden were to be imposed, then one should ask, for what period during a child’s development is such a duty to be imposed. When does the duty cease?77

_______________ 1.

Abolished by statute in all jurisdictions: see 29.15.

2.

Family Law Act 1975 (Cth) s 120.

3.

Domestic Actions Act 1975 (NZ) s 3.

4.

Wright v Cedzich (1930) 43 CLR 493; Best v Samuel Fox & Co Ltd [1952] AC 716; 2 All ER 394 (HL).

5.

Harris v Grigg [1988] 1 Qd R 514 (FC).

6.

Marx v A-G [1974] 1 NZLR 164 (CA).

7.

Harris v Grigg [1988] 1 Qd R 514 (FC); Foodlands Association Ltd v Mosscrop [1985] WAR 215 at 222–3 per Burt CJ (FC); on actions for purely economic loss caused by negligent acts, see 13.43.

8.

Law Reform (Marital Consortium) Act 1984 (NSW) s 3; Civil Liability Act 2002 (Tas) s 28D; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3; Civil Law (Wrongs) Act 2002 (ACT) s 218; Accident Compensation Act 1972 (NZ) s 5(2); Barlow v Humphrey [1990] 2 NZLR 373.

9.

Administration of Justice Act 1982 (UK) s 2.

10.

BC: Family Relations Act, RSBC 1996, c 128, s 123; Man: Equality of Status Act, RSM 1987, chap E-130, s 1(1)(c); NB: Charter of Rights Compliance Act, SNB 1985, Chap 41, s 4(8); Ont: Dower and Miscellaneous Abolition Act, RSO 1980, Chap 152, s 69(3); PEI: Family Law Reform Act, RSPEI 1974, Cap F-2.1, s 61.1(3); Sask: Equality of Status of Married Persons Act, ss 1984–85–86, Chap E.10.3, s 6; and see the (Newfoundland) Family Law Act, RSN 1990, Chap F-2, s 72, in which the abolition of the action is implied rather than express; Blotnicky v Oliver (1988) 84 NSR (2d) 14; Baker v Pleasant (1989) 89 NSR (2d) 301, in which it has been held at first instance that the discriminatory nature of the rule is contrary to the Canadian Charter of Rights, leading to the abolition of the rule.

11.

Transport Accident Act 1986 (Vic) s 93(1), (1A) and (2).

12.

Cf Scott v Bowyer [1998] 1 VR 207 at 219 (CA) and Doughty v Martino Developments Pty Ltd (2010) 27 VR 499 (CA), discussing the similar action for loss of services: see 20.10.

13.

Motor Accidents (Compensation) Act 1979 (NT) s 5.

14.

Workers Rehabilitation and Compensation Act 1986 (NT) s 52.

15.

Cardakliya v Mt Isa Mines Ltd [1995] 1 Qd R 500 (CA); and see Opperman v Opperman [1975] Qd R 345 (FC); Petricola v Metropolitan Transit Authority (1989) Aust Torts Reports 80-247 (Vic FC), construing a similar phrase in statutes of limitation, on which see further 28.4.

16.

Law Reform Act 1995 (Qld) s 13; Civil Liability Act 1936 (SA) s 65; see CSR Ltd v Thompson (2003) 59 NSWLR 77 (CA); to the same effect is the Domestic Relations Act, RSA 2000, Chap D-14, s 46 (Alberta).

17.

WorkCover Queensland Act 1996 (Qld) s 316; Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273 (CA).

18.

WorkCover Queensland Amendment Act 2001 (Qld) s 38.

19.

Civil Liability Act 2003 (Qld) s 58.

20.

Curran v Young (1965) 112 CLR 99.

21.

In South Australia and the Northern Territory, the contributory negligence legislation requires the proportionate reduction of the claim both for personal injuries and for loss of consortium if the injured spouse was partly at fault: Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7(4); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 18; Meadows v Maloney (1972) 4 SASR 567; Hasaganic v Minister of Education (1973) 5 SASR 554.

22.

Moodie v Ing [1966] Qd R 229; Anderson v Blazeley [1966] Tas SR 281; Locher v Turner (1995) Aust Torts Reports 81-336 (Qld SC). Aliter if the injured spouse were, at the time of the accident, acting as the agent of the other: Curran v Young (1965) 112 CLR 99 at 101 per Barwick CJ.

23.

State Rail Authority (NSW) v Sharp [1981] 1 NSWLR 240 (CA).

24.

At common law: Baker v Bolton (1808) 1 Camp 493; 170 ER 1033; Admiralty Commrs v SS Amerika [1917] AC 38 at 55 per Lord Sumner (HL); Locher v Turner (1995) Aust Torts Reports 81-336 (Qld SC); the statutory right of action allowed to wives in Qld and SA (see fn 16 above) is no more extensive: Sloan v Kirby (1979) 20 SASR 263 at 275–8 per White J, but the Compensation (Fatal Injuries) Act 1974 (NT) s 10(3)(c), permits the award of damages for (inter alia) loss of the consortium of a husband or wife (whether de jure or de facto: Australian Telecommunications Commn v Parsons (1985) 59 ALR 535 (Fed Ct, FC)) after the death of the other spouse, although if that other spouse was merely injured, only a de jure husband has an action for loss of consortium (!).

25.

Parker v Dzundza [1979] Qd R 55.

26.

See Baxt (ed), An Annual Survey of Law 1979, 1980, pp 213–14.

27.

See generally Toohey v Hollier (1955) 92 CLR 618.

28.

CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1, overruling Sturch v Willmott [1997] 2 Qd R 310 (CA) and Sullivan v Gordon (1999) 47 NSWLR 319 (CA); see further 11.19.

29.

McIntyre v Miller (1980) 30 ACTR 8; Hodges v Frost (1984) 53 ALR 373 (Fed Ct, FC); Johnson v Nationwide Field Catering Pty Ltd [1992] 2 Qd R 494.

30.

See the legislation cited in fn 21 above.

31.

Norman v Sutton (1989) 9 MVR 525 at 532–3 (NSWCA).

32.

Thorne v Strofeld [1997] 1 Qd R 540 (CA).

33.

Toohey v Hollier (1955) 92 CLR 618 at 628.

34.

Andrewartha v Andrewartha (1987) 44 SASR 1 (FC); Marinis v Bennett (1987) 140 LSJS 400 at 405 per White J (FC); Lobb v Ellis (1989) 10 MVR 88 (SAFC).

35.

Keally v Jones [1979] 1 NSWLR 723 at 750 per Samuels JA (CA); Norman v Sutton (1989) 9 MVR 525 at 535–6 (NSWCA).

36.

Johnson v Kelemic (1979) FLC 90-657 at 78,491 per Reynolds JA, at 78,493 per Samuels JA (NSWCA).

37.

Toohey v Hollier (1955) 92 CLR 618 at 624; Pickering v Ready Mixed Concrete (Qld) Pty Ltd [1967] QWN 45.

38.

Civil Liability Act 1936 (SA) s 68; Civil Liability Act 2002 (Tas) s 28E; Civil Law (Wrongs) Act 2002 (ACT) s 210; Domestic Actions Act 1975 (NZ) s 4(1); Law Reform (Miscellaneous Provisions) Act 1970 (UK) s 5; Administration of Justice Act 1982 (UK) s 2.

39.

Alta: Charter Omnibus Act, SA 1985, Chap 15, s 43; BC: Family Relations Act, RSBC 1996, c

128, s 123; Man: Equality of Status Act, RSM 1987, c E130, s 2(1); NB: Charter of Rights (Compliance) Act SNB 1985, Chap 41, s 4(9); Ont: Dower and Miscellaneous Abolition Act, RSO 1980, Chap 152, s 69(4); PEI: Family Law Reform Act, RSPEI 1974, Cap F-2.1, s 61.1(4); Sask: Children’s Law Act, ss 1990–91, c-C 8.1, s 61(2). 40.

Holdsworth, History of English Law, Vol VIII, 2nd ed, 1937, pp 428-9.

41.

Brownlee v MacMillan [1940] AC 802 at 809; 3 All ER 384 at 387 (PC). Thus, no action lies for the loss of the consortium of a child: F v Wirral Metropolitan Borough Council [1991] Fam 69 at 117; 2 All ER 648 at 685 per Stuart-Smith LJ (CA).

42.

But see Manvell v Thomson (1826) 2 C & P 303; 172 ER 137, in which the daughter’s emotional distress at her seduction, though unaccompanied by pregnancy, led to a sufficient inability on her part to provide domestic service to found an action.

43.

See the note by Sergeant Manning to Grinnellv Wells (1844) 7 Man & G 1033 at 1044; 135 ER 419 at 424.

44.

Wrongs Act 1958 (Vic) s 14; Evidence Act 1906 (WA) s 49; Brankstone v Cooper (1941) 43 WALR 51.

45.

Brankstone v Cooper (1941) 43 WALR 51 at 54 per Dwyer J.

46.

Beetham v James [1937] 1 KB 527 at 533; 1 All ER 580 at 584 per Atkinson J.

47.

Lough v Ward [1945] 2 All ER 338; but see Taylor v Evatt (1943) 43 SR (NSW) 367 (FC), in which an action for enticement and harbouring was brought against child welfare authorities for the detention of children allegedly in breach of the relevant legislation.

48.

But not necessarily so, because, eg, the daughter may have been raped rather than seduced: Mattouk v Massad [1943] AC 588; 2 All ER 517 (PC).

49.

Discussed in 20.8.

50.

Flemington v Smithers (1826) 2 C & P 292; 172 ER 131; Chapman v McDonald [1969] IR 188.

51.

Attorney-General (NSW) v Perpetual Trustee Co Ltd [1955] AC 457 at 486; 1 All ER 846 at 855–6 (PC).

52.

NZ: Accident Compensation Amendment Act (No 2) 1973, inserting a new s 5(2) in the Accident Compensation Act 1972; UK: Administration of Justice Act 1982 s 2.

53.

See Transport Accident Act 1986 (Vic) s 93(1), (1A) and (2); Motor Accidents (Compensation) Act 1979 (NT) s 5 and Workers Rehabilitation and Compensation Act 1986 (NT) s 52 and the discussion of the effect of those provisions in 24.3.

54.

Jones v Brown (1794) 1 Esp 216; 170 ER 334.

55.

Hall v Hollander (1825) 4 B & C 660; 107 ER 1206.

56.

Howard v Loney [1956] Tas SR 57; Lloyd v Lewis [1963] VR 277; Partridge v Briggs (SC(Vic), 2 June 1988, Gobbo J, unreported).

57.

Howard v Loney and Lloyd v Lewis, fn 56 above. On the independence, in this sense, of the employer’s action for loss of servitium and a spouse’s claim for loss of consortium, see 20.21 and 24.4 respectively.

58.

See Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7; Civil Law (Wrongs) Act 2002 (ACT) s 104; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 18 and the discussion of the SA and NT legislation in 24.4, fn 21.

59.

Lloyd v Lewis [1963] VR 277; cf Dixon v Bell (1816) 1 Stark 287; 171 ER 475 and Barnes v

Pooley (1935) 51 TLR 391, in which the recovery by a father of medical expenses incurred on behalf of his child was incidental to the father’s recovery for loss of services. 60.

Timmins v Webb [1964] SASR 250; Cook v Wright [1967] NZLR 1034.

61.

Willcock v Andrews [1965] WAR 129. Query whether the action is affected by the Family Law Act 1975 (Cth) s 66B, which seeks to legislate on the duty of parents to maintain their children.

62.

Apart from the cases previously cited, this cause of action was referred to without disapproval in Griffiths v Kerkemeyer (1977) 139 CLR 161 at 177; 15 ALR 387 at 400 per Stephen J; but cf Veivers v Connolly [1995] 2 Qd R 326, in which de Jersey J (at 331–2), without reference to the above decisions, awarded damages to the mother of a child injured by the defendant’s negligence, on the basis of the principles stated in Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227, as to which see 13.45.

63.

In Lloyd v Lewis [1963] VR 277 at 279 per Pape J and Cook v Wright [1967] NZLR 1034 at 1035 per Wild CJ, recovery by the child was said to be the course usually followed.

64.

See the legislation cited in fn 58 above.

65.

Since virtually all of the cases on this aspect of the parent–child relationship are concerned with personal injury, the principles are of little relevance in New Zealand by reason of the Accident Compensation Act 2001 (NZ): see 12.40.

66.

See, eg, Smith v Leurs (1945) 70 CLR 256.

67.

See, eg, Carmarthenshire County Council v Lewis [1955] AC 549; 1 All ER 565 (HL); Geyer v Downs (1977) 138 CLR 91; 17 ALR 408.

68.

See, eg, Dorset Yacht Co Ltd v Home Office [1970] AC 1004; 2 All ER 294 (HL); Dixon v Western Australia [1974] WAR 65; L v Commonwealth (1976) 10 ALR 269 (NTSC).

69.

See, eg, Dolbel v Dolbel (1962) 63 SR (NSW) 758 (FC).

70.

McCallion v Dodd [1966] NZLR 710 (CA).

71.

As was the case in McCallion v Dodd [1966] NZLR 710 (CA).

72.

In Robertson v Swincer (1989) 52 SASR 356 at 361 (FC), King CJ was prepared to take judicial notice of the fact that public liability policies almost invariably exclude indemnity for members of the insured’s family residing with him or her.

73.

See also Rogers v Rawlings [1969] Qd R 262 at 273 per Hart J (FC).

74.

Hahn v Conley (1971) 126 CLR 276, as explained in Posthuma v Campbell (1984) 37 SASR 321 (FC) and Robertson v Swincer (1989) 52 SASR 356 (FC); see also Towart v Adler (1989) 52 SASR 373 (FC), but cf Anderson v Smith (1990) 101 FLR 34 at 46–7 per Nader J (NTSC) (grandmother, standing in loco parentis on the relevant day, held to owe a duty to her granddaughter to prevent the latter from drowning in swimming pool).

75.

Posthuma v Campbell (1984) 37 SASR 321 at 329 per Jacobs J (FC); see also, to the same effect, Dobson v Dobson (1999) 174 DLR (4th) 1 at [23] per Cory J (SCC).

76.

Robertson v Swincer (1989) 52 SASR 356 at 361 per King CJ (FC).

77.

Ibid at 369 per Legoe J, a view concurred in by Millhouse J at 371–2.

[page 704]

CHAPTER 25 Misuse of Process

25.1 In general, and subject to the limitations to be discussed in this chapter, all of those involved in the judicial process are immune from liability for anything said, written or done in the course of proceedings or immediately preparatory to those proceedings. The reasons for this immunity are that ‘it promotes resort to the courts for the resolution of justiciable issues; and it protects the judgments of the courts from collateral attack’.1 The protection is afforded to witnesses,2 (including the witness’s employer,3) litigants,4 judges5 and advocates6 in relation to their conduct in court, however improper or malicious that might have been, as well as to juries7 in respect of their verdicts. It also applies to statements made by a party in initiating process8 and to those of a potential witness made before the commencement of proceedings if they are closely linked to the initiation of either a criminal9 or a civil10 suit or proceedings relating to a bankruptcy.11 However, the immunity does not extend to the process of investigation which necessarily precedes the preparation of evidence,12 nor does it protect the fabrication of evidence, as such conduct is not sufficiently closely connected with the judicial [page 705] process.13 This immunity also does not apply to bodies the functions of which are administrative rather than judicial in character.14 In view of the purpose lying behind this immunity, it cannot protect one

who would misuse the judicial process.15 A person who engages that process is subject to those restraints which are designed to ensure that it serves the ends of justice.16 The relevant restraints are the actions for malicious prosecution, collateral abuse of process, misfeasance in public office, maintenance and champerty. Each of those torts will be considered in turn.

Malicious Prosecution 25.2

The tort of malicious prosecution is committed when a person maliciously and without reasonable and probable cause initiates judicial proceedings against another which terminate in favour of that other and which result in damage to the latter’s reputation, person, freedom or property. It seeks to balance the plaintiff’s right not to have his or her reputation sullied by being the subject of groundless proceedings with the public benefit of ensuring that offenders are brought to book. Although for much of its history the tort has been very narrowly confined,17 there are a few signs that the courts have more recently been prepared to take a more expansive view of the limits of liability.18 The function of the tort of malicious prosecution in safeguarding the plaintiff’s interest in freedom from unjustifiable litigation, involving as it does the public standing of the plaintiff in the community, comes very close to that of defamation, namely, the protection of reputation. The difference is that the institution of proceedings will sometimes cause pecuniary loss or loss of personal liberty without damaging reputation. When that happens, there may be malicious prosecution but there cannot be defamation. It is also necessary to distinguish this branch of the law from false imprisonment. It is of the essence of false imprisonment that the initial act in itself is wrongful, for example, when an arrest is made upon a warrant which is in fact invalid. Malicious prosecution presupposes that the proper procedural formalities have been carried out, and is concerned with the purposes for which they were used. Obviously, false imprisonment does not cover all the ground traversed by malicious prosecution, because interference with freedom of movement is required in false imprisonment. In order to succeed in an action for malicious prosecution, the plaintiff must prove: (1) that the defendant had instigated the proceedings; (2) that those proceedings terminated in the plaintiff’s favour, if they were of such a

nature as to permit of that [page 706] outcome; (3) that the defendant’s conduct was without reasonable and probable cause; (4) that the defendant was also actuated by malice; and (5) that the plaintiff has suffered one of three relevant kinds of damage. Each of these elements will be considered in turn.

Institution of proceedings 25.3 This tort is almost exclusively concerned with the false and malicious initiation of criminal proceedings,19 which are generally commenced by the police. Obviously, if a private citizen lays an information20 or signs the charge sheet21 he or she will be the proper defendant to this action.22 When, on the other hand, process is formally commenced by officers of the state, the issue is whether the person who is sued for malicious prosecution was ‘actively instrumental’ in having the proceedings commenced,23 an issue which is not necessarily easy to determine. It is clear that, where the defendant merely states the facts as he or she believes them to a police officer or to a judicial officer, even if this amounts to the provision of apparently damning evidence, there is no responsibility for any proceedings which might ensue as a result of action taken by either of those officers on their own initiative.24 The defendant in such cases is regarded merely as having ‘set rolling … a stone of suspicion’ against the plaintiff25 which, of itself, is insufficient to label the former the prosecutor. The situation is different when the defendant, in providing information to the police, makes out such a case as to lead to the conclusion that the police were not able to exercise any independent discretion or judgment in setting the prosecution in motion. This will particularly be so when the facts on which the charge is based are peculiarly within the knowledge of the defendant, such as a claim of assault.26 The mere fact that the police have acted on information which the defendant knew to be false is unlikely to be sufficient;27 but an action is more likely to lie where, for instance, the

defendant has supported his or her false statements with equally fraudulent witnesses,28 or has provided not only information but also counsel and solicitors to conduct the prosecution.29 [page 707] There is a natural reluctance on the part of the courts to be too ready to brand as a prosecutor one who provides information to the police, lest members of the public be deterred from supporting the police in the detection and prevention of crime.30 But, should the occasion demand, this reluctance must be balanced by a consideration of whether adequate remedies are available, not only to punish those who give false statements to the police, but also to compensate the accused for the injury suffered.31

25.4 Liability may also be imposed on the basis of the defendant’s conduct after the proceedings have been instituted. Even though, at the initial stage, the defendant may have had a bona fide and reasonable belief in the guilt of the accused, if facts come to light during the proceedings which show that they are not justified, any further steps taken by the defendant to continue the prosecution will be sufficient to have him or her treated as the prosecutor.32 But merely to remain silent after such facts come to light is no breach of duty.33 The legal adviser of a litigant may be deemed to be responsible for the prosecution where the adviser does more than merely counsel the litigant in good faith.34 It is clear, too, that a corporation may be vicariously liable for the institution of a prosecution by any duly authorised agent, acting within the scope of authority,35 if the circumstances are such that an action in malicious prosecution would lie against the agent personally.36 The necessary state of mind of the corporation will be deemed to exist if it existed in the agent who was responsible for the act, whether that person directed the act or, having a discretion in the matter, performed it.37 The time at which proceedings are regarded as having been instituted for these purposes is when the defendant has done all that lies in his or her power to launch the action against the accused, even though no summons or warrant for arrest has been issued or will be issued.38 The main purpose of the tort

being to protect the reputation of the accused, its elements must be regarded as fulfilled as soon as damage to the plaintiff results from the defendant’s actions.39

Favourable termination of proceedings 25.5 The second element of this tort which it is incumbent on the plaintiff to prove is that the proceedings instituted against him or her have terminated in favour of the plaintiff, so long as they were of such a nature as to permit of that outcome. [page 708] At least three reasons have been given for this requirement.40 On some occasions it is said that otherwise the propriety of an earlier adjudication might be drawn into question collaterally, involving, in effect, a retrial of the merits.41 Alternatively, the requirement is cited as an instance of a general rule which prevents imputations being made in one proceeding against the justice of another pending action or of another judicial determination still standing.42 The third reason is that only where proceedings have finally terminated in favour of the plaintiff can they be shown to be without foundation.43 Whatever reason might be ascribed to this element of the tort, it is generally not necessary that the plaintiff prove that he or she was innocent.44 The requirement for a favourable termination will be satisfied even though the plaintiff has been convicted of a lesser offence45 or has had the conviction quashed on appeal46 or has been acquitted47 albeit on a technicality, such as a defect in the indictment,48 or on the ground that the prosecution had engaged in entrapment.49 The plaintiff may also satisfy this requirement on proof that the defendant has discontinued the proceedings50 for, as was explained in Van Heeren v Cooper,51 where a charge of demanding money with menaces was withdrawn, as the result of a compromise agreement reached between the prosecutor and the accused, while the withdrawal may not have operated as a bar to any other proceedings on the same matter, the initial proceedings had ended. However, although the entry of a nolle prosequi52 by the Attorney-

General terminates those proceedings in favour of the accused,53 the High Court held, in Davis v Gell,54 that in an action in malicious prosecution it is nevertheless necessary for the plaintiff to prove his or her innocence.55 As the law [page 709] currently stands in Australia,56 it is not open to the defendant to attempt to establish the guilt of the plaintiff as a defence to the action for malicious prosecution.57

25.6 Conversely, so long as a conviction against the plaintiff stands, an action for malicious prosecution is not maintainable.58 And the fact that no appeal is available against that decision makes no difference.59 But an unreversed conviction is not the only bar to the action in tort. The earlier proceedings will have terminated adversely to the plaintiff if a finding of guilt is made, even though, by reason of matters such as the plaintiff’s previous good character, no conviction is recorded.60 And, in Bouvy v Count de Courte,61 no action lay where extradition proceedings had resulted in the handing over of the plaintiff to the authorities of a foreign state after the refusal of an application for a writ of habeas corpus.62 Similarly, if a judgment is still recorded in a foreign country against the plaintiff, there is no basis for an action in malicious prosecution against the instigator of those proceedings.63 The plaintiff needs to show a favourable outcome of the earlier proceedings only when they were of such a kind as to permit of that result. This requirement is consequently waived in relation to ex parte orders of the court including search warrants,64 writs of execution,65 and probably writs of capias.66

Absence of reasonable and probable cause 25.7 Because the tort of malicious prosecution runs counter both to the policy of freedom to prosecute suspected criminals and to the interest in bringing litigation to a close, it is not regarded with favour by the judiciary.67

This adverse judicial attitude is reflected particularly in the development of the requirement that there must be an absence of reasonable and probable cause. The major hurdle the plaintiff must surmount is that of proving a negative — a burden which is not discharged merely by proving malice on the part of the [page 710] defendant.68 Nor is it one with which the court will assist by ordering the defendant to give particulars of the grounds on which he or she prosecuted.69

Honest belief 25.8 The classic interpretation of the term ‘reasonable and probable cause’ in the context of malicious prosecution is that of Hawkins J in Hicks v Faulkner70 who said: I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

As the definition indicates, the question whether the defendant had a genuine belief that the proceedings were justified is central to the issue of reasonable and probable cause. This belief must be tested against both subjective and objective factors. On the one hand, one must ask what the prosecutor actually thought of the material then available to him or her, and on the other hand, an objective assessment must be made of that material, to see whether it would have warranted commencement of the proceedings. Otherwise, as the High Court observed in A v New South Wales:71 [t]o ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.72

Functions of judge and jury 25.9 In those jurisdictions in which a tort action may be heard with a jury,73 it is accepted74 that it is for the judge alone to determine whether there is reasonable and probable cause, even though this is a question of fact and not of law. That is to say, in the event that evidence is placed before the court as to the nature of the whole of the information in the possession of the defendant at the time of prosecuting, it is for the judge and not for the jury to determine whether it was reasonable for the [page 711] defendant to have believed in its accuracy.75 Likewise, it is the function of the judge to determine whether a person of ordinary prudence and caution would have been justified in believing that the plaintiff was probably guilty.76 At the same time, however, it falls to the jury to determine any disputed and relevant issues of fact. Where any doubt exists as to the basis of fact upon which the defendant acted, such as questions as to whether documents were really seen by him or her or statements were really heard by him or her, these doubts must be resolved by the jury.77 Similarly, where evidence is given by the plaintiff (as the party on whom the onus in this regard rests) of any fact or facts which, either inherently or coupled with other matters proved in evidence, would permit the inference that the defendant did not believe in the plaintiff’s guilt, it is for the jury to say whether it has been proved to their satisfaction that the defendant did not believe in the plaintiff’s guilt.78

25.10 The trouble experienced in splitting the respective functions of judge and jury in consequence of this rule accounts for most of the complexities of this tort. There is the ever-present danger that the questions addressed to the jury will be so general that the ultimate question left to the judge of reasonable cause is instead improperly decided by the jury.79 In conducting the trial the judge has two alternatives. The first is to direct the jury that, if they find the disputed facts in favour of one side or the other, the judge’s opinion as to reasonable and probable cause will differ accordingly, leaving it to the jury to find a general verdict on these hypothetical questions. This

method should be reserved for straightforward situations. The alternative — and this is possibly the better course, particularly where the facts are complex — is to direct the jury to settle the facts in dispute, whereupon the judge decides, upon the whole case, whether there is reasonable and probable cause.80 Even if the latter alternative is adopted, care must be taken to frame questions in such a way ‘as not to transfer to the jury the determination of the ultimate issue which it is the province of the court to decide’.81 So, any question put to the jury as to the defendant’s belief must be formulated precisely and should not refer to reasonable cause.82

Discharging the onus 25.11 Merely to prove that the defendant had available information which might or might not have led a reasonable person to form an opinion that the plaintiff [page 712] was not guilty is not evidence that the defendant did not believe the plaintiff to be guilty. Moreover, it is incumbent on the plaintiff to adduce evidence from which an inference may be drawn as to what the defendant’s belief actually was: it is not sufficient to provide evidence from which a guess may be made as to what it was.83 And, for the plaintiff to leave the matter in such a way that the presence or absence of reasonable cause is equally consistent with the facts as presented, will not discharge the onus.84 Nor is it sufficient merely to supply evidence of reasons for non-belief; there must also be evidence that these reasons were in fact operative in the sense that they were relied upon by the defendant.85 It is impossible to enumerate all the factors which may be relevant in deciding whether there was reasonable and probable cause but pivotal to this question is the state of mind of the defendant at the time the proceedings were instituted.86 Also relevant is the consideration whether the defendant, however honest the act, had taken reasonable care in making sufficient inquiry before deciding to prosecute.87 It is not sufficient to have acted upon mere surmise.88 That the defendant has acted on the advice of counsel will

not invariably be regarded as evidence of reasonable and probable cause, although seeking such advice may be a factor to be taken into account along with other relevant considerations.89 Acting on the advice of the police90 or a magistrate91 will not, it seems, protect the defendant.

25.12 Despite some early authority92 which suggests that, when the court is considering what was a defendant’s information and belief, the fact that he or she acted on a mistaken view of the law will not assist, public policy supports an opposite view,93 at least where the mistake is not of ‘so palpable and egregious a character as to show malice [and absence of reasonable cause] on the face of it’.94 Clearly, a plaintiff [page 713] cannot treat a mistake on a difficult and, perhaps, highly technical legal point as evidence of lack of reasonable cause95 for, as the court stated in Barry v Tully:96 … to hold a man liable [merely] for not putting a correct construction upon, or being aware of the provisions of, an Act of Parliament, appears … to be wrong in point of morals, and contrary to the spirit in which the law should be administered.

Where an indictment has been laid charging the plaintiff with several different counts it is no defence to an action for malicious prosecution in respect of one of the counts to prove that there was reasonable and probable cause for prosecuting in respect of the others, and evidence directed to this purpose only is inadmissible.97 Thus, in A v New South Wales,98 the appellant had been charged with offences against two children. The High Court upheld the trial judge’s conclusion that the prosecutor had had reasonable and proper cause to commence proceedings in relation to one only of the children.

Malice 25.13 Quite apart from the need to establish the absence of reasonable and probable cause, the plaintiff in any action for malicious prosecution is also obliged to prove that the defendant was actuated by malice.99

Meaning of malice 25.14 Malice in this context covers not only spite or ill-will towards the plaintiff, but also some improper motive, that is ‘some motive other than that of bringing a wrongdoer to justice’.100 The question is not whether the defendant was angry at the crime the plaintiff is alleged to have committed nor even whether he or she was inspired by hatred,101 but whether the defendant, in instigating the prosecution, had a purpose other than that of doing what he or she bona fide believed to be right in the interests of justice.102 There is malice, for instance, if the defendant uses the prosecution as a means of blackmail or any other form of coercion or as a means of retribution at the plaintiff for previous activities.103 Malice will be present where a landlord charges a tenant with larceny with the object of evicting the plaintiff tenant from the house;104 or where a prosecution was continued in order [page 714] not to undermine the credibility of a police informant,105 or where the purpose of a prosecution for child abuse was to succumb to pressure from officers of the Child Protection Enforcement Agency.106 It is likewise malicious to charge a company director with conspiracy in order to effect a change of control of the company, with the object of getting the company to dispose of its business,107 or for shareholders to present a winding up petition with the collateral motive of forcing the company’s board to negotiate on proposals by them to gain control of the company.108 In Rapley v Rapley109 a son who took proceedings against his mother under the Lunacy Act, charging her with being a person deemed to be insane wandering at large, was held not to have acted with malice because his only motive in so doing was to protect her by preventing her, in her own interests, from disposing of her property. In arriving at this decision the court emphasised the fact that, for malice to exist, the motive must have ‘some wrong or sinister’ aspect, which was entirely lacking in this instance.

Malice and reasonable and probable cause

25.15 The judge decides whether there is any evidence of malice,110 but having done so, it thereafter falls to the jury to determine whether there is malice in fact.111 Often a jury will, if there is clear evidence of the absence of reasonable and probable cause, infer malice, but they are not bound to do so. Indeed, there are situations where it would be wrong to do so, as, for example, where any such inference has been rebutted by other countervailing evidence.112 So, in Rapley’s case,113 although it was clear that the defendant on his own admission had gone beyond the bounds of accuracy in swearing that his mother was wandering at large, and thus lacked reasonable and probable cause, he was nevertheless held not liable. Conversely, a plaintiff who proves malice but not want of reasonable and probable cause still fails.114 Should a tenant, therefore, establish that the landlord has instituted proceedings for larceny of the landlord’s fixtures, with the object of determining the tenancy, the tenant’s action in this tort will still fail if absence of reasonable and probable cause is not also proved by him or her.115

Limited categories of damage 25.16 Since the action for malicious prosecution developed from the action on the case, actual damage is an essential element of the tort.116 But, while it might have been expected that this requirement would be satisfied whenever the plaintiff proved that [page 715] some harm had been suffered as a non-remote consequence of the wrong, this is not so. More than three hundred years ago, Holt CJ, delivering judgment in Savile v Roberts,117 laid down that the proceedings must be such as to inflict one of the following: 1. … damage to a man’s fame, as if the matter whereof he is accused be scandalous … 2. … such [damages] as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty … 3. Damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused.

The reason for such a restrictive formulation was the realisation, at the end of

the seventeenth century, that the action for malicious prosecution had become too popular and had to be curtailed in the interests of the proper administration of the law.118 And, although Lord Holt’s judgment does not expressly so limit the matter,119 it has subsequently been accepted that the original proceedings must necessarily and naturally entail one or other of the three enumerated types of damage.120 But once damage under any of the three heads is proved, the award of damages is at large, subject only to the condition that they must not be grossly disproportionate to the injury sustained.121 Consequential economic and property loss is no doubt recoverable, if not too remote, and the award may take account of any mental distress suffered by reason of the prosecution.122 Exemplary damages may also be awarded where appropriate. It remains to consider the three categories of damage.

Damage to the plaintiff’s fame 25.17 When this category was formulated by Holt CJ, it meant no more than that the plaintiff had been falsely prosecuted for a crime which, had an accusation thereof been made orally, would have amounted to slander actionable per se.123 Prior to the abolition of the separate tort of slander, and its absorption into the tort of defamation (see 17.2) the circumstances in which that tort was so actionable increased to such an extent that the spoken imputation of the commission of any crime punishable by imprisonment could have been sued on without proof of special damage. However, the category of harm necessary to found an action for malicious prosecution did not follow suit.124 Rather, it remains confined to those crimes, the only result of a conviction for which would be to diminish the reputation of the accused. Included within that category is not only a prosecution for indecent exposure125 but also one for travelling on public transport without paying the fare, for that imputes cheating;126 [page 716] but excluded from that category is a prosecution for failing to comply with a local government notice requiring the abatement of a nuisance, as the person

charged may not have been responsible for the creation of that state of affairs.127 Parallel to the link between malicious prosecution and the slanderous imputation of the commission of a crime was that with slander as to a person’s trade or business. Just as an oral statement which was calculated to disparage a person in his or her trade was actionable as slander without proof of special damage,128 so too the malicious presentation of a bankruptcy petition relating to a trader has long been accepted as necessarily affecting the trader’s reputation,129 and hence within this category of harm.130 That principle has been extended to include a petition to wind up a solvent company,131 but until relatively recently did not include any other form of civil proceeding. One reason, at least,132 for denying that other forms of civil action would necessarily harm the reputation of the person against whom they were brought was that the judgment in that person’s favour would immediately dispel any suspicions that might have been aroused by their commencement.133 In the application of that view, it has been held that no action lies for maliciously charging a person with adultery in a divorce suit,134 nor with maliciously alleging a failure to support one’s illegitimate child.135 The action in malicious prosecution has even been denied in cases where an action in debt has been falsely and maliciously commenced against a trader and received a measure of publicity.136

25.18 But the rationale for this exclusion of liability has been called into question. The Appeal Division in Victoria, in Little v Law Institute of Victoria (No 3),137 observed that modern courtroom proceedings, as well as methods of communication and publication of information, differ markedly from those prevailing when the above principles had been developed. In modern society the quick and wide dissemination of publicity relating to litigation, both pending and current, by radio, television and news print might injure the fair fame of an accused person who subsequently was found to be not guilty, or of a defendant who later has had judgment entered against him set aside on appeal.138

[page 717] In the result, the court held that the issue of a summons to enjoin a solicitor from practising without a practising certificate might well lead to damage to

the solicitor’s reputation, particularly in view of the (not uncommon) lengthy delays between the issue of process and the determination in his or her favour of those proceedings. This development is to be welcomed, but with a measure of caution. For one thing, it must be recognised that it is a very clear development in the law. Whereas Holt CJ, in Savile v Roberts, considered that damage to the plaintiff’s fair fame must be a necessary consequence of the original, and maliciously instigated, proceedings, the Appeal Division in Little’s case regarded it as sufficient that the plaintiff would be able to prove, when the matter came to trial, that the earlier proceedings had in fact irrevocably harmed his or her reputation.139 And for another thing, to allow that the malicious prosecution of civil proceedings would bring the action within the first type of damage referred to in Savile v Roberts would put more emphasis on the applicability, in the twenty-first century, of the limitation imposed by the third of those types of damage, which will be discussed shortly.

Damage to the plaintiff’s person 25.19 This, the second of the categories of harm listed in Savile v Roberts which may found an action, is subject to less controversy than the first and the third. It appears to be accepted140 that the plaintiff must show that, if a criminal prosecution has been maliciously commenced against him or her, the penalty for the offence includes imprisonment; it is not sufficient if the proceedings might ultimately result in a loss of liberty for such a reason as non-payment of a fine.141

Damage to the plaintiff’s property 25.20 The way in which Holt CJ expressed himself in Savile v Roberts to describe this category of harm was to refer to ‘Damage to a man’s property, as where he is forced to expend his money on necessary charges, to acquit himself of the crime of which he is accused’.142 Applying this test, there is now no doubt that a plaintiff brings the case within this category on showing that expenses have been necessarily incurred in defending criminal proceedings, even where the accused has been awarded costs in that action, since that award is not intended to recompense the accused for the expense in

fact involved.143 It has also been held that proceedings for malicious prosecution may be brought when the original action was instituted in a civil court having no jurisdiction to award costs,144 such as a small claims court.

25.21 But the House of Lords has held, in Gregory v Portsmouth City Council,145 that the action is not available in respect of the malicious instigation of disciplinary proceedings. It has also been decided146 that one against whom civil proceedings are [page 718] maliciously instituted cannot bring any loss within this category, and so is debarred from suing for malicious prosecution. The reasoning given, in decisions dating from the latter years of the nineteenth century, was that the costs awarded in favour of the successful party to a civil action are a complete indemnity for all expenses reasonably undertaken, and hence no loss has been suffered. It was because of the inapplicability of this limitation in the United States — where costs are not awarded to a successful party — that the law in that country was readily able to expand the tort to include the malicious instigation of civil proceedings.147 But the justification, that the award of costs provides a complete indemnity, disregards the very real, and often substantial, difference between party and party costs and solicitor and client costs. It is therefore not surprising that in more recent times this limitation has been criticised in New Zealand, and said to be in need of review,148 although the House of Lords, in Gregory’s case,149 considered that any injustice wrought by denying the expansion of the tort beyond the malicious commencement of criminal proceedings could be remedied by the ‘pragmatic growth’ of other aspects of the law of torts, ‘in response to true necessities demonstrated by experience’.150 In the same pragmatic vein, it has also been pointed out151 that the limitation of this tort to the institution of criminal proceedings serves as an indirect means of preventing a proliferation of civil actions. It remains to be seen to what extent any of these views would predominate if the decision in Little v Law Institute of Victoria (No 3)152 were to be accepted in other jurisdictions.

Collateral Abuse of Process

25.22 There is a wide range of circumstances in which a superior court has an inherent jurisdiction to stay any adjudicative proceedings because they are an abuse of process. Indeed, the power to stay proceedings on that ground ‘extends to all those categories of cases in which the processes and procedures of the court … may be converted into instruments of injustice or unfairness’.153 The tort which is concerned to provide a remedy when the curial process has been abused must, however, be clearly distinguished from that judicial power. It is partly in order to emphasise that difference that it is titled collateral abuse of process.154 The tort is committed whenever a legal process, applied in its proper form, is used as the means of carrying out a collateral and unrelated purpose which would otherwise not have been available, thereby causing damage to the plaintiff. It is in the putting of a proper process to an improper end that the abuse lies. It is a [page 719] tort which, after a long period of quiescence, has recently received a considerable amount of judicial attention. This species of wrong was first sued on in Grainger v Hill.155 The plaintiff had mortgaged his ship to the defendant to secure a loan. Before the loan was due, the defendant took proceedings for its repayment and, in a procedure ancillary thereto, obtained a writ of capias to arrest the plaintiff. The defendant then used that writ to extort from the plaintiff the ship’s register, without which the vessel could not put to sea. On subsequently obtaining the return of the register, the plaintiff successfully sued for the loss he had suffered by being unable to prosecute four voyages. The tort has also been recognised, although not yet applied, by the High Court of Australia. In Varawa v Howard Smith Co Ltd,156 the plaintiff alleged that the defendant had commenced proceedings against him for breach of contract and, by virtue of the commencement of that action, had procured the issue of a writ of capias by which to extort from the plaintiff money to which the defendant was not entitled. The allegations were held not to have been proved, but each member of the court acknowledged that had the plaintiff been able to sustain his allegations he would have made out a good cause of action in collateral

abuse of process.157 And, in Dowling v Colonial Mutual Life Assurance Society Ltd,158 the respondent society had bought a debt owing by the appellant and commenced bankruptcy proceedings. The bankruptcy and subsequent sequestration was said by the appellant to be for the purpose of conducting an examination to ascertain the identity of the person behind the appellant’s publication of defamatory material. Although a majority of the court concluded that there had been no abuse of process, Isaacs J remarked159 that: … if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process.

25.23 This tort is clearly quite distinct from that of malicious prosecution. As was made clear from those cases which established this form of liability, a plaintiff arguing collateral abuse of process does not have to show that any earlier proceedings taken against him or her by the defendant have terminated (whether favourably or not)160 and, as a corollary, the tort does not require proof that the defendant lacked a reasonable and probable cause for bringing proceedings against the plaintiff.161 And, since the tort was seen as filling a lacuna in the law, it would clearly be going too far to allow a plaintiff to claim that there had been a collateral abuse of process by showing no more than the defendant’s malice in setting the law in motion. Indeed, as the High Court has more recently reiterated, to commence proceedings for an unworthy or reprehensible motive will not amount to the commission of this tort.162 It is therefore difficult to support the conclusion that to commence winding-up [page 720] proceedings against a company, with the intention of thereby forcing its directors to negotiate the sale of the company to the instigators of those proceedings, constitutes the commission of this tort.163 To stress the point made by Isaacs J in Dowling’s case, the issue might have been different had the instigators of the proceedings first threatened the directors with the winding-up, should they not open discussions on the sale of the company.164 Or if, at the institution of proceedings, no more appears than the improper

motive of their instigator, collateral abuse of process might be shown on proof that the proceedings had subsequently been perverted for a wholly extraneous purpose.165

25.24 The tort of collateral abuse of process must also be distinguished from those circumstances where public policy demands immunity from civil liability166 and leaves the remedy for any abuse to the criminal law, or to the court’s own powers to control its proceedings. Thus, it has been said that no tortious liability lies for a party who, however dishonestly, presents a false case in civil proceedings, as all of those involved in civil proceedings must be accorded the same protection. ‘If the position were otherwise, honest litigants might be deterred from pursuing honest claims or defences and honest witnesses might be deterred from giving evidence.’167 It may be that this point was overlooked when it was held168 that a defendant to an action to recover a debt had committed the tort of collateral abuse of process169 by pursuing a baseless line of cross-examination for the purpose of diminishing the plaintiff’s reputation.170

25.25 The essence of this tort is that the defendant has used some aspect of the machinery of the law to achieve a purpose which not only could not have lawfully been attained but also was ‘entirely outside the ambit of the legal claim upon which the court is asked to adjudicate’.171 Hence, to institute proceedings with the predominant purpose of delaying the enforcement of a claim made against that party would constitute the commission of this tort.172 Similarly, in Grainger v Hill the real vice of the defendant’s conduct was gaining possession of the plaintiff’s ship register, and in Dowling’s case it would have been the revelation of the names of those assisting the plaintiff. So too in McKechnie v Campbell,173 the defence filed to an action in defamation was an abuse of process, as its purpose was the wholly [page 721] collateral one of providing a third party with a forum in which to agitate for a public inquiry into his conviction for an unrelated crime many years previously. To insist that the defendant’s purpose is unconnected with the process which that party has employed is a necessary limitation on the ambit

of the tort. Were it not imposed, one might be led to suppose that to demand an end to litigation on terms that a court could not require — such as to publish an apology for defamatory remarks — would amount to an abuse of process.174 Furthermore, since the crucial element of this tort is the improper purpose in bringing the impugned proceedings, the action lies only against that person, and not, for instance, against his or her legal representative.175

25.26 Damages in this action will include all the non-remote consequences of the commission of the tort.176 Although it has been suggested177 that, by analogy with the action for malicious prosecution, damages representing the difference between party and party costs and solicitor and client costs should not be recoverable, it must be recalled that, for one thing, such a restriction on damages in the action for malicious prosecution may be open for review,178 and for another thing, the action for collateral abuse of process does not require any prior decision in the plaintiff’s favour and hence no prior adjudication as to his or her entitlement to costs.179

Misfeasance in Public Office180 25.27 In the early years of the nineteenth century there were a number of actions available to those who suffered damage by the malicious and unjustified use by a public official of the powers vested in him or her. Thus, an action that was very similar to that for malicious prosecution lay against a magistrate or justice of the peace for damage caused by the exercise of judicial functions, within jurisdiction181 but maliciously and without reasonable and probable cause.182 Similarly, in Henley v Mayor of Lyme,183 in 1828, it was said to be ‘perfectly clear’ that if any other public officer ‘abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained [page 722] against such public officer’.184 Although the action against judicial officers acting maliciously but within their jurisdiction is most probably now obsolete,185 it has recently been confirmed that an action still lies against a

judicial officer for causing damage by knowingly acting without or in excess of jurisdiction, and with malice.186 But the action which may have originally been applicable mainly to judicial officers has expanded, with the growth of executive and administrative power in all forms of government, to encompass a wide range of public officials. The tort of misfeasance in public office permits an individual to recover for the loss or damage suffered consequent upon action taken by the holder of a public office, if the officer acted maliciously or knew that the action was beyond power and was likely to harm the plaintiff. The action is not confined to positive conduct by the defendant, but includes a deliberate failure to fulfil a public duty cast upon him or her. In its modern guise, the reason for such liability has been found in the view that, in a legal system based on the rule of law, executive and administrative power must be exercised only for the public good, and not for an ulterior or improper purpose.187

25.28 It must be stressed at the outset that this action requires, as one element, some form of intention to cause harm to the plaintiff. It has been argued on occasion that one who suffers financial harm as the direct consequence of administrative action which turns out to be invalid may recover that loss by an action in tort, but that argument has been steadfastly rejected.188 No action lies against a public officer who causes loss by reason of an act which is later found to be without force, so long as the officer acted in good faith and without knowledge of the invalidity.189 The elements of the action, each of which requires separate discussion, is that the holder of a public office, acting in bad faith, causes loss or damage to the plaintiff.

Holder of a public office 25.29 This tort is capable of being committed only by a person or body who fulfils some public function, but the precise circumstances in which a defendant may come within the ambit of the wrong have yet to be authoritatively determined. It was suggested by Smith J, delivering the judgment of the Full Court in Victoria in Tampion v Anderson,190 that a public office, for these purposes, is one ‘the holder of which owes duties to members of the public as to how the office shall be exercised’. But as his

Honour went on to point out, merely to conclude that a person has been [page 723] appointed to such a position is not sufficient to determine this aspect of liability, since there may be some functions and powers applicable to that position in relation to the exercise of which no duty is owed to members of the public. The defendant in that case had been constituted as a Board of Inquiry, the only statutory powers of which were to summon witnesses, administer oaths and the like. The court was doubtful whether the defendant could be regarded as the holder of a public office for these purposes. A consideration of this notion which seeks to encompass both the public nature of the position held and the public nature of the powers and functions exercised is that of Morris J in the High Court of New Zealand. His Honour accepted the suggestion of counsel that a public officer is ‘a person employed to perform a statutory power or duty in which the public has an interest’.191 Although the judge went on to hold that the defendant, a social worker employed by the Department of Social Welfare, was not a public officer in respect of the breaches of duty alleged against her, he acknowledged that she would have been had the complaint related to the defendant’s laying of charges against alleged offenders. A public officer also includes government employees undertaking duties for the purpose of eradicating diseases in stock,192 a Minister of the Crown either when deciding to withdraw funding from a women’s shelter193 or when considering whether or not to deport a non-citizen,194 prison officers,195 parole officers,196 and a member of the police force, whether carrying out coercive duties197 or investigating alleged criminal activity.198 However, the chief executive officer of a government department is not regarded as the holder of a public office for these purposes when exercising managerial functions in relation to the staff of the department.199 The same is true of counsel briefed to prosecute for the Crown and an instructing solicitor, because neither, in the course of performing their duties, exercises any power which might be misused.200 So too a subordinate officer of a government department whose task is to prepare a report on the conduct of a fellow officer is not a public officer for these purposes.201

25.30 A body corporate is just as capable of committing this tort as an

individual. So, a statutory corporation which exercises governmental functions202 has accepted [page 724] that it may be liable, if the other elements of the tort were to be proved,203 and the same has been held to be true for a local body when exercising a public function such as those relating to town planning.204 Indeed, it appears that, when a local body is purporting to carry out a power which is for the benefit of the borough or municipality as a whole, it is irrelevant that in the particular instance the power is derived from a lease rather than from legislation.205 Of course, if it is a group of people that is sued — such as the members of a borough or municipal council — to prove the necessary bad faith on the part of all the members of the group may be difficult, but certainly not impossible.206 Alternatively, if the person or persons who have demonstrated the necessary animus against the plaintiff are employees, their employer may be vicariously liable.207

Bad faith 25.31 The second element of this tort which it is incumbent on the plaintiff to prove is that the defendant acted in bad faith. This may be established in either of two ways.208 First, that the defendant was motivated by a purpose quite foreign to that for which the public power or duty had been bestowed, and that the impugned conduct was undertaken with the intention of harming the plaintiff.209 Secondly, and alternatively, the defendant’s lack of good faith will have been demonstrated if the acts or omissions complained of were undertaken in the knowledge that they were beyond power210 and were likely to harm the plaintiff.211 A matter which has not yet been conclusively determined is the extent to which a defendant who acts in conscious disregard of his or her authority must direct the acts to harming the plaintiff. Despite some judicial observations which may suggest otherwise,212 it is not [page 725]

sufficient that the defendant merely knows that he or she has acted beyond power and that damage has consequently been caused to the plaintiff.213 The High Court of Australia, in Northern Territory v Mengel,214 inclined to the view that the defendant’s ultra vires acts must have been carried out with the intention of harming the plaintiff or with reckless indifference to the harm that was likely to ensue,215 while the New Zealand Court of Appeal, in Garrett v A-G,216 would have limited the tort somewhat, by requiring the plaintiff to show that the public officer actually knew of the consequences for the plaintiff of the disregard of duty, or was recklessly indifferent to those consequences. Subsequently, the House of Lords, in Three Rivers District Council v Bank of England (No 3),217 agreed with the New Zealand Court of Appeal that it is necessary for the plaintiff to show that the defendant has acted in the knowledge that his or her act would probably injure the plaintiff. More recently, the Supreme Court of Canada adopted the same approach as these latter two courts, saying that one element of the tort is that ‘the defendant must have been subjectively reckless or wilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct’.218 Both the New Zealand Court of Appeal and the House of Lords were prepared to accept that the defendant’s knowledge of the consequences of the ultra vires act was not limited to the way in which the conduct might affect a particular plaintiff, but extended to knowledge of the consequences for a class of persons of whom the plaintiff is a member. This formulation has been interpreted by the English Court of Appeal as allowing the tort to lie if, at least in the case of misfeasance leading to personal injury or death, the defendant knew that an unspecified individual was likely to suffer that harm.219 Whatever doubt may surround the issue of the degree to which the defendant’s reckless indifference to the consequences of his or her action will expose him or her to liability, it is clear that the defendant must have actual knowledge that the acts or omissions complained of were beyond power, or recklessly disregarded the means of acquiring that knowledge.220 It is not sufficient that the defendant was incompetent in failing to ascertain the extent of the relevant power221 or was in the position that he or she merely ought reasonably to have realised the lack of power, for that would be to conflate this tort with that of negligence.222 Although the name of the tort is ‘misfeasance’ in public office, and not

‘nonfeasance’, it has been accepted that it is possible to allege that the defendant’s failure to act may found an action. But to show that the action lies, the plaintiff would need to [page 726] show not only that the defendant was, in effect, under a duty to act, but, in full knowledge thereof, made a conscious decision not to act, with the intention that, at the very least, damage to the plaintiff is a likely consequence.223

Damage 25.32 Since this tort is derived from the action on the case,224 the plaintiff must show that loss or damage has been suffered. Hence when a prisoner complained that prison officers had wrongfully opened his correspondence with his legal advisers, the House of Lords held that, although the officers had acted beyond their power and in bad faith, the plaintiff could not show that he had suffered material damage and hence his claim was dismissed.225 The damage which is the gist of the action may assume a variety of different forms; it includes the adverse effects of the administrative action on the plaintiff’s person — whether the injury is physical226 or psychological227 — or on his or her property228 or reputation.229 Thus a person may sue for the revocation of a licence to sell alcohol230 or to pilot a ship231 or to import turkeys.232 The action also lies for damage resulting from striking a dentist off the register of practitioners,233 forcing the closure of a hotel,234 refusing to acknowledge the legality of a tax minimisation scheme,235 or denying consent to a change of use of land.236 Since this action is founded on the ill-will of the defendant, it is one peculiarly appropriate for an award of exemplary damages.237

Maintenance and Champerty Definition and application

25.33 Any person who without lawful justification assists a plaintiff or defendant in civil proceedings to which that person is not a party commits the tort of maintenance, [page 727] actionable by anybody who can show that damage has been suffered thereby. If the defendant is to receive by way of reward a portion of anything which may be gained as a result of such proceedings then the tort is known as champerty. Champerty, in other words, is ‘a particular form of maintenance in which a share of the proceeds of the litigation is stipulated for as the consideration for the assistance given’.238 At one time maintenance was a term with a very wide denotation,239 and was not only a civil wrong but also a crime. Whether it is still a crime at common law must be regarded as doubtful;240 and it is clear that its scope as a civil wrong is steadily contracting, so that many acts which were classed as maintenance in previous centuries are not now so regarded.241 The torts of both maintenance and champerty have been abolished by statute in New South Wales, Victoria and the Australian Capital Territory,242 but their retention has been specifically recommended in New Zealand.243 Although the legislation leaves untouched any rule of law as to whether a champertous contract is to be treated as contrary to public policy, the High Court has held that a litigation funding agreement, even if it involves maintenance and champerty, is not invalid as offending against public policy.244 In the other jurisdictions, the continued existence of the torts of maintenance and champerty has been reaffirmed.245

25.34 In the case of either maintenance or champerty: … the essence of the action [is] … the officious intermeddling in and supporting litigation in which the maintainer has no legitimate interest, the invasion of a person’s right not to be harried in courts of justice by litigation of this sort.246

The plaintiff is not required to prove that the defendant was malicious — merely that there was an intention to do the act of interference complained of,247 ‘the element of impropriety or officious intermeddling being supplied by the fact of interference in the suit by giving aid to one party or the other,

coupled with the absence of legal justification for so doing’.248 The requirement of officious intermeddling reflects the notion that the purpose of the tort is to discourage the improper stirring-up of litigation, regardless of motive. It was this factor that led Lord Esher MR in Alabaster v Harness249 to comment that liability for maintenance is founded not so much on general principles of right and wrong or of natural justice as on considerations of public [page 728] policy.250 The tort, moreover, does not extend to aid given in criminal proceedings251 and is confined in any event to the rendering of assistance in civil litigation before a court or arbitrator;252 it is inapplicable, for example, to financial or other help provided to secure a gaming permit or a planning permission.253 But the fact that the plaintiff in an action is being maintained is not a defence to that action,254 but (where the tort still exists) is a ground for a cross-action.

25.35 To determine whether conduct amounts to maintenance or champerty in any given circumstance is a matter of some subtlety which must depend on all the surrounding circumstances. In Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd,255 it was held that a company which agreed to provide a range of assistance to franchisees in any disputes which the latter might have with their franchisors had thereby committed maintenance and, by providing that it be paid 20 per cent of the fruits of any litigation, had also committed champerty. As will be seen in 25.40, it is permissible for a trade association to provide financial and other assistance to its members. However, the defendant to these proceedings, having been deliberately constituted as separate from an association of franchisees in order to be able to earn profits for the benefit of its shareholders and not for the benefit of the association, was not able to bring itself within this exception. A further example of the tort is JC Scott Constructions v Mermaid Waters Tavern Pty Ltd,256 in which the plaintiff builder had terminated its contract with the defendant building owner after the latter had excluded it from the site. The owner, wishing to ensure that the works were completed as speedily as possible by the original subcontractors, lent them the money which was still owed to them by the

builder, on condition that each of the subcontractors sued the builder for that outstanding amount, and levied execution on the judgment. This conduct by the owner was held to be maintenance. It was pointed out257 that the owner had available a variety of legitimate means of ensuring that the building works were completed speedily, such as paying the subcontractors and taking an assignment of their rights of action. The method which it had chosen, however, was the very one designed to ensure the maximum amount of litigation against the builder, and hence was maintenance.

25.36 It should not, however, be thought that to advance credit to a person in order to encourage the commencement of a suit by that person will necessarily be maintenance. In Giles v Thompson258 the House of Lords was faced with the question of whether an agreement between a car-hire company and the victim of a road [page 729] accident was unenforceable as savouring of maintenance. The contract provided for the hiring of a car while the victim’s car was being repaired or replaced, but contemplated that all the hiring charges would only be paid out of the damages awarded to the victim, and that the hire company would bear the costs of the litigation against the person who had caused the road accident in the first place. Even though this may have amounted to advancing credit to encourage litigation, the House considered that it would not unduly affect the administration of justice and so was not contrary to that public policy which is the basis of the tort of maintenance.

25.37 Similar distinctions must be drawn when considering what assistance a legal practitioner may lawfully provide to a client. By virtue of a principle of the common law which has been said to be incapable of further development,259 a solicitor260 commits champerty by agreeing with a client not only to be paid the costs and disbursements out of any damages recovered by the client, but also by setting the level of payment for services as a proportion of the damages award.261 But the vice in that conduct is the fixing of the solicitor’s payment by reference to the amount recovered by the client. It has been accepted by the courts in New Zealand262 and Australia,263 and

more recently in England,264 that it is not a legal wrong for a solicitor not to be paid by a client unless and until the latter has received an award of damages, provided that the client’s claim is a bona fide one, and that the fees charged are the proper amount for the work undertaken.265 And, while the sale of the whole or part of the amount to be recovered in a civil action does not, as it stands, constitute maintenance or champerty,266 if that sale includes a provision under which the purchaser agrees to finance the litigation, the agreement is champertous.267

Justification and exception 25.38

Even though a person’s conduct might prima facie constitute maintenance or champerty, that conduct may be justified — and so lose its wrongful character — if it was undertaken to aid one who was impecunious, or if the participant had a bona fide interest in the proceedings which have been assisted. The laws of bankruptcy and insolvency have created an exception to the principles governing maintenance and champerty. [page 730]

Aid to the impecunious 25.39 It was accepted in at least the latter years of the nineteenth century that one may justify what would otherwise be maintenance by showing that the financial assistance provided was an act of charity to one who was in such poverty as to be unable to prosecute a just suit without aid.268 And, as with other aspects of this tort, this ground of justification has by no means diminished during the course of the twentieth century. Thus, it is not necessary to prove that the assisted person was in fact without means; an honest belief that such is the case will suffice.269 And, so long as the belief is honest, it need not be shown to be based on reasonable grounds.270 Furthermore, one whose assets, even though substantial, are held in trust and not available for the purposes of litigation may be regarded as poor.271 Indeed, it may well be that an assisted litigant will be regarded as poor for these purposes if his or her assets, whatever their absolute size, are

insignificant compared with the resources available to the other party to the maintained action.272

Bona fide interest in the proceedings 25.40 One who has, or bona fide believes that he or she has, a common interest with another in the outcome of an action is justified in providing financial support to that other for the prosecution of the action. Until the middle of the twentieth century, the interest necessary to justify that maintenance was a present, contingent or future financial interest in the outcome of the action, or an interest arising from the relationship of the parties, whether by employment or within a family.273 If that interest was shown, then champerty as well as maintenance would be justified,274 and maintenance even of an action of a personal nature, such as defamation, would not be a wrong.275 But in the last 50 years the concept of a relevant interest has broadened in scope. It now includes those who have a legitimate commercial interest in the outcome of the litigation, so that it is permissible for an industry association to support the defence of a member of that association who faces proceedings which may extend the ambit of liability of all the members.276 And it also includes those with a shared recreational interest in the proceedings, allowing a national sporting association lawfully to provide financial assistance to one who seeks to preserve the amenities necessary to enjoy that sport.277 [page 731] Even though a third party to the litigation has a relevant interest in its outcome, the court must still be satisfied that the means used to protect that interest are proper. It is not, for instance, justifiable to promote litigation, one purpose of which is to preserve the maintainer’s business interests, if the principal motive behind the action is financially to embarrass one of the parties thereto and seek to drive it into liquidation.278

25.41 By analogy with the above principles, it is now accepted that an assignment of a cause of action, whether in contract279 or in tort280 does not

savour of maintenance or champerty, and is consequently enforceable, provided that the assignee has a genuine and substantial interest in the success of the action.281 But the assignment will be struck down if it would allow the assignee to reap a benefit far in excess of his or her commercial interest in the litigation.282

An exception for bankruptcy and insolvency 25.42 The assignee of a bankrupt and the liquidator of a company each has a statutory power to sell the assets of the bankrupt or the company.283 In a series of English decisions in the latter years of the nineteenth century,284 the correctness of which was subsequently confirmed by the House of Lords,285 it was held that the English equivalent of those statutory provisions forms an exception to the rules against maintenance and champerty. Hence, when those assets include a right to sue, a sale of that cause of action does not offend against the law relating to maintenance and champerty, even though the consideration for the sale is a share of the amount recovered by exercising the right to sue. This exception has been recognised as applying in Australia286 and New Zealand.287 However, the exception applies only to the sale of assets which were the property of the bankrupt person or insolvent company at the time of the bankruptcy or insolvency. Subject to any statutory provisions to the contrary,288 a right of action, for instance, against directors of a company which arises only after the company has gone into liquidation cannot [page 732] form part of the property of the company for these purposes, with the result that the sale of such a right of action does not come within this exception, and would be unenforceable.289

The need to show special damage 25.43 It was established in Neville v London ‘Express’ Newspaper Ltd290 that no action in maintenance or champerty will lie without proof of special

damage, which may consist of the cost of defending an unmeritorious claim which is concluded in favour of the plaintiff to the proceedings for maintenance or champerty, or possibly a loss of business caused by the publicity surrounding the maintained action.291 The House of Lords held, moreover, that special damage for these purposes excludes the liability for the amount of a judgment, the party and party costs imposed on the plaintiff by the court, and the liability incurred to the plaintiff’s own legal advisers in defending the action. The result of this decision is that, if the action unlawfully maintained proves to be successful, no action will lie against the maintainer if the only damages alleged are the expenses incurred in paying the amount of the judgment and costs, or the costs of defence.292 The reasoning adopted by the House of Lords was that, since those liabilities were ones which were owed in any case by the plaintiff, and had merely been crystallised by the maintained action, they could not be recognised as a head of loss. In Sievwright v Ward293 it was suggested that the position would be the same where the maintained action is brought to an end by a settlement in terms of which money is paid to the person whose action has been so maintained. An example of special damage is provided by JC Scott Constructions v Mermaid Waters Tavern Pty Ltd294 in which the plaintiff was able to prove the refusal of its banker to continue to provide bank guarantees and accommodation by way of bank overdraft to support its further building activities. Because of this lack of assistance, the plaintiff was obliged to leave cash retentions with building owners and to accept accommodation by way of commercial bill acceptance line which increased the cost of interest payable by it over that which would have been payable on overdraft.295 _______________ 1.

Jamieson v R (1993) 177 CLR 574 at 594; 116 ALR 193 at 207 per Gaudron J; see also, to the same effect, Henderson v Broomhead (1859) 4 H & N 569 at 579; 157 ER 964 at 968 per Crompton J, quoted in Cabassi v Vila (1940) 64 CLR 130 at 145 per Starke J.

2.

Dawkins v Lord Rokeby (1873) LR 8 QB 255; aff’d (1875) LR 7 HL 744; Cabassi v Vila (1940) 64 CLR 130. In England, expert witnesses generally no longer enjoy this immunity: see Jones v Kaney [2011] 2 AC 398; 2 All ER 671.

3.

Commonwealth v Griffith (2007) 70 NSWLR 268 (CA).

4.

Henderson v Broomhead (1859) 4 H & N 569; 157 ER 964.

5.

Rajski v Powell (1987) 11 NSWLR 522 (CA); Yeldham v Rajski (1989) 18 NSWLR 48 (CA); Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668 (CA). The same immunity extends to a

master or registrar (Wentworth v Wentworth (2000) 52 NSWLR 602 at [58] per Fitzgerald JA (CA)), including the Principal Registrar of the Licensing Court (Scanlon v Director-General, Department of the Arts, Sport and Recreation (2006) 66 NSWLR 292) or a court-appointed referee: Najjar v Haines (1991) 25 NSWLR 224 (CA). 6.

Munster v Lamb (1883) 11 QBD 588; Love v Robbins (1990) 2 WAR 510 at 521 per Malcolm CJ (FC); Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 390 per Dawson J (HCA) (aff’d (1994) 120 ALR 586).

7.

Bushell’s case (1670) 1 Freem KB 2; 89 ER 2.

8.

See Jamieson v R (1993) 177 CLR 574; 116 ALR 193.

9.

Evans v London Hospital Medical College [1981] 1 All ER 715; Taylor v Serious Fraud Office [1992] 2 AC 177; [1998] 4 All ER 801 (HL).

10.

Watson v M’Ewan [1905] AC 480 (HL); Palmer v Durnford Ford [1992] QB 483; 2 All ER 122; Stanton v Callaghan [2000] QB 75; [1998] 4 All ER 961 (CA).

11.

Mond v Hyde [1999] QB 1097; [1998] 3 All ER 833 (CA).

12.

D v East Berkshire Community NHS Trust [2004] QB 558; [2003] 4 All ER 796 (CA).

13.

Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435; [2000] 4 All ER 193 (HL).

14.

X v South Australia (No 3) (2007) 97 SASR 180 (FC).

15.

Hence, in proceedings for malicious prosecution the plaintiff can rely on evidence given previously by the defendant: Roy v Prior [1971] AC 470; [1970] 2 All ER 729 (HL); Martin v Watson [1996] AC 74 at 78–9; [1995] 3 All ER 559 at 569–70 per Lord Keith (HL).

16.

Jamieson v R (1993) 177 CLR 574 at 595; 116 ALR 193 at 207–8 per Gaudron J.

17.

Thus, the plaintiff must prove that the defendant acted both maliciously and without reasonable and probable cause: see 25.13 and 25.7.

18.

See also Law Reform Committee of South Australia, Eighty-third Report, Relating to Civil Actions for Perjury and to the Tort of Malicious Prosecution, 1984, which recommended an easing of the requirements of the tort.

19.

Including a court martial (Forster v MacDonald (1995) 127 DLR (4th) 184 (Alta CA)); but see Little v Law Institute of Victoria (No 3) [1990] VR 257 (App Div), discussed in 25.18.

20.

For example, Critchley v Hill (1963) 38 DLR (2d) 492 (BC SC); Perry v Fried (1973) 32 DLR (3d) 589 (NS SC).

21.

For example, Malz v Rosen [1966] 2 All ER 10.

22.

The same principle applies even though the person concerned has no wish to bring the prosecution: Fitzjohn v Mackinder (1861) 9 CB (NS) 505; 142 ER 199.

23.

Danby v Beardsley (1880) 43 LT 603 at 604 per Lopes J.

24.

Fanzelow v Kerr (1896) 14 NZLR 660; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379 per Dixon J; Cumberland v Clark (1996) 39 NSWLR 514; Emanuele v Hedley (1997) 137 FLR 339 at 347 per Higgins J (ACTSC).

25.

Danby v Beardsley (1880) 43 LT 603 at 604 per Lindley J.

26.

Martin v Watson [1996] AC 74 at 87–8; [1995] 3 All ER 559 at 568–9 per Lord Keith (HL); Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 at [42]–[43].

27.

Tewari v Singh (1908) 24 TLR 884 (PC); Davis v Gell (1924) 35 CLR 275 at 283 per Isaacs ACJ; Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 197 per Richardson J (CA); Mahon v Rahn (No 2) [2000] 4 All ER 41 (CA); see generally Kondilinye, ‘Setting in Motion Malicious Prosecutions: The Commonwealth Experience’ (1987) 36 ICLQ 157 at 167.

28.

See the illustration given by Sir Arthur Scoble in Tewari v Singh (1908) 24 TLR 884 (PC).

29.

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343.

30.

Fanzelow v Kerr (1896) 14 NZLR 660 at 667 per Denniston J; Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 199 per Richardson J (CA).

31.

Martin v Watson [1996] AC 74 at 88; [1995] 3 All ER 559 at 569 per Lord Keith (HL).

32.

Fitzjohn v Mackinder (1861) 9 CB (NS) 505 at 530–1; 142 ER 199 at 209 per Cockburn CJ; see also Coleman v Buckingham’s Ltd [1963] SR (NSW) 171 at 178 per Herron CJ and Walsh J (FC).

33.

Daniels v Telfer (1933) 34 SR (NSW) 99 at 102 per Harvey ACJ (FC).

34.

Johnson v Emerson (1871) LR 6 Ex 329; Dunshea v Ryan (1901) 1 SR (NSW) 163.

35.

In Hamilton v Hordern (1903) 3 SR (NSW) 139, the action failed because, although the firm’s senior manager had extensive powers to engage or dismiss employees, these did not include the authority to prosecute them for the purpose of punishment.

36.

Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR (NSW) 36 at 39 per Jordan CJ (FC); Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 201 per Richardson J (CA).

37.

Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR (NSW) 36 at 39–40 per Jordan CJ (FC).

38.

Casey v Automobiles Renault Canada Ltd (1965) 54 DLR (2d) 600 (SCC), in which the information was withdrawn before any action had been taken on it.

39.

Mohamed Amin v Jogendra Kumar Bannergee [1947] AC 322 at 331 (PC).

40.

See Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 539–40.

41.

See, eg, Basébé v Matthews (1867) LR 2 CP 684 at 687 per Byles J; Bouvy v Count de Courte (1901) 20 NZLR 312 at 315 per Stout CJ.

42.

See, eg, Gilding v Eyre (1861) 10 CB (NS) 592 at 604; 142 ER 584 at 589 per Willes J; Castrique v Behrens (1861) 3 E & E 709 at 721; 121 ER 608 at 613 per Crompton J.

43.

See, eg, Johnson v Emerson (1871) LR 6 Ex 329 at 344 per Cleasby B; Spautz v Gibbs (1990) 21 NSWLR 230 at 269 per Priestley JA (CA).

44.

Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; Van Heeren v Cooper [1999] 1 NZLR 731 at 743 (CA); but such proof is necessary if the proceedings have terminated by the entry of a nolle prosequi, discussed below.

45.

Boaler v Holder (1887) 51 JP 277 (Div Ct).

46.

Reynolds v Kennedy (1748) 1 Wils KB 232; 95 ER 591.

47.

If the proceedings are in bankruptcy, the plaintiff must show that the adjudication was set aside: Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 72 per O’Connor J; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210.

48.

Wicks v Fentham (1791) 4 Term Rep 247; 100 ER 1000; Mann v Jacombe (1960) 78 WN (NSW) 635.

49.

Emanuele v Hedley (1997) 137 FLR 339 at 348 per Higgins J (ACTSC).

50.

Watkins v Lee (1839) 5 M & W 270; 151 ER 115.

51.

[1999] 1 NZLR 731 at 744 (CA).

52.

That is, a staying by the Attorney-General of proceedings on an indictment.

53.

Gilchrist v Gardner (1891) 12 LR (NSW) (L) 184.

54.

(1924) 35 CLR 275.

55.

See the extensive discussion of the previous cases in Beckett v New South Wales [2012] NSWCA 114. An application to the High Court for special leave to appeal was referred for hearing into the Full Court on 5 October 2012: see Beckett v New South Wales [2012] HCA Trans 252, but the matter had not been proceeded with further at the time of going to press.

56.

Cf the suggestion made by the Court of Appeal in Van Heeren v Cooper [1999] 1 NZLR 731 at 740, that, even if the plaintiff establishes the favourable termination of the criminal proceedings, the defendant would have a complete defence to the subsequent tort action by proving (on the balance of probabilities) that the plaintiff was guilty of the crime for which he or she had been prosecuted.

57.

Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 544. As to whether such an issue might be raised for the purpose of establishing reasonable and probable cause, see Earnshaw v Loy (No 1) [1959] VR 248 at 251 per Sholl J.

58.

Stimac v Nicol [1942] VLR 66; Love v Robbins (1990) 2 WAR 510 at 521 per Malcolm CJ (FC).

59.

Basébé v Matthews (1867) LR 2 CP 684; Everett v Ribbands [1952] 2 QB 198; 1 All ER 823 (CA).

60.

Cameron v James [1945] VLR 113 (FC). A conviction need not be recorded, despite the offender’s guilt, under: Crimes Act 1914 (Cth) s 19B; Crimes Act 1900 (ACT) s 402; Crimes (Sentencing Procedures) Act 1999 (NSW) s 10; Sentencing Act 1995 (NT) s 8; Penalties and Sentences Act 1992 (Qld) s 19; Criminal Law (Sentencing) Act 1988 (SA) s 15; Sentencing Act 1997 (Tas) s 10; Sentencing Act 1991 (Vic) ss 75, 76; Sentencing Act 1995 (WA) s 46; Criminal Justice Act 1985 (NZ) s 19.

61.

(1901) 20 NZLR 312.

62.

It is immaterial that the prisoner, having arrived in the foreign state, is released by the authorities there, because the extradition proceedings are regarded as having terminated when the prisoner is handed over.

63.

Castrique v Behrens (1861) 3 E & E 709; 121 ER 608.

64.

Fitzalan v Nicholson (1896) 13 WN (NSW) 51.

65.

Smith v Cotton (1926) 27 SR (NSW) 41.

66.

Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 53 per Griffith CJ; contra per Isaacs J at 90.

67.

See, eg, Isaacs ACJ in Davis v Gell (1924) 35 CLR 275 at 287.

68.

Johnstone v Sutton (1786) 1 Term Rep 510; 99 ER 1225; nor will establishing the absence of reasonable and probable cause of itself necessarily support a finding of malice: Rapley v Rapley (1930) 30 SR (NSW) 94 at 98 per Street CJ (FC).

69.

Stapeley v Annetts [1969] 3 All ER 1541 (CA).

70.

(1881) 8 QBD 167 at 171; aff’d (1882) 46 LT 127 (CA).

71.

(2007) 230 CLR 500; 233 ALR 584 at [58].

72.

See also the valuable discussion of what is required to prove absence of reasonable and probable cause in New South Wales v Quirk [2012] NSWCA 216 at [70].

73.

Juries are not permitted, or are allowed only with leave, in South Australia and the two territories: Juries Act 1927 (SA) s 5; Supreme Court Act 1933 (ACT) s 22; Juries Act 1962 (NT) s 7(1).

74.

Lister v Perryman (1870) LR 4 HL 521; Herniman v Smith [1938] AC 305 at 316 per Lord Atkin; Sharp v Biggs (1932) 48 CLR 81 at 106; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 382 per Dixon J.

75.

Herniman v Smith [1938] AC 305 at 316; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 471 per Jordan CJ (FC).

76.

Mitchell’s case; Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR (NSW) 36 at 41 per Jordan CJ; Hatzinikolaou v Snape (1989) Aust Tort Reports 80-262 at 68,808–9 per Kirby P (NSWCA).

77.

Another example is provided in Little v Law Institute of Victoria (No 3) [1990] VR 257 at 264 (App Div) where it was said that it would be for the jury to determine whether the respondent honestly believed that certain regulations upon which the prosecution was based had been validly made.

78.

Herniman v Smith [1938] AC 305 at 316–17 per Lord Atkin; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 471; Hatzinikolaou v Snape (1989) Aust Tort Reports 80-262 at 68,808–9 per Kirby P (NSWCA).

79.

Sharp v Biggs (1932) 48 CLR 81 at 106–7 per Dixon J. The possibility also exists, of course, of the judge erroneously taking on the function of factual determination which rightfully belongs to the jury: Hatzinikolaou v Snape (1989) Aust Tort Reports 80-262 at 68,810 (NSWCA).

80.

Abrath v NE Railway Co (1883) 11 QBD 440 at 458 per Bowen LJ (CA); aff’d (1886) 11 App Cas 247 (HL). And see Brain v Commonwealth Life Assurance Society Ltd (1934) 35 SR (NSW) 36 at 42–3.

81.

Sharp v Biggs (1932) 48 CLR 81 at 107 per Dixon J.

82.

Tempest v Snowden [1952] 1 KB 130; 1 All ER 1 (CA).

83.

Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469 per Jordan CJ; Grimwade v Victoria (1997) 90 A Crim R 526 at 542-4 per Harper J (Vic SC).

84.

Barclay v Fealy (1910) 10 SR (NSW) 627 at 631 per Pring J; and see Barry v Tully (1888) 9 LR (NSW) (L) 476 at 479 per Windeyer J.

85.

Crowley v Glissan (No 2) (1905) 2 CLR 744.

86.

Davis v Gell (1924) 35 CLR 275 at 288 per Isaacs ACJ citing Corea v Peiris [1909] AC 549 at 555 per Lord Atkinson; Sharp v Biggs (1932) 48 CLR 81 at 87; Assheton v Merrett [1928] SASR 11 at 13 per Richards J; Longden v Weigall (1877) 3 VLR (L) 266 at 268.

87.

Abrath v NE Railway Co (1883) 11 QBD 440 at 451 per Brett MR (CA); Assheton v Merrett [1928] SASR 11 at 13-14 per Richards J.

88.

Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469 per Jordan CJ.

89.

The defence succeeded in Ravenga v Mackintosh (1824) 2 B & C 693; 107 ER 541, and in Cheney v Bardwell (1899) 20 LR (NSW) 401 it was seen as providing some evidence of reasonable and probable cause. The defence failed in Mackenzie v Hyam (1908) 8 SR (NSW) 587 where the advice was manifestly incompetent.

90.

Assheton v Merrett [1928] SASR 11; McCaffrey v Hill (1903) 3 SR (NSW) 303; cf Malz v Rosen [1966] 2 All ER 10.

91.

Contest v Croxton (1875) Sydney Morning Herald, 10 December, cited in McCaffrey v Hill (1903) 3 SR (NSW) 303 at 305.

92.

For example, Huntley v Simson (1857) 27 LJ (Ex) 134.

93.

Though not, perhaps, the view expressed in Johnson v Emerson (1871) LR 6 Ex 329 at 365, that error in point of law can never amount to evidence of absence of reasonable and probable cause.

94.

Per Windeyer J in Barry v Tully (1888) 9 LR (NSW) (L) 476 at 481.

95.

Phillips v Naylor (1859) 4 H & N 565; 157 ER 964; Bardwell v Galvin (1866) 6 SCR (NSW) 91. In Riches v Director of Public Prosecutions [1973] 2 All ER 935 (CA) it was held that an allegation of want of reasonable cause in an action against the DPP stood no chance of success when the committing magistrate, the trial judge and the jury all shared the view of the evidence held by the DPP.

96.

(1888) 9 LR (NSW) (L) 476 at 481.

97.

Dent v Standard Life Association (1904) 4 SR (NSW) 560 at 564; Birchmeier v Rockdale Municipal Council (1935) 51 WN (NSW) 201 at 202.

98.

(2007) 230 CLR 500; 233 ALR 584 at [99]–[100].

99.

Longden v Weigall (1877) 3 VLR (L) 266 at 267; Dent v Standard Life Association (1904) 4 SR (NSW) 560 at 565; Assheton v Merrett [1928] SASR 11 at 14; A v New South Wales (2007) 230 CLR 500; 233 ALR 584 at [89].

100. Per Fullagar J in Trobridge v Hardy (1955) 94 CLR 147 at 155. See also Abrath v NE Railway Co (1883) 11 QBD 440 at 455 per Bowen LJ (CA); Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 202 per Richardson J (CA), quoting from Lord Devlin in Glinski v McIver [1962] AC 726 at 766; 1 All ER 696 at 714 (HL); A v New South Wales (2007) 230 CLR 500; 233 ALR 584 at [91]. 101. Brown v Hawkes [1891] 2 QB 718 at 722 per Cave J. 102. Rapley v Rapley (1930) 30 SR (NSW) 94 at 99 per Street CJ. 103. In Glinski v McIver [1962] AC 726; 1 All ER 696 (HL) it was alleged that the charge of conspiracy had been laid to punish the plaintiff for having given evidence against the police in a previous matter. 104. Turner v Ambler (1847) 10 QB 252; 116 ER 98. 105. Nye v New South Wales (2004) Aust Torts Reports 81-725. 106. A v New South Wales (2007) 230 CLR 500; 233 ALR 584. 107. Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343. 108. QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245. 109. (1930) 30 SR (NSW) 94 at 99. 110. So that the judge will non-suit the plaintiff if it appears that there is no prima facie evidence of

malice. 111. Longden v Weigall (1877) 3 VLR (L) 266 at 268 per Stawell CJ; Rapley v Rapley (1930) 30 SR (NSW) 94 at 98 per Street CJ. 112. Per Isaacs J in Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 100; Dent v Standard Life Association (1904) 4 SR (NSW) 560 at 565; Assheton v Merrett [1928] SASR 11 at 15; Longden v Weigall (1877) 3 VLR (L) 266 at 267. 113. (1930) 30 SR (NSW) 94. And see Wershof v Commr of Police for the Metropolis [1978] 3 All ER 540. 114. Sharp v Biggs (1932) 48 CLR 81 at 87 per Gavan Duffy CJ and Starke J. 115. Turner v Ambler (1847) 10 QB 252; 116 ER 98. 116. Davis v Gell (1924) 35 CLR 275 at 285 per Isaacs ACJ; Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552 at 557 per Jordan CJ. 117. (1698) 1 Ld Raym 374 at 378; 91 ER 1147 at 1149–50. 118. Holdsworth, History of English Law, Vol 8, 1925, pp 390–1; and see Soare v Ashley [1955] VLR 438 at 440 per Herring CJ. 119. See the discussion by Diplock J in Berry v British Transport Commn [1961] 1 QB 149 at 162–4; [1960] 3 All ER 322 at 326–8 (rev’d on other grounds [1962] 1 QB 306; [1961] 3 All ER 65 (CA) ). 120. Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 at 689 per Bowen LJ (CA); Houghton v Oakley (1900) 21 LR (NSW) (L) 26 at 30 per Owen J (FC); Wiffen v Bailey [1915] 1 KB 600 at 607–8 per Buckley LJ (CA). 121. Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552 at 558 per Jordan CJ (FC); Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 386 per Dixon J. 122. Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552. 123. Jones v Givin (1713) Gil Cas 185 at 224–7; 93 ER 300 at 311–12 per Parker CJ. 124. Berry v British Transport Commn [1961] 1 QB 149 at 162; [1960] 3 All ER 322 at 326 per Diplock J. 125. See Martin v Watson [1996] AC 74; [1995] 3 All ER 559 (HL). 126. Rayson v South London Tramways Co [1893] 2 QB 304, as explained in Wiffen v Bailey [1915] 1 KB 600 (CA). 127. Wiffen v Bailey [1915] 1 KB 600 (CA). 128. See the 3rd edition of this work, at 17.18. 129. The action was held to be maintainable in Brown v Chapman (1762) 1 W Bl 427; 96 ER 243; see also Johnson v Emerson (1871) LR 6 Ex 329. 130. This parallel between slander actionable per se and malicious prosecution is drawn by Bowen LJ in Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 at 692 (CA). 131. Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 (CA); QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 at 256 per Macrossan J. 132. A second reason was that the costs awarded in favour of the successful party were a complete recompense for the financial disadvantage of defending the proceedings, but this reason is also

open to question: see 25.21. 133. In the words of Buckley LJ in Wiffen v Bailey [1915] 1 KB 600 at 607, in civil proceedings ‘the poison and the antidote are presented simultaneously’. 134. Fenn v Paul (1932) 32 SR (NSW) 315 (FC). 135. Jones v Foreman [1917] NZLR 798 (FC). 136. Barker v Sands (1890) 16 VLR 719; Cross v The Commercial Agency Ltd (1900) 18 NZLR 153. 137. [1990] VR 257. 138. Ibid at 267 per Kaye and Beach JJ; to the same effect are the remarks of Ormiston J at 289: ‘the risk that maliciously made allegations in civil proceedings may cause perceptible harm to a person’s reputation is now a real risk under current law and procedures’, and of Lord Steyn in Gregory v Portsmouth City Council [2000] 1 AC 419 at 428 and 432; 1 All ER 560 at 566 and 570. 139. Ibid at 267–8 per Kaye and Beach JJ, at 288–9 per Ormiston J. 140. But cf the comments of Diplock J in Berry v British Transport Commn [1961] 1 QB 149 at 161; [1960] 3 All ER 322 at 325–6 that for Holt CJ actual loss of liberty had to be proved. 141. Rayson v South London Tramways Co [1893] 2 QB 304; Houghton v Oakley (1900) 21 LR (NSW) (L) 26 (FC); Wiffen v Bailey [1915] 1 KB 600 (CA). 142. (1698) 1 Ld Raym 374 at 378; 91 ER 1147 at 1150. 143. Berry v British Transport Commn [1962] 1 QB 306; [1961] 3 All ER 65 (CA). 144. Coleman v Buckingham’s Ltd [1963] SR (NSW) 171 (FC). 145. [2000] 1 AC 419; 1 All ER 560. 146. Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 (CA), followed in Houghton v Oakley (1900) 21 LR (NSW) (L) 26 (FC) and Jones v Foreman [1917] NZLR 798 (FC). 147. Restatement, Torts 2d, 674. 148. NZ Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 at 88-9 per Cooke J, but cf at 98 per Casey J (CA). 149. [2000] 1 AC 419; 1 All ER 560. 150. Ibid at 433; 571 per Lord Steyn. 151. Berry v British Transport Commn [1962] 1 QB 306 at 328; [1961] 3 All ER 65 at 75-6 per Devlin LJ (CA); Rawlinson v Purnell Jenkinson & Roscoe [1999] 1 NZLR 479 at 488 per Hammond J. 152. [1990] VR 257; see 25.18. 153. Walton v Gardiner (1993) 177 CLR 378 at 392-3; 112 ALR 289 at 298. 154. A further reason for the title is to distinguish this tort from that of malicious prosecution, which is a form of direct abuse of process: see Spautz v Gibbs (1990) 21 NSWLR 230 at 244 per Priestley JA (CA) (rev’d on other grounds sub nom Williams v Spautz (1992) 174 CLR 509; 107 ALR 635). 155. (1838) 4 Bing NC 212; 132 ER 769. 156. (1911) 13 CLR 35.

157. Ibid at 55–6 per Griffith CJ, at 70 per O’Connor J, at 91 per Isaacs J. 158. (1915) 20 CLR 509. 159. Ibid at 524. 160. Grainger v Hill (1838) 4 Bing NC 212 at 221; 132 ER 767 at 773 per Tindal CJ; Grimwade v Victoria (1997) 90 A Crim R 526 at 537 per Harper J (Vic SC). 161. Gilding v Eyre (1861) 10 CB (NS) 592 at 604; 142 ER 584 at 589 per Willes J; Grimwade v Victoria (1997) 90 A Crim R 526 at 536 per Harper J (Vic SC). 162. Williams v Spautz (1992) 174 CLR 509 at 525; 107 ALR 635 at 645. 163. QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245; equally difficult to support are the views expressed in interlocutory proceedings to the same effect in Speed Seal Products Ltd v Paddington [1986] 1 All ER 91 (CA) and Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694–6 per Gleeson CJ (CA). 164. See also Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 115, 123 per Clarke JA (CA); Butler v Simmons Crowley & Galvin [2000] 2 Qd R 252 at [24] (CA). 165. Cunningham v Clarke (NZ HC, Gallen J, 23 March 1990, unreported) transcript p 45. 166. Those circumstances have been discussed in 25.1. 167. Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 470; [1989] 3 All ER 14 at 50 (CA); see also Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281 at 292 (CA). 168. Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92. 169. Damages were subsequently assessed as being in excess of $100,000: Hamer-Mathew v Gulabrai (No 2) (1995) Aust Torts Reports 81-334. 170. Cf Grimwade v Victoria (1997) 90 A Crim R 526 at 538 where Harper J, in the Supreme Court of Victoria, struck out a claim for collateral abuse of process because the only specific allegation of abuse was that the prosecutor of criminal proceedings was motivated by a desire to damage the plaintiff’s reputation. 171. Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91 per Isaacs J. 172. Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; 163 ALR 744 at [64] (FC). 173. (1996) 17 WAR 62. Cf Catto v Hampton Australia Ltd (No 3) (2004) 89 SASR 234 at [165]– [167] per Vanstone J (the alleged ultimate purpose of the defendants so closely conformed to the relief which they sought in the impugned proceedings as to deny the commission of this tort). 174. Cf Goldsmith v Sperrings Ltd [1977] 2 All ER 566 at 586 per Bridge LJ (CA). 175. Emanuele v Hedley (1998) 179 FCR 290 at [44] (FC); Leerdam v Noori (2009) 255 ALR 553 at [29]–[44] per Spigelman CJ, with the concurrence of Allsop P and Macfarlan JA (NSWCA). 176. Since the action is one in case — Grainger v Hill (1838) 4 Bing NC 212 at 219; 132 ER 769 at 772 per Tindal CJ — it lies on the plaintiff to prove each head of loss. 177. QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 at 261 per Macrossan J. 178. NZ Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 at 88–9 per Cooke J (CA); see 25.21. 179. Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 375 per Hunt J. 180. See generally Cockburn and Thomas, ‘Personal Liability of Public Officers in the Tort of

Misfeasance in Public Office’ (2001) 9 TLJ 80 and 245; Sadler, ‘Intentional Abuse of Public Authority: A Tale of Three Rivers’ (2001) 21 ABR 151; Aronson, ‘Misfeasance in Public Office: A Very Peculiar Tort’ (2011) 35 MULRev 1; Vines, ‘Misfeasance in Public Office: Old Tort, New Tricks?’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, ch 11. 181. If the judicial officer acted outside his or her jurisdiction, an action might lie in trespass, such as for false imprisonment: see 6.51. 182. See the discussion in, eg, Davis v Capper (1829) 10 B & C 28; 109 ER 362; Linford v Fitzroy (1849) 13 QB 240; 116 ER 1255 and the comment of Diplock J in O’Connor v Isaacs [1956] 2 QB 288 at 312; 1 All ER 513 at 524 (aff’d [1956] 2 QB 288; 2 All ER 417 (CA)). 183. (1828) 5 Bing 91 at 107; 130 ER 995 at 1001 per Best CJ. 184. That these actions were species of the same genus is pointed out by Lutwyche J in Fitzgerald v Boyle (1861) 1 QSCR 19 at 24 and by Kirby P in Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 724. 185. Re McC [1985] AC 528 at 541; [1984] 3 All ER 908 at 916 per Lord Bridge, at 559; 929 per Lord Templeman, cf at 552–3; 924–5 per Lord Brandon (HL). 186. Rawlinson v Rice (No 2) [1998] 1 NZLR 454 (CA); see also Cannon v Tahche (2002) 5 VR 317 at [48]. 187. See the comment of Nourse LJ in Jones v Swansea City Council [1989] 3 All ER 162 at 186, quoted with approval by Lord Steyn in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 190; [2000] 3 All ER 1 at 7 (HL). 188. See Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 724–5 per Kirby P (CA); Chan v Minister for Immigration (1991) 31 FCR 29 at 40–1; 103 ALR 499 at 510–1 per Einfeld J; R v Knowsley Metropolitan Borough Council, Ex parte Maguire (1992) 90 LGR 653 at 664–5 per Schiemann J (Eng HC). 189. Pemberton v A-G [1978] Tas SR 1 at 29 per Chambers J; Dunlop v Woollahra Municipal Council [1982] AC 158 at 172; [1981] 1 All ER 1202 at 1210 (PC); see also Northern Territory v Mengel (1995) 185 CLR 307 at 346; 129 ALR 1 at 17–18. 190. [1973] VR 715 at 720. 191. E v K [1995] 2 NZLR 239 at 249. 192. In Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1 the issue was accepted without question. 193. Cornwall v Rowan (2004) 90 SASR 269 at [257] (FC). 194. Chan v Minister for Immigration (1991) 31 FCR 29 at 39; 103 ALR 499 at 509 per Einfeld J; see also Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 All ER 585 (CA). 195. Racz v Home Office [1994] 2 AC 45; 1 All ER 97 (HL). 196. Hobson v Attorney-General [2007] 1 NZLR 374 (CA). 197. Farrington v Thomson [1959] VR 286; De Reus v Gray (2003) 9 VR 432 (CA). 198. Garrett v A-G [1997] 2 NZLR 332 (CA); Odhavji Estate v Woodhouse (2003) 233 DLR (4th) 193 (SCC); and see Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122; [2001] 3 All ER 183 (HL), where the point was admitted.

199.

Pemberton v A-G [1978] Tas SR 1 at 14 per Neasey J (FC); cf Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 and the passing remark of Lord Bridge in Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240; 1 All ER 1025 at 1032 that a decision to suspend a police officer from duty, if done maliciously, would be capable of constituting this tort.

200. Cannon v Tahche (2002) 5 VR 317 at [61]; Leerdam v Noori (2009) 227 FLR 210; 255 ALR 553 (NSWCA). 201. Calveley v Chief Constable of Merseyside, above; see also Henderson v McCafferty [2002] 1 Qd R 170 at [33] per Williams J (President of the Queensland Law Society held not to be a public officer for these purposes). 202. Thus excluding a body corporate established for commercial purposes: Society of Lloyd’s v Henderson [2008] 1 WLR 2255 (CA). 203. Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226 per McDonald J; and see Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2000] 3 All ER 1 (HL). 204. Dunlop v Woollahra Municipal Council [1982] AC 158 at 172; [1981] 1 All ER 1202 at 1210 (PC); Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1; Deepcliffe Pty Ltd v Gold Coast City Council (2001) 118 LGERA 117 (Qld CA) (although neither the council nor the individual councillors in the two last mentioned cases were held to have the necessary intent). 205. Jones v Swansea City Council [1989] 3 All ER 162 at 174–5 (CA), aff’d on this point [1990] 3 All ER 737 at 741 per Lord Lowry (HL). 206. Jones v Swansea City Council [1990] 3 All ER 737 at 741 per Lord Lowry (HL). 207. Because the tort is one of intention, the employer would not normally be liable unless it had authorised the conduct, at least impliedly: Rogers v Legal Services Commission (1995) 64 SASR 572 at 587 per Lander J (FC), but cf Racz v Home Office [1994] 2 AC 45; 1 All ER 97 (HL) in which vicarious liability was imposed because the employees were acting in the course of their employment and South Australia v Lampard-Trevorrow (2010) 106 SASR 331 (FC) at [275] (state held vicariously liable for the conduct of the respective ‘public officers’ because their conduct was ‘an appropriate exercise of the statutory powers’); on vicarious liability generally, see Chapter 26. 208. Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 191; [2000] 3 All ER 1 at 8 per Lord Steyn (HL). 209. Bennett v Metropolitan Police Commissioner [1995] 2 All ER 1 at 13–14 per Rattee J; Roncarelli v Duplessis (1959) 16 DLR (2d) 689 (SCC); Cornwall v Rowan (2004) 90 SASR 269 at [251]– [256] (FC). 210. Which in this context may be constituted by a denial of procedural fairness: Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 at [45]. There having been no findings of fact by the trial judge on that issue, the matter was remitted for retrial; the Full Court of the Federal Court, overturning the decision of the Norfolk Island Supreme Court, held that there was no proof that the defendant had known of, or been recklessly indifferent to, the unlawfulness of his actions: see Sanders v Snell (2003) 198 ALR 560. 211. Northern Territory v Mengel (1995) 185 CLR 307 at 347; 129 ALR 1 at 19. 212. See Farrington v Thomson [1959] VR 286 at 293 per Smith J, but cf Tampion v Anderson [1973] VR 715 at 720 per Smith J (FC); Little v Law Institute of Victoria (No 3) [1990] VR 257 at 270 per Kaye and Beach JJ (App Div). 213. Northern Territory v Mengel (1995) 185 CLR 307 at 346–7; 129 ALR 1 at 18.

214. (1995) 185 CLR 307 at 347; 129 ALR 1 at 18–19. 215. It is suggested that the Full Court in South Australia, in South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [263]–[264] placed undue emphasis on a comment in the High Court in Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 at [38] to conclude that the tort requires no more than ‘a foreseeable risk of harm’. 216. [1997] 2 NZLR 332 at 349. 217. [2003] 2 AC 1; [2000] 3 All ER 1. 218. Odhavji Estate v Woodhouse (2003) 233 DLR (4th) 193 at [38] per Iacobucci J. 219. Akenzua v Secretary of State for the Home Department [2003] 1 All ER 35. 220. This aspect of liability thus parallels the knowledge required of a contract with the performance of which the defendant is alleged to have interfered: see 21.10 and cf Whittaker v Child Support Registrar (2010) 264 ALR 473 at [221] per Lindgren J (Fed Ct). 221. Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453. 222. Hobson v Attorney-General [2007] 1 NZLR 374 (CA). 223. Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 236–7; [2000] 3 All ER 1 at 50 per Lord Millett (HL). 224. Farrington v Thomson [1959] VR 286 at 293 per Smith J; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 231; [2000] 3 All ER 1 at 45 per Lord Hobhouse (HL). 225. Watkins v Home Office [2006] 2 AC 395; 2 All ER 353. 226. Brasyer v Maclean (1875) LR 6 PC 398; Karagozlu v Metropolitan Police Commissioner [2007] 2 All ER 1055 (CA) (both cases of wrongful loss of liberty). 227. De Reus v Gray (2003) 9 VR 432 (CA). 228. For example, Smith v East Elloe Rural District Council [1956] AC 736; 1 All ER 855 (HL) (compulsory acquisition of land). 229. Cornwall v Rowan (2004) 90 SASR 269 at [729]–[734] (FC). 230. Roncarelli v Duplessis (1959) 16 DLR (2d) 689 (SCC). 231. McGillivray v Kimber (1915) 26 DLR 164 (SCC). 232. Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 All ER 585 (CA). 233. Partridge v General Medical Council (1890) 25 QBD 90 (action dismissed for lack of malice); and see Little v Law Institute of Victoria (No 3) [1990] VR 257 (App Div), in which the action related to the defendant’s attempts to restrain the plaintiff from practising as a solicitor. 234. Farrington v Thomson [1959] VR 286. 235. Longley v Minister for National Revenue (1999) 176 DLR (4th) 445 at [133]–[135] per Quijano J (BC SC). 236. Cf Jones v Swansea City Council [1990] 3 All ER 737 (HL), in which the plaintiff failed to show malice on the part of the council. 237. Rowan v Cornwall (No 5) (2002) 82 SASR 152 at [712] per Debelle J (the judge’s award was not challenged on appeal: Cornwall v Rowan (2004) 90 SASR 269 at [787] (FC)). 238. JC Scott Constructions v Mermaid Waters Tavern Pty Ltd [1984] 2 Qd R 413 at 429 per

McPherson J; see, to the same effect, Ostler J in Sievwright v Ward [1935] NZLR 43 at 46–7. 239. For the history of the tort see Holdsworth, A History of English Law, Vol 8, 1925, pp 397–402; Winfield, ‘The History of Maintenance and Champerty’ (1919) 35 LQR 50. 240. See Brew v Whitlock [1967] VR 449 at 459 per Gillard and McInerney JJ (FC). The question was left open by the High Court in Clyne v NSW Bar Association (1960) 104 CLR 186 at 203. 241. Brew v Whitlock [1967] VR 449 at 454 per Gillard and McInerney JJ (FC); see also Sibthorpe v Southwark London Borough Council [2011] 2 All ER 240 (CA) (conditional fee agreement held enforceable). 242. Civil Liability Act 2002 (NSW) Sch 2 cl 2; Wrongs Act 1958 (Vic) s 32; Civil Law (Wrongs) Act 2002 (ACT) s 221. 243. [New Zealand] Law Commission, Subsidising Litigation, NZLC R72, 2001, [11]. 244. Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 384; 229 ALR 58; see further Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 18.33. 245. See, eg, Lovell v WA Police Union of Workers (1991) Aust Torts Reports 81-073 (WASC); Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1996) 137 ALR 260; (aff’d (1997) 72 FCR 262; 142 ALR 198 (FC)). 246. Neville v London ‘Express’ Newspaper Ltd [1919] AC 368 at 395 per Lord Atkinson (HL). 247. Bradlaugh v Newdegate (1883) 11 QBD 1 at 9–10 per Lord Coleridge CJ. 248. Martell v Consett Iron Co Ltd [1955] Ch 363 at 399–400; 1 All ER 481 at 488–9 per Jenkins LJ (CA). 249. [1895] 1 QB 339 at 342 (CA). 250. See also Stevens v Keogh (1946) 72 CLR 1 at 28 per Dixon J; Brew v Whitlock [1967] VR 449 at 454–5 per Gillard and McInerney JJ (FC); Giles v Thompson [1994] 1 AC 142 at 164; [1993] 3 All ER 321 at 360 per Lord Mustill (HL). 251. Grant v Thompson (1895) 72 LT 264. 252. Bevan Ashford v Geoff Yeandle (Contractors) Ltd [1999] Ch 239 at 249–50; [1998] 3 All ER 238 at 246–7 per Scott V-C; Carob Industries Pty Ltd v Simto Pty Ltd (SC(WA), 11 December 1997, Anderson J, unreported). 253. Savill Bros Ltd v Langman (1898) 79 LT 44 (CA); Picton Jones & Co v Arcadia Developments Ltd [1989] 1 EGLR 43. 254. Bandwill Pty Ltd v Spencer-Laitt (2000) 23 WAR 390; Quach v Huntof Pty Ltd (2000) 32 MVR 263 (NSWSC). 255. (1996) 137 ALR 260; (aff’d (1997) 72 FCR 262; 142 ALR 198 (FC)). 256. [1984] 2 Qd R 413. 257. Ibid at 429–30 per McPherson J; aff’d at 439 per Connolly J (FC). 258. [1994] 1 AC 142; [1993] 3 All ER 321. 259. See the comment of Lord Mustill in Giles v Thompson [1994] 1 AC 142 at 163–4; [1993] 3 All ER 321 at 360, but cf the Factortame case, referred to in fn 260. 260. But cf R (Factortame Ltd) v Secretary of State for the Environment (No 8) [2003] QB 381; [2002] 4 All ER 97 (CA), in which an agreement by a litigant with its accountants for the latter to

be paid 8 per cent of the award to cover its costs was upheld. 261. Rogerson v Law Society of the Northern Territory (1991) 1 NTLR 100. 262. Sievwright v Ward [1935] NZLR 43 at 47 per Ostler J. 263. Clyne v NSW Bar Association (1960) 104 CLR 186 at 203; Re Sheehan (1990) 13 Fam LR 736 at 749 per Fogarty J (Fam Ct); aff’d (1991) FLC 92-221 at 78,528 (Fam Ct, FC). 264. Thai Trading Co v Taylor [1998] QB 781; 3 All ER 65 (CA); and see the Courts and Legal Services Act 1990 (UK) ss 58–58A, which regulate conditional fee agreements, whereby the fees and expenses of arbitration or litigation may become payable only on success of the action, and which may provide for a success fee of up to 100 per cent of the fee otherwise payable. 265. This common law principle has been incorporated into legislation in some states: see Legal Profession Act 1987 (NSW) s 186; Legal Practitioners Act 1981 (SA) s 42(6)(c); Legal Practice Act 1996 (Vic) ss 97, 98. 266. Glegg v Bromley [1912] 3 KB 474 (CA). 267. Grovewood Holdings plc v James Capel & Co Ltd [1995] Ch 80; [1994] 4 All ER 417. 268. Harris v Brisco (1886) 17 QBD 504 (CA). 269. Stevens v Keogh (1946) 72 CLR 1. 270. Schultz v Ocean Accident & Guarantee Corp Ltd (1923) 23 SR (NSW) 153 at 168 per Ferguson J (FC). 271. Brew v Whitlock [1967] VR 449 at 456–7 per Gillard and McInerney JJ (FC). 272. Martell v Consett Iron Co Ltd [1955] Ch 363 at 387; [1954] 3 All ER 339 at 350 per Danckwerts J (aff’d [1955] Ch 362; 1 All ER 481 (CA)). 273. Bradlaugh v Newdegate (1883) 11 QBD 1 at 11 per Lord Coleridge CJ; and see Schultz v Ocean Accident & Guarantee Corp Ltd (1923) 23 SR (NSW) 153 at 162–4 per Ferguson J (FC). 274. Re Bulli Coal Mining Co (1897) 18 LR (NSW) (Eq) 146 (FC) (aff’d [1899] AC 351 (PC)) (champertous agreement between lessee and lessor of coal mine concerning action against trespasser held justified). 275. Hill v Archbold [1968] 1 QB 686; [1967] 3 All ER 110 (CA) (members of trade union); Roux v Australian Broadcasting Commn [1992] 2 VR 577 at 607 per Byrne J (employer and employee); cf Alabaster v Harness [1895] 1 QB 339 (CA). 276. Maloney v Housing Industry Association Ltd (SC(Tas), Crawford J, 4 December 1992, unreported); the action which that defendant was held to be justified in assisting nevertheless concluded in favour of the plaintiff: see Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163, discussed in 13.68. 277. Martell v Consett Iron Co Ltd [1955] Ch 363 at 417–18; 1 All ER 481 at 500 per Jenkins LJ (CA). 278. JC Scott Constructions v Mermaid Waters Tavern Pty Ltd [1984] 2 Qd R 413 at 430 per McPherson J (aff’d at 439 per Connolly J (FC)). 279. Re Timothy’s Pty Ltd [1981] 2 NSWLR 706; Commonwealth v Ling (1993) 44 FCR 397 at 432; 118 ALR 309 at 342–3 per Beaumont J; and see Trendtex Trading Corp v Credit Suisse [1982] AC 679; [1981] 3 All ER 520 (HL). 280. Monk v ANZ Banking Group Ltd (1994) 34 NSWLR 148; SA Management Corp v Sheahan (1995) 16 ACSR 45 at 57–8 per Debelle J (SASC); National Mutual Property Services

(Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 at 537–9 per Lindgren J (Fed Ct); Beatty v Brashs Pty Ltd [1998] 2 VR 201. 281. Body Corporate 16113 v Auckland City Council [2008] 1 NZLR 838. 282. Advanced Technology Structures Ltd v Cray Valley Products Ltd [1993] BCLC 723 at 733–4 (CA); and see Stocznia Gdanska SA v Latvian Shipping Co (No 2) [1999] 3 All ER 822 at 827–8 per Toulson J. 283. Bankruptcy Act 1966 (Cth) s 134(1)(a); Insolvency Act 2006 (NZ) s 217; Corporations Act 2001 (Cth) ss 477(2)(c); Companies Act 1993 (NZ) s 260(2) and Sch 6, para (g). 284. Seear v Lawson (1880) 15 Ch D 426 (CA); Re Park Gate Waggon Works Co (1881) 17 Ch D 234 (CA); Guy v Churchill (1888) 40 Ch D 481. 285. Norglen Ltd v Reeds Rains Prudential Ltd [1999] 2 AC 1 at 11–12; [1998] 1 All ER 218 at 224–5 per Lord Hoffmann. 286. For the most recent discussion of this exception, see Re Daniel Efrat Consulting Services Pty Ltd; Ex parte Hawke (1999) 91 FCR 154; 162 ALR 429 at [26]–[31] per Branson J; the judge further considered (at [41]) that the exception also applied to a sale by a receiver under the Corporations Act 2001 (Cth) s 420. 287. Stone v Angus [1994] 2 NZLR 202 at 204 per Henry J. 288. See, eg, the Corporations Act 2001 (Cth) ss 588M and 588W, discussed by Drummond J in Re Movitor Pty Ltd v Sims (1996) 64 FCR 380 at 392; 19 ACSR 440 at 450. 289. Re Oasis Merchandising Services Ltd [1998] Ch 170; [1997] 1 All ER 1009 (CA). 290. [1919] AC 368 (HL). 291. See Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1996) 137 ALR 260 at 279 per Drummond J (aff’d (1997) 72 FCR 262; 142 ALR 198 (FC)); the plaintiff in that case was unable to show any such loss, either present or threatened. 292. The court also held that the success of the assisted action is not a bar to proceedings for maintenance, but it is difficult to imagine a case where the maintained action succeeded, but the plaintiff suffered special damage: cf Birkett J in Constantine v Imperial Hotels Ltd [1944] KB 693 at 702; 2 All ER 171 at 175. 293. [1935] NZLR 43 at 50 per Ostler J. 294. [1984] 2 Qd R 413; see 25.35. 295. Ibid at 431 per McPherson J.

PART VIII Remedies and Parties Chapter 26

Vicarious Liability

Chapter 27

Remedies

Chapter 28

Extinction of Remedies

Chapter 29

Parties

[page 735]

CHAPTER 26 Vicarious Liability1

Importance of the Distinction between Employees and Independent Contractors 26.1 For the present purpose the law generally2 divides persons into two groups: 1.

employees, who are employed to perform work under a contract of service; and

2.

independent contractors, who undertake work for another pursuant to a contract for services.

The distinction is important for the following reason. If an employee commits a tort in the course of employment, then the employer is liable regardless of whether he or she has personally committed a tort: … every act which is done by [an employee] in the course of his duty is regarded as done by his [employer’s] orders, and consequently is the same as if it were the [employer’s] own act …3

This is, of course, the clearest case of a strict tortious liability, and may be regarded as a judicial decision of policy that the employer is to bear the financial responsibility for those torts committed by employees in the course of conducting the enterprise — both because the employer is better able to stand the loss (or can insure against it) and pass that cost on to the public in the form of increased prices, and because the employer will be encouraged to maintain higher standards of conduct in the running of the business.4

26.2 If the act complained of is not that of an employee, then the employer

is not, without more, liable: an action can be maintained only if the employer has, in the circumstances, committed a tort, or if the employer, in the particular circumstances of the case, is under what is known as a ‘nondelegable’ duty: see 26.26. The employer, who may be vicariously liable for the torts of an employee, is generally not liable for the torts of those who are regarded as independent contractors: The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which

[page 736] the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.5

An attempt to blur this distinction between an employee and an independent contractor was rejected by the High Court in Sweeney v Boylan Nominees Pty Ltd.6 The appellant was injured by the careless repair of a refrigerator in a service station. The work had been carried out by a Mr Comninos, for the respondent company, the owner of the refrigerator. It was argued that Mr Comninos represented the respondent in carrying out the repairs, and that this representation was sufficient to impose vicarious liability on the respondent, in the same way that a principal may be liable for the torts of an agent: see 26.13. A majority of the High Court, however, considered that this argument would impose unacceptably wide liability on those who engage independent contractors, and that the rules relating to the liability of a principal for the acts of an agent ought not be widened.7

Criteria for Distinguishing Employees from Independent Contractors No single factor conclusive 26.3 Lord Denning once observed8 that, while it is often easy to recognise a contract of service when confronted by one, it is not quite so easy to explain in precise terms just how it differs from a contract for services.

We are able without hesitation to say that a ship’s master, a chauffeur and a reporter on the staff of a newspaper are all employed under a contract of service, and that a ship’s pilot, a taxi driver and a newspaper contributor are employed under a contract for services, but wherein lies the difference?

The formula initially and sometimes exclusively relied on by courts to mark the distinction was ‘control’. The worker was an employee if the work done was ‘subject to the control and direction’ of the employer ‘as to the manner in which it [was] to be done’.9 The worker, it was said, was told not only what to do, but also how to do it.10 The ultimate test was said to lie ‘in the nature and degree of detailed control over the person alleged to be an employee’.11 By comparison, where the person doing the [page 737] work agreed only to produce a given result but retained the right of selfcontrol in the actual execution of the work, that person was an independent contractor.12 In a simple industrial society, where work was done largely by labourers or craftsmen under the directions of employers who had the same or even greater technical skill, it would ordinarily be enough to say that the employer could tell the employee not merely what task to perform but also how to perform it: if the employer could do both these things, the employee was an employee. But since the middle of the twentieth century a new class of manager, as distinct from owner, has arisen in industry, and many employees have some technical skill which is often not possessed by any of their employers. As a result, the relationship has become more subtle and hardly capable of exact definition: the test formerly applied will not necessarily be adequate.13 In short, ‘control’ has become a legal fiction rather than a technical reality.

26.4 In deference to these developments the courts have discarded the control test as their magic touchstone.14 This is not to say that control is no longer a factor — it is still regarded as an important and, on occasion, decisive, consideration. But it is not now regarded as the only relevant factor. The practice of the courts is to examine a variety of indicia and to consider the totality of the relationship between the parties.15 This approach is to be

seen in Hollis v Vabu Pty Ltd.16 The appellant had been struck down and injured by a bicycle courier, who was identifiable solely by the jacket he was wearing at the time. The appellant claimed that the courier was an employee of the respondent company, rather than an independent contractor, an argument which succeeded in the High Court. The various factors which weighed with the court in coming to that conclusion included the fact that the couriers were not providing skilled labour, and that they had little control over the way in which they performed their work, and that the control which the company exercised related not merely to incidental and collateral matters but involved ‘the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation’ of the appellant’s business.17 Further factors which the court regarded as important were that the couriers’ uniforms presented them to the public as an emanation of the respondent company, that the company superintended their remuneration, and that, although each courier had to provide his or her own vehicle, in the case of bicycle couriers the cost was not substantial, and the vehicle was in any case available to the courier for personal use at all times.18

26.5 This decision may be contrasted with that in Climaze Holdings Pty Ltd v Dyson.19 In considering whether the respondent roofing plumber was an employee of the appellant or an independent contractor, Steytler J noted that the appellant [page 738] controlled not only what the respondent did, but (on occasion) how he did it, that the respondent did not undertake work for anyone other than the appellant, and that the appellant made contributions to the respondent’s superannuation. While acknowledging that each of these indicia pointed to a relationship of employer and employee, as found by the trial judge, his Honour considered that they were outweighed by the fact that the respondent provided his services in partnership with his son, and that the partnership had been created in order to overcome difficulties which arose when the appellant had been asked to employ the son directly. The judge also observed that the respondent was entitled to subcontract some of the work provided by the appellant, and exercised that right from time to time. The Full Court therefore

concluded that the relationship was that of principal and independent contractor.20 No ‘check-list’ of factors exists which will provide an automatic answer in every case. Among the determinants are the extent to which either party can control the details of the work,21 whether the method of payment is on a time or a job basis,22 whose tools, equipment and premises are to be used,23 the skill called for in the work, the intention of the parties, the freedom of selection of labour by the employer,24 and whether the employment is for an indefinite period so that it is permanent or semi-permanent in nature.25 Other factors include the freedom to work for other employers26 and which party carries public liability insurance.27

26.6 A further factor which bedevils discussion of the difference between employees and independent contractors is that the issue arises in a wide variety of differing purposes. Thus, it may be necessary to draw the distinction in order to determine whether a person is entitled to make a claim for compensation under workers’ compensation legislation,28 whether the principal is obliged to contribute to the worker’s superannuation fund,29 or whether the principal is required to deduct income tax from the remuneration paid to the worker.30 While the issue of whether the worker is an employee or an independent contractor may appear to be the same in all cases in a formal sense, the policy imperatives clearly differ considerably in each situation. Until recently, the differences in policy have not been adverted to [page 739] by the courts, and a decision on liability to income tax might be applied to a matter relating to the recovery of compensation for personal injury as though the issue in each case were identical. It is to be hoped that the decision of the High Court in Hollis v Vabu Pty Ltd31 might herald something of a change in judicial attitude. In earlier and unrelated proceedings on the question of the liability of Vabu Pty Ltd to provide payments towards the superannuation funds of the couriers, the New South Wales Court of Appeal had held that the relationship between the company and the couriers was that of principal and independent contractor.32 But in the action against the company for personal injury caused by a bicycle courier, the High Court observed33 that the

decision on the taxation matter was a conclusion of law alone, and could not stand in the way of a finding on the facts proved in the personal injury action.

Some particular cases examined Hospital staffs 26.7

As was forcefully stated in Albrighton v Royal Prince Alfred Hospital,34 the concept has long since been eroded that a hospital fulfils its duty of care towards its patients merely by selecting and appointing competent medical staff. Neither is it possible any longer to exempt a hospital from responsibility for the tortious conduct of its medical staff in the course of their duties in the hospital on the basis that it cannot be shown that the hospital has the power (whether or not it exercises it) of directing staff as to the manner in which they should carry out their work. After much uncertainty it is now settled that nurses,35 radiographers,36 house-surgeons,37 and assistant medical officers38 in the full-time service of hospitals are employees. Part-time anaesthetists have also been held to be employees on the ground that they are members of the organisation of the hospital.39 Surgeons and consultants under the Commonwealth Medicare Scheme, even though only engaged part-time or occasionally, will for the same reason be employees of the hospital authority.40 It is only when the surgeon or consultant treats the patient by virtue of a contract with the patient that the hospital authority is not answerable for his or her torts.41 The liability of the hospital arises out of its obligation to use reasonable care in the treatment of patients. The fact that, in the case of a hospital, the obligation might well have been undertaken by a corporation or a body of trustees or governors, will not enable it to escape liability in the event of a breach. Nor is it any answer for the hospital to say that the obligation is one which, on its face, it could never personally [page 740] perform.42 The obligation is, moreover, non-delegable43 so that the hospital

remains liable for the negligence of doctors, surgeons and other medical staff employed by it even under a contract for services44 (subject only to the exclusion noted above that they are not employed directly by the patient).

26.8 The ‘organisation’ test is sometimes invoked in cases where the defendant is a hospital or other institution to prove that the contract is one of service and that, therefore, the defendant is responsible.45 This test appears to have originated with Lord Denning who said that: [O]ne feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under the contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.46

The ‘organisation’ test has been used by some courts as an alternative to the ‘control’ test to determine who is an employee and who an independent contractor.47 The approach most recently endorsed by the High Court is to treat the element of organisation simply as an additional factor to be weighed along with control in deciding whether the relationship is one of employee or independent contractor.48

Borrowed employees 26.9 It is often difficult to decide whose employee a person is when one who is clearly an employee is lent by one employer to another. The authoritative decision is Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd.49 The board owned many mobile cranes, each handled by skilled operators engaged and paid by it. In the ordinary course of its business, it hired out a crane to the respondents, a stevedoring company, for use in unloading a ship. The power to dismiss remained with the board, but the contract provided that the driver was to be the employee of the hirers. While loading the cargo, the driver was under the immediate control of the hirers in the sense that the hirers could tell him which boxes to load and where to place them, but they could not tell him how to manipulate the controls of the crane. Through the negligent handling of the crane by the driver while loading, a third party was injured. The House of Lords was called upon to decide from which of the two, the board or the hirers, the plaintiff was to recover his damages: that is, whose employee was the driver at the time of the accident? It was held that the board was solely liable.

This is not an inevitable verdict although a fairly strong presumption exists that a worker remains the employee of the general or permanent employer even where another employer borrows the services of the worker. The test in each case appears to be, at least in theory, the classic control test — the employer is the person who has [page 741] the right to control not merely what is done but how it is to be done50 — which must be distinguished from merely supervising the employee.51 It is clearly possible to split control between the two employers, at least in situations where it cannot be said that the employee, in any real sense, alternates between being permanently employed by the one and temporarily employed by the other. Until recently, the courts have invariably opted to treat one or other employer as the sole employer for the time being.52 In most cases where a worker is lent with a machine or where a skilled worker53 is lent so as to exercise a skill for the benefit of the temporary employer, a transfer of control is deemed not to take place. This has been explained on the basis that the parties do not contemplate a transfer,54 there being an understanding that the worker is to obey the directions of the person with whom the permanent employer has a contract, but only in so far as is necessary or convenient for the purpose of carrying out the contract. Where that is the position, the one who receives directions from the other person does not receive them as an employee of that person, but receives them as employee of his employer.55

26.10

However, in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd,56 the English Court of Appeal has held that in some circumstances, of which the facts before the court were an illustration, there is no real transfer of employment, and two employers could both be entitled and obliged to control the employee’s relevant negligent act in order to seek to prevent it, and consequently both would be vicariously liable. The plaintiff engaged a contractor to install air-conditioning in its factory. That prime contractor engaged a subcontractor to carry out the ducting work, which in turn employed a labour-only company to supply skilled workers. The labouronly company retained overall control over its workers’ conduct, while the

ducting subcontractor supervised the specific work on that job. One of the workers negligently caused the factory to flood. On the plaintiff’s claim for damages, the court held that both the subcontractor and the labour-only company exercised sufficient control over the worker to render them vicariously liable. It further held that, as between the two employers there would be equal contribution.57 [page 742] Whether it is one employer or two which is found to be vicariously liable, each case depends ultimately on its merits; it is a question of fact, to be decided on the nature of the arrangements and the degree of control exercised over the worker,58 whether the general employer has, on a particular occasion or for a particular purpose, transferred the worker’s services to the temporary employer so as to constitute that worker the employee of the other with consequent liability for any negligent acts. In McDonald v Commonwealth59 the services of a driver along with a vehicle were let on hire to a Commonwealth Government department, the contract providing that the driver was to bring the vehicle to an airstrip, where the department would take control of it and the driver. The driver negligently injured the plaintiff while performing a task under orders from the Commonwealth works foreman. The court did not hesitate in finding that the driver was at the time the employee of the Commonwealth. In arriving at this decision, account was taken of the fact that the driver was not hired to do a particular job or even a particular class of work, but was used for any purpose that arose incidental to the work carried out by the works foreman. His permanent employer did not even know the general nature of the work to be done nor its location. Accordingly, the work undertaken by the driver was regarded as an integral part of the Commonwealth operations for which the Commonwealth had assumed responsibility. Similarly, in Airwork (NZ) Ltd v Vertical Flight Management Ltd,60 a pilot whose contract of employment was with the respondent was found to be an employee of the appellant for the purpose of determining which was liable for a fatal plane crash. While the court recognised61 that it is ‘unusual, and indeed exceptional, for the services of a person to be lent to another with the borrower assuming full control over the actions of that person’, it found that the respondent did little more than pay

the wages of the employee, with the appellant exercising control over every other facet of the pilot’s work.

26.11

A relationship ‘akin to employment’ The United Kingdom Supreme Court, in Catholic Child Welfare Society v Various Claimants,62 agreeing with the decision of the English Court of Appeal in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust,63 has held that the categories of employee and independent contractor do not cover the whole gamut of relationships between a tortfeasor and one who may be liable for the conduct of the tortfeasor. It has decided that, in some circumstances, a relationship that is akin to employment will be sufficient to impose vicarious liability. The Supreme Court was asked to decide, on a preliminary issue, whether the appellant Society was vicariously liable for the sexual and other abuse alleged to have been committed by teachers at a school for boys in need of care. The teachers were lay brothers of the Roman Catholic Church, and members of the De La Salle Institute. Despite the fact that the teachers were not bound to the Institute by contract but by the vows that each had taken, and that, far from the Institute paying the teachers they were obliged to transfer all their earnings to the Institute, the Supreme Court held that the relationship between the Institute and the brothers was sufficiently [page 743] akin to employment to lead to the imposition of vicarious liability. The factors which led the court to that conclusion were that the Institute was organised as a hierarchical structure, the brothers undertook their teaching activities at the direction of the head of the Church Province in which the school was located, and was undertaken in furtherance of the objective, or mission, of the Institute, and that the manner in which the teachers conducted themselves in that role was as dictated by the Institute.64 The fact that the Institute is an unincorporated association65 means that the decision is currently of limited relevance in Australia, in light of the decision in Roman Catholic Church for the Archdiocese of Sydney v Ellis.66 However, news reports in late 2012 indicated that the New South Wales Government is

considering whether to legislate to impose on at least some unincorporated associations a greater degree of corporate identity.67

Is There a Separate Category of Agent? 26.12 We have seen that a person who does work for another may be either an employee or an independent contractor. Such a person may also, at the same time, be an agent; that is, the category of ‘agent’ partially overlaps the categories of both ‘employee’ and ‘independent contractor’. It is submitted that the category of agent, although of great importance in other branches of the law, such as contract, is of relevance in the present context in only a strictly limited range of circumstances. In general, an agent may or may not be subject to that degree of control which will make him or her an employee: the law of torts is here concerned only to know in any particular case whether or not a person is an ‘employee’. One who is employed on a weekly wage to sell encyclopaedias or kitchen utensils and is under orders as to the times and place of employment will be at once an agent (in contracting to sell the items) and an employee. On the other hand, if a real estate firm is the managing agent of a commercial building, and is careless in arranging for repairs to be carried out, the building owner is not vicariously liable for any injury caused by that carelessness; the real estate firm is an agent of the building owner, but, for the purposes of vicarious liability, an independent contractor.68 So, where the issue is one of vicarious liability, the inquiry should focus on determining whether the tortfeasor is an employee or independent contractor and responsibility (or the lack of it) will flow from this determination; the additional categorisation of the tortfeasor as agent will not generally be a relevant criterion. There are, however, two exceptions to this general rule: first, where the principal has ‘held out’ the agent as having authority to perform the act, which turns out to be tortious; and secondly, when the owner of a motor vehicle permits another to drive it. Each of these circumstances will be considered in turn. [page 744]

Holding out of the agent by the principal 26.13 The tort of deceit affords a useful illustration in this regard. Where a principal delegates authority to another person to negotiate a contract on his or her behalf, the principal may be liable for the fraud of the agent. So, for example, if an estate agent, in the course of negotiating the sale of a house of the principal, knowingly makes untrue statements about that house to a third party who acts on them and thereby suffers loss, in some circumstances the principal will be liable in deceit. And yet the estate agent is not the principal’s employee. This liability exists only where the principal can be said to have held out this estate agent as one authorised to make such representations in the course of making the contract.69 This is the basis of the liability. Such misrepresentations, though capable of giving rise to tortious liabilities, are so intimately associated with, and inseparable from, the contractual relation to which end the agency is directed that they partake of the quality of contract, where agency as such is important. The same principles apply when the tort committed by the agent is a negligent misrepresentation rather than a fraudulent one.70

26.14 The High Court in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd71 applied the concept of ‘holding out’ to impose vicarious responsibility on an insurance company whose agent (although not an employee) had defamed a rival company while soliciting business. The court held72 that, in soliciting and obtaining proposals and receiving premiums, the tortfeasor did not act independently but as the company’s agent, acting in its right and with its authority. In confiding to his judgment the choice of inducements and arguments, the company had authorised him on its behalf to address to prospective clients any observations he regarded as appropriate.73 It followed that the company should bear responsibility for his actions.74

26.15 The same principles apply in relation to a director of a company. While not an ‘employee’ of the company in the accepted sense of that word — in that the director, as the governing mind of the company, could in no sense be considered as subject to any form of direction or control — the company will nevertheless be vicariously liable for those torts of a director committed in the course of employment.75 The director has been held out by the company as the person through whom the juridical

[page 745] entity operates. It is, of course, an essential prerequisite of liability on the principal that the agent acted within the scope of the authority which the principal’s acts led the plaintiff to believe the agent enjoyed. There must, in other words, be a ‘holding out’ by the principal. The mere fact that, despite the absence of such holding out, the plaintiff mistakenly believes the agent to have authority to make the statements complained of will not render the principal vicariously liable.76 But it has also been held, both by the New Zealand Court of Appeal77 and by the House of Lords,78 that even though a company may be liable for a negligent misrepresentation, a director of the company, who has prepared the statement but who may have had no direct dealings with the plaintiff, is not personally liable, unless the plaintiff can demonstrate the necessary basis79 for a duty of care being owed by the director personally to the plaintiff.

Owner and driver of a motor vehicle 26.16 The other area which demands special attention is the liability of the owner of a motor vehicle when it is driven by someone else. Of course, the owner is liable if an employee drives it negligently in the course of employment.80 The courts have not, however, stopped there. Both the High Court of Australia, in Soblusky v Egan81 and the House of Lords in Launchbury v Morgans,82 held that if the vehicle is driven by the owner’s agent and the user is the owner’s agent, the owner is liable. In Soblusky the appellant, the bailee of a motor car, had asked an acquaintance to drive him and two friends to a function, because he (the appellant) did not like driving long distances. The driver negligently ran the car off the road, killing one passenger and injuring the others. The appellant was held to be vicariously liable for the injuries, as the driver was his agent for these purposes.

26.17 Vicarious liability in these cases stems directly from the agency relationship, not from the fact of ownership, and so may be imposed on persons other than the owners of motor vehicles. The principal may be a bailee83 or even, it has been suggested, a thief.84 The fact of ownership, however, imposes a rebuttable presumption that the driver at the time of the

accident is, if not the employee, then the agent of the owner.85 This is so whether the vehicle be in commercial or in private use.86 In order to fix vicarious liability on the owner, it must be shown that the driver was using the vehicle for the owner’s purposes under delegation of a duty [page 746] or task. This delegation need not be express but may be implied.87 It is, accordingly, necessary to show some communication (express or implied) of the mandate by the principal to the agent, as well as an acceptance (express or implied) by the agent. The respondent in Ansin v R & D Evans Ltd88 failed to establish a delegation and lost the action. The evidence revealed that, although the appellant, Mrs Ansin, held a driver’s licence and was the registered owner of the car, and was present in the car (in the back seat) at the time of the accident, she had not participated in the decision to allow the second respondent to drive. This had been entirely her husband’s doing and she had merely acquiesced in the situation, in acknowledgment of his role as decision-maker for the household. The court held that the evidence did not justify a finding of a communication between Mrs Ansin and the driver which was accepted by him to the effect that he was authorised by her to drive her car; the mandate to drive was given by her husband and was accepted by the second respondent before Mrs Ansin even entered the vehicle.89 The case also serves to illustrate the point that, in order to establish that the user was for the owner’s purpose, more needs to be shown than that the journey was in the owner’s interest.90 On the other hand, the test is not one of sole purpose91 so that the owner may be vicariously liable in the event that the journey was for the purposes (but not merely for the common benefit) of both parties. Each case must be determined on its facts. A husband will not be responsible for the negligence of his wife when driving his car to do a little personal shopping92 or even the family shopping,93 but presumably would be liable if she was out shopping for him at his request.94 In Nelson v Raphael95 the seller of a car asked a friend to hand over the car to the buyer and to collect his cheque. When the friend demonstrated the controls to the buyer, the seller was held vicariously liable for the friend’s negligence while

doing so.

26.18 The above principles have been overtaken by statute, in Australia and New Zealand, in respect of personal injury or death caused by the use of a motor vehicle. In New Zealand and the Northern Territory, no-fault compensation schemes provide exclusive cover for such losses, without the need to resort to the law of torts.96 In the other Australian jurisdictions, legislation97 obliges the owner of a vehicle, as a prerequisite to registration, to take out third party insurance covering the liability of whoever may be driving the vehicle, whether using the car with or [page 747] without the owner’s authority, for death or bodily injury to any person caused by or arising out of the use of the vehicle. The purpose of the legislation is to ensure that the negligence of the person in charge of a vehicle exposes the owner, and through him or her, the insurer, to liability.98 It makes no difference whether the driver is, in fact, an authorised agent; the owner will in all cases be vicariously responsible even where the driver is not lawfully in possession of the vehicle.99

26.19 However, the common law principles discussed in the preceding pages continue to apply when the motor accident victim wishes to sue for damage to property, as this is not covered by the above legislation. But, for all their application to cases of property damage, those principles apply only to injury caused through the use of a motor vehicle. In Scott v Davis,100 the respondent, the owner of a light aeroplane, allowed it to be used for a joyflight under the control of an acquaintance, who was a licensed pilot. The plane crashed, killing the pilot and seriously injuring the 11-year-old passenger, the appellant. The High Court held that the owner was not vicariously liable for the pilot’s negligence, because the owner had not retained any direction over the plane or control of it.101 And in Gutman v McFall,102 it was held that the hirer of a dinghy was not vicariously liable for the actions of its driver when the propeller struck and injured a scuba diver.

Liability in Respect of an Independent Contractor

26.20 An employer is not liable merely because an independent contractor commits a tort in the course of employment: the employer’s liability comes only from some measure of personal responsibility (whether actual or assumed) for the tort. This may happen in one of three ways: the employer may have authorised the independent contractor to commit a tort; the tort may be one of ‘strict’ liability, rendering the nature of the employer’s conduct irrelevant; or the employer may have been negligent, either in personally failing to take reasonable care or in failing to see that care was taken by the independent contractor.

Authorisation to commit a tort 26.21 In many circumstances the law will attribute to a person the conduct of another being, whether human or animal, if the former has instigated that conduct. If X sets his or her dog upon Y it is as much battery as if X had struck Y with a fist. One who instigates or procures another to commit a tort is deemed to have committed the tort personally.103 It matters not whether that other was employee, independent contractor or agent, human or otherwise. If, for example, a person [page 748] employs an independent contractor to do a specific act, such as to break through a neighbour’s wall, the employer will be liable in respect of that act. This liability is not dependent upon any negligence on the part of the contractor — it arises because the act of the contractor is regarded as the act of the employer.104 It was on this basis that the defendant company in Ellis v Sheffield Gas Consumers Co105 incurred liability. The company had employed an independent contractor to dig up a part of a street. The plaintiff fell over a heap of earth and stones made by the contractor in the course of digging, and the defendants were held liable on the ground that they had authorised this nuisance. It is not always easy to decide whether the defendant can be said to have authorised the tortious act. Where a lessee was empowered to erect certain structures, but the lease reserved to the lessor the right to approve the plans

for such structures (which right the lessor is not reported to have exercised), this was not enough to make the lessor answerable for the lessee’s negligence in the course of building the structure.106 On the other hand, although a taxi driver is not an employee, if a fare orders the driver to drive quickly or to take other risks, the driver is jointly responsible with the customer for any ensuing tort.107 In McInnes v Wardle108 an employer was held liable for the damage which resulted when an independent contractor employed by him to destroy rabbits on his property used fire to do so, which got out of control. Evatt J held that, on the facts, the employer must be taken as having expressly authorised the contractor to burn off the bracken for the purpose of fumigating the burrows, because this was the ordinary and usual method of destroying rabbits.109

26.22 If a person commits a tort while purporting to act on behalf of another, but in fact without authority, and that other later ratifies the act which amounted to a tort, he or she thereby becomes answerable for that tort in the same way as if a precedent authority had been given for its commission. The principal must know, at the time of ratification,110 of the commission of the act which constitutes a tort, but it is no excuse that the principal was unaware that the ratified act was a tort, or that liability would have ensued had the act been committed in person. Thus, if a person ratifies the purchase of goods which the vendor had no right to sell, he or she is liable in conversion, despite being unaware that the sale was unlawful.111

Torts where intentional or negligent conduct need not always be proved 26.23 The torts of ‘strict liability’ discussed in Chapters 14–16 are characterised not only by the fact that, in some instances, there is a liability where no intentional or negligent act has been committed, but also by the fact that one may be answerable for such torts when they are committed by one’s independent contractors. Thus, in cases of nuisance the occupier of the land from which the nuisance emanates [page 749]

will be liable, even though the acts constituting the wrong were committed by an independent contractor,112 and the keeper of an animal will be answerable for injury done by it despite the fact that it was then in the custody of an independent contractor.113 Since the action for breach of statutory duty depends in all cases on the interpretation of the statute in question, the person on whom the statute imposes the obligation will be liable, even though the breach of the legislative provision was brought about by the acts of an independent contractor.114

Reasonable care not taken 26.24 An employer will be liable for the negligence of an independent contractor when either (1) the employer failed to take reasonable care in selecting or instructing the independent contractor; or (2) the employer is under a ‘personal’ or ‘non-delegable’ duty. But no liability is cast upon an employer for the merely ‘collateral’ negligence of an independent contractor — that negligence, in other words, which is outside the scope of the employer’s ‘personal’ duty.

Personal negligence on the part of the employer 26.25 There may be such an element of personal negligence on the part of the employer as to impose liability for the acts of an independent contractor. For one thing, the employer will be liable for carelessly appointing an incompetent contractor.115 Furthermore, an employer who arranges for work to be done, well knowing, or being in a position to realise, that there is a particular risk involved, may be personally liable for failing to explain the nature of that risk to the contractor engaged to carry out the work, and to supervise its execution.116

‘Non-delegable’ or ‘personal’ duties117 26.26 In many situations the employer’s common law duty of care is no higher than the general duty to use reasonable skill and care. This will be satisfied by engaging a competent contractor to perform a service or carry out work, particularly if the service or work calls for the exercise of some skill or experience which the employer does not possess. Hence the general rule that

a person is not responsible for the wrongful acts committed by the contractor (or the latter’s employees) in the course of work for which they were engaged. In some categories of negligence, however, the duty to take care is so wide that it is not discharged by properly instructing and supervising a competent contractor: there is a positive duty not to act, even by a contractor, without taking due care. It must be emphasised that this is not true of all duty situations, and it is, of course, a question of law whether such a wide duty is owed. [page 750] These wider duties have been given the labels, ‘non-delegable’ or ‘personal’. By this is meant:118 Such a duty is the employer’s personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by employees119 or agents. A failure to perform such a duty is the employer’s personal negligence.

Non-delegable duties need not be discharged by the employer personally but liability rests with the employer if their discharge involves negligently inflicted damage or injury. It has been affirmed by the High Court, in New South Wales v Lepore,120 that the concept of a personal duty is relevant only when the person who has caused the injury has been negligent. A nondelegable duty does not impose liability on a principal for the intentional wrongdoing of another.121 It must also be borne in mind that a personal or non-delegable duty is generally called in aid when it is sought to make a principal liable for the negligent conduct of an independent contractor. But a prerequisite for considering the possible liability of the principal is that he or she, in accordance with ordinary principles of negligence, owes a duty of care to the injured person.122

26.27 Various categories of activity are recognisable as imposing a nondelegable duty of care, but the courts have been slow to explain just why it is that in these cases the duty to take reasonable care has been replaced by the more stringent duty to see that reasonable care is taken.123 The High Court in Kondis v State Transport Authority124 linked the classes of cases in which non-delegable duties have been recognised to ‘some element in the relationship between the parties that makes it appropriate to impose on the

defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed’. The common element which is to be found in all the categories of case in which this higher duty is currently applied is that the one on whom the duty is imposed has undertaken the control or supervision of the person or property of another, and that other is in a position of special vulnerability and thus can be seen to depend especially on care being taken by or on behalf of the principal.125 In Leichhardt Municipal Council v Montgomery,126 the High Court, in declaring that a road authority does not owe a non-delegable duty to road users, stressed that this [page 751] duty is not to be extended beyond the existing categories, unless there is a sound doctrinal basis.127 It remains to consider which relationships have been found to impose this duty.

26.28 Employer–employee This notion of control or supervision by one, and correlative dependence by the other, is regarded as being present in the employer–employee relationship. Thus, in Kondis v State Transport Authority,128 the appellant was one of a gang of employees of the respondent working on a project at the respondent’s railway yard. He was struck on the back by a metal rod attached to the jib of a crane negligently operated by an employee of an independent contractor hired by the respondent to assist with the project. The court held that the respondent’s duty to provide a safe system of work was non-delegable and the respondent was liable for any negligence on the part of its independent contractor in failing to adopt such a system: The respondent is liable for his neglect, not on a vicarious basis, but because [the contractor’s] omission to adopt a safe system is a breach of the respondent’s duty.129

Accordingly, as the House of Lords made clear in McDermid v Nash Dredging & Reclamation Co Ltd,130 it is no defence for the employer to show that the performance of this duty was delegated to a person reasonably believed to be competent to perform it. The essential characteristic of nondelegable duties is that the employer retains responsibility where the duty is

negligently performed. Furthermore, the duty may be imposed not only on the company which engages the employee in a formal contract of employment, but also on anyone who regularly uses the services of that employer for the provision of labour.131

26.29

School authority and pupil; hospital and patient School authorities132 have been held to undertake special responsibilities in relation to the pupils whom they accept into their care133 and who are prone to harm through their immaturity, inexperience and inclination for mischief, and thus to owe a personal duty to those pupils to see that care is taken.134 A nondelegable duty has likewise been held to [page 752] apply to hospitals in relation to those whom they accept into their care, whether as out-patients135 or as residents.136 But this does not mean that a hospital will be under that duty in relation to all those who receive medical treatment there. It has been pointed out137 that the duty depends on the treatment which the hospital undertakes to provide to a particular patient. If he or she is the private patient of a consultant specialist, and is treated at a particular hospital because that is the one chosen by the specialist, all that the hospital has undertaken to provide is the premises and such attendant staff as the specialist may require. The hospital has not, however, agreed to provide the services of the specialist, and consequently is not under a personal duty to see that care is taken by that specialist.138 Nor does the specialist owe a nondelegable duty, sufficient to render him or her liable for the negligence of the nursing staff. The scope of the specialist’s duty is limited to exercising all due care in carrying out the operation, and does not extend to the provision of all the medical services required in the performance of major surgery.139 But the situation is different when a person attends a hospital as a public patient. The organisation has then, at least impliedly, agreed to provide whatever services may be necessary, and will owe a non-delegable duty to see that care is exercised not only by its employees but also by its consultants or visiting experts.140

26.30 Prison authority and inmate The relationship between a prison

authority and an inmate therein displays the same control by one and dependence and vulnerability by the other as is found in the employer– employee relationship, and that of a school authority and pupil or hospital and patient. It ought therefore to follow that a prison authority will be vicariously liable for harm suffered by an inmate, even though the harm is caused by the negligence of a body contracted by the prison authority to manage the prison. There is no direct authority in Australia or New Zealand for this proposition, but it derives considerable support from the views expressed by Finn J in the Federal Court in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs.141 The plaintiffs were detainees in an immigration detention centre in South Australia, the management of which had been contracted out to a private company. On the plaintiffs’ claim against the Commonwealth for damages for the major depressive illness which they suffered, the Commonwealth conceded that it owed the detainees a non-delegable duty and was therefore vicariously liable for any negligence on the part of the contractor in the management of the centre, a concession which Finn J held to have been rightly made.142 [page 753]

26.31 Dangerous user of land and those nearby Structural operations which cause damage to neighbouring land have long been regarded as within the higher duties rule.143 More recently, the High Court of Australia, in Burnie Port Authority v General Jones Pty Ltd,144 concluded that any dangerous use of land which is likely detrimentally to affect persons or property in the near vicinity will impose a non-delegable duty on the occupier of that land. Prior to that decision, it had been thought that the occupier of land, who brought on to the property any substance that was dangerous in itself or a source of danger, was strictly liable for such damage to persons or property nearby as was the natural consequence of the collection and escape of the substance. This was the so-called rule in Rylands v Fletcher.145 As a principle of strict liability, that rule rendered the occupier liable, even though the damage was brought about by the negligence of an independent contractor. However, in the Burnie Port Authority case, a majority of the High Court declared that the rule in Rylands v Fletcher had now, in Australia

at least, been subsumed within the principles of negligence. But as a corollary to that statement of the development of the law, the court also observed that the relationship which previously would have been categorised as coming within the rule in Rylands v Fletcher was also one which exhibited the elements of control by one and dependence by another which are a hallmark for the imposition of a personal or non-delegable duty. One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other party to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger. In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken.146 On the facts of that case, it was held that the Burnie Port Authority had taken advantage of its occupation and control of a warehouse, which it was in the process of extending, to allow one of its independent contractors both to bring on to the work site a quantity of flammable insulating material and to carry out welding operations in close proximity to the stored insulating material. It was also found that the respondent, General Jones Pty Ltd, was in a position of special vulnerability by reason of the fact that it had stored a large quantity of frozen vegetables in the warehouse. When the authority’s independent contractor so negligently carried out its welding operations as to allow the insulating material to catch alight, the whole of the warehouse was engulfed in a fire which led to the destruction of the respondent’s property. The authority was held to owe a non-delegable duty to the respondent to [page 754] ensure that the authority’s independent contractor took sufficient care to prevent the insulating material being set alight by its welding operations.147

26.32 Earlier in the twentieth century, the English Court of Appeal had suggested148 that anyone who, through an independent contractor, carried out an ultra-hazardous activity was thereby under a non-delegable duty, and liable for any damage resulting from the negligence of the independent contractor. This view has been criticised by members of the High Court of Australia,149 principally on the basis that it apparently imposes strict liability for having ultra-hazardous activities carried out on one’s behalf, but fails adequately to define when an activity falls into that category. The Burnie Port Authority case150 makes clear what had been suggested in the earlier comments by members of the High Court, that even if a person engages in a dangerous activity, the liability remains personal, and dependent on the degree of care exercised by that person. Thus, if one engaged an independent contractor to carry out an operation in which the foreseeable risk of damage, and the degree of damage, are both high, the employer is under a correspondingly high standard of care to see to it that the independent contractor is especially careful. But provided that such care is exercised, the employer may escape liability for the contractor’s negligent acts.151 Although the courts in New Zealand have not yet had the opportunity to consider directly the applicability of the above principles, they are not inconsistent with the current state of authority in that country.152

26.33 Land developer and ultimate purchaser There is some authority for the proposition that a person who develops land, by subdividing it and having homes built on it, will owe a personal duty to those members of the public who purchase the residences. Such at least was the view of a majority of the New Zealand Court of Appeal in Mt Albert Borough Council v Johnson.153 Although their Honours acknowledged some difficulty in isolating the principles upon which a non-delegable duty is founded, it may be observed that the relationship with which they were concerned exhibits the common elements of control by one and dependence by the other referred to above. The development company, in the course of planning and executing the subdivision and construction work, has complete control and occupation of the whole site; those who purchase the homes must necessarily depend completely on that company to see that the various aspects of the work have been carried out with care. It may also be noted that in more recent decisions in both Australia and New Zealand holding the builder of a house liable to a subsequent

[page 755] purchaser for the loss suffered when defects in the building work became apparent,154 no question was raised of whether the defects were the result of negligent work by the builder personally or a subcontractor. It is difficult to believe that a builder would be immune from liability to a subsequent purchaser for a defect in the construction of a house simply by showing that the relevant part of the work had been carried out by a subcontractor.155 The House of Lords, in D & F Estates Ltd v Church Commissioners for England,156 rejected the views expressed in the Mt Albert Borough Council case, regarding the issue as one which can be addressed only by the legislature and not by the courts. However, both the New Zealand Court of Appeal and the High Court of Australia have refused to follow other aspects of the D & F Estates case.157 The House of Lords’ limitations on the categories of non-delegable duties are not necessarily relevant in these two countries.

26.34

Invitor and invitee In several cases invitors had been held accountable for injury caused to invitees through hidden defects on the premises, notwithstanding that the invitor had engaged the services of a competent independent contractor to remedy the defect. The imposition of a higher duty of care was justified158 on the basis that the invitor, by issuing the invitation, assumes a particular responsibility for the safety of a guest. It is uncertain whether this special duty is limited to instances where the work performed by the contractor involves no technical knowledge or expertise,159 or whether it extends to situations where expert skills are called for.160 It is difficult to reconcile the imposition of higher duties in the latter case with the line of authority which lays down that, where the delegated task does call for special knowledge or skill, the occupier who lacks these special abilities may be negligent by not calling upon the services of an expert.161 Moreover, the abolition by the High Court162 of graded duties of care by occupiers, which depended for their existence upon defined categories of entrant, is bound to have an impact upon the notion of non-delegable duties owed to invitees. Now that the occupier is said to owe an identical duty to all entrants, lawfully or unlawfully on the premises, cast in terms of an obligation to take reasonable steps for their protection, it appears that, in general, an occupier’s

duty is ‘delegable’, in the sense that it may be discharged by the occupier’s exercise of reasonable care and skill in engaging someone else to keep the premises safe.163 However, it has been suggested by the Full Court in [page 756] South Australia,164 that a non-delegable duty will be imposed on an occupier when the performance of a task carries with it an inherent and high risk of harm to others.

No liability for ‘collateral’ negligence 26.35 Even where the duty is non-delegable, employers of independent contractors, unlike those employing employees, are never liable for the ‘collateral negligence’ of their contractors. Padbury v Holliday & Greenwood Ltd165 at once furnishes facts which illustrate the principle and contains a statement of that principle: A employed B to fit casement windows into certain premises. B’s employee negligently put a tool on the sill of the window on which he was working at the time. The wind blew the casement open and the tool was knocked off the sill on to a passer-by. Had B been an employee, the defendants would have been liable because the negligence clearly occurred in the course and scope of employment. Holding the employer not liable, Fletcher Moulton LJ said:166 … before a superior employer could be held liable for the negligent act of an employee of a subcontractor it must be shown that the work which the subcontractor was employed to do was work the nature of which, and not merely the performance of which, cast on the superior employer the duty of taking precautions.167

In short, the employer is liable for those risks of harm created by the work itself which the employer is having done. ‘Collateral’ means collateral to the risk which marks the limit of the duty of the employer. If the employer is to be liable, the danger must be inherent in the work; it is generally not enough that the contractor chooses a negligent way of performing it where the normal manner of performance would create no reasonably foreseeable peril to the plaintiff.168 But if the task is one which is fraught with exceptional danger, the standard of care imposed on the employer is correspondingly increased, to the point where it may include acts by the contractor which in other

circumstances may have been regarded as no more than ‘collateral’.169

26.36 The negligence must be ‘in the employer’s department of duty’:170 a householder who employs a contractor to repair a boundary wall is liable if the [page 757] contractor repairs it in such a way that it collapses and falls on to a passer-by, for that is the very risk in respect of which the householder is under a duty, but that employer is not liable if the contractor, while repairing the wall, allows a hammer to drop on to the passer-by, for that act would be outside the employer’s range of duty.171 Wilson v Hodgson’s Kingston Brewery Co172 also shows how liability for the acts of independent contractors falls short of vicarious liability for the torts of an employee. The defendants employed X, an independent contractor, to deliver beer at a public house. X delivered the beer through a cellar flap facing the highway which he negligently left open, causing the plaintiff, who was passing along the pavement, to be injured. Pointing out that X could have delivered the beer through the front door, the court held that the incident was not within the scope of any duty on the part of the defendants to take care.

Liability in Respect of Employees Theories of vicarious liability 26.37 An employer is liable whenever an employee commits a wrongful act in the course of employment. All the elements of the particular wrongful act must subsist during the employer–employee relationship, except that the employer may be answerable even though the relationship has ceased when the damage occurs.173

26.38 Two theories of vicarious liability exist. The first, sometimes called the ‘master’s tort’ theory, imputes to the employer only the acts of the employee, and not any concomitant liability, and therefore renders the employer liable only when it owes a duty of care to the plaintiff. Thus, in

Twine v Bean’s Express Ltd174 an employee of the defendant company, unknown to the employer and against its orders, gave a lift in the employer’s van to a stranger during a journey which was being made in the course of employment. The employee drove negligently and the stranger was killed. In the ensuing action by the widow, the court held that the employer could not be held responsible since the plaintiff had been unable to establish the existence of a duty of care on the part of the employer, but only one by the employee.175 The second theory, which might be called the theory of strict liability, rejects the need to prove such a duty owed by the employer to the injured person, requiring merely proof of a tort by the employee committed in the course of employment. It is that tortious conduct of the employee which is imputed to the employer, rendering the latter vicariously liable. [page 758]

26.39 The House of Lords, in Majrowski v Guy’s & St Thomas’s NHS Trust,176 citing Staveley Iron & Chemical Co Ltd v Jones,177 Imperial Chemical Industries Ltd v Shatwell,178 and a wide selection of academic support, has recently declared that the theory of strict liability is settled law in that country, and there is little doubt that the same is true in Australia. In Darling Island Stevedoring & Lighterage Co Ltd v Long,179 while Kitto J (with whom Taylor J agreed)180 adhered to the ‘master’s tort’ theory, Fullagar J181 expressed the view that the ‘liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another’. This was followed by Windeyer J in Parker v Commonwealth182 when he said that an employer ‘is only liable for the acts or omissions of an employee if the employee would himself be liable’, a view subsequently followed by state courts.183 More recently, the High Court, in Hollis v Vabu Pty Ltd,184 acknowledged the correctness of the view expressed by Fullagar J in the Darling Island case, that the ‘modern doctrine respecting the liability of an employer for the torts of an employee was adopted … as a matter of policy’.

26.40 Although it will often make no difference whether a court adopts the ‘master’s tort’ theory or that of strict liability, there are at least two circumstances in which application of the latter theory will result in a different outcome from application of the former. One such circumstance is that in which an employee is given immunity from liability by statute. In Bell v Western Australia,185 the plaintiff alleged that an employee of the Department of Transport had negligently caused damage to his houseboat. However, the Western Australia Marine Act 1982 (WA) s 124 provided immunity from liability for officers of the department acting in good faith and in the exercise of a power or discharge of a duty under the Act. The Full Court held that, in the light of this immunity, the employee was not liable to the plaintiff, resulting in the Crown also being free of liability.186 Another situation in which the different theories of vicarious liability may yield different results is that in which an employee has committed a tort in such circumstances as to merit the plaintiff being awarded exemplary damages.187 On the application of the ‘master’s tort’ theory, it might appear that an employer could only very infrequently be required to pay exemplary damages if its liability is no more than vicarious, since it is not directly at fault for the hurt suffered, and has [page 759] apparently done nothing to deserve punishment or condemnation.188 However, on the application of the theory of strict liability, it is the tortfeasor’s tortious conduct which is attributed to the employer, rather than his or her acts, and if that tortious conduct is such as to call for an award of exemplary damages, it is difficult to see why an employer should escape a liability which is, in all other circumstances, imposed upon it. Furthermore, an award of exemplary damages made against an employer would meet many of the purposes of such an award.189 It would assuage any feelings on the part of the plaintiff for revenge and it would mark the condemnation of the court for the conduct complained of. It has also been suggested,190 that it would fulfil the deterrent purpose of such an award by bringing it home to senior officers in a position of control in an organisation that conduct meriting the award of such damages by junior officers will not be tolerated, and that the

senior officers must maintain discipline and proper behaviour at all times.191

The course of employment 26.41 The responsibility of the employer depends on whether the employee did the act in the course of employment. The phrase ‘course of employment’ is interchangeable192 with the expressions ‘scope of employment’193 and ‘sphere of employment’.194 They are all used to indicate the limits of the employer’s legal responsibility for the wrongful acts of an employee. The employee who acts beyond these limits becomes, in effect, a stranger in relation to the employer, and his or her wrongful acts are, in the eyes of the law, the unauthorised acts of a stranger to which no vicarious liability attaches.195 In view of the policy objectives which lie behind the imposition of vicarious liability, referred to at 26.1, it is not surprising that applying these general principles to any specific set of facts may lead different minds to differing results. Factors which have been considered relevant are discussed in the following pages.

Mode of doing the work that an employee is employed to do 26.42

One must distinguish an employee’s wrongful mode of doing authorised work — for which the employer is liable — from an act of the kind which the employee is not employed to perform.196 The possible variations of fact here are endless, but one or two examples will explain the working of the rule. [page 760] In Century Insurance Co Ltd v Northern Ireland Road Transport Board197 the House of Lords had to consider the situation in which the driver of a petrol tanker, while transferring petrol from the truck to an underground tank at a garage, struck a match in order to light a cigarette and then threw the match, still alight, on the floor. An explosion and a fire ensued. His employers were held liable for the damage caused, for he did the act in the course of carrying out his task of delivering petrol: it was an unauthorised

way of doing what he was employed to do.198 In Deatons Pty Ltd v Flew,199 on the other hand, a hotelier was held not liable when a barmaid employed by him, angered by a customer’s foul language and offensive behaviour, threw a glass filled with beer at the customer. The court regarded her action as ‘a spontaneous act of retributive justice’ done ‘neither in furtherance of the employer’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do’.200 Barmaids are employed to serve, not to assault, customers and the court refused to see her act as a mode, whether legitimate or improper, of carrying out her work.201

26.43 To bring an act within the scope of employment it is not sufficient to show that it occurred at the workplace or that the protagonists are both employees, or even that it was occasioned by an incident at work. Where it is sought to hold the employer liable for an intentional tort, like assault, the courts will examine closely the motivation behind the act.202 Acts motivated solely or predominantly by private spite or personal grievances will not be acts for which the employer is responsible.203 Conversely, where the employee’s conduct is prompted by the desire, albeit misguided, to further the interests of the employer, the latter will be liable, provided that the act was reasonably incidental to the performance of the employee’s allotted duties.204 In a series of decisions by the Court of Appeal in New South Wales and Queensland respectively, it has been held that a security guard, employed to keep order among patrons at a night club or similar entertainment venue, who injures a patron even in the course of an unprovoked assault, will render the employer [page 761] vicariously liable, so long as the security guard’s conduct, even though inappropriate, is in supposed furtherance of the employer’s interests.205

26.44

The designated tasks of employees may need to be carefully scrutinised in order to ascertain their limits. A bus company is not liable, for example, when the conductor, instead of the driver, in turning around, on his own initiative, a bus at the terminus, negligently injures a third party,206 but

is liable for the negligence of the driver who allows a conductor to drive the bus.207 The duties of a conductor do not extend to driving the bus, so that even if he or she intended to act in the best interests of the company by taking the wheel, still the act would not be within the scope of authority. The driver, on the other hand, is employed to drive the bus, and allowing a third party to drive it could reasonably be construed as an unauthorised mode of doing an allocated job.

26.45 It should also be noted that the employer’s vicarious liability for the torts of an employee are much wider than the personal liability, where it exists, for those of an independent contractor. This is because the employer is not liable for the ‘collateral negligence’ of independent contractors: see 26.35. Many facts that would constitute ‘collateral negligence’ in the case of independent contractors will nonetheless be ‘in the course of employment’ for the purposes of the doctrine of vicarious liability.

26.46 Where an employer permits an employee to do an act, this should not of itself be regarded as bringing that act within the scope of the employment. A chauffeur who is allowed to drive the employer’s motor car while off-duty and purely for his or her own purposes will not be acting in the course of employment if there were to be an accident during this time. In Commonwealth v Cocks208 a public employee being transferred from Canberra to Melbourne was granted permission to make the journey in his own car instead of travelling by the regular means of transport. He was paid a mileage rate in respect of his vehicle. It was held that the grant of permission did not render the Commonwealth liable as employer for his negligent driving during the trip. Allowing the public employee to use his car was simply facilitating an arrangement that suited both parties. As the making of the journey was not what he was employed to do, he was not acting in the course of his employment. If, however, an employee is obliged by the nature of his or her work to travel from A to B, the fact that he or she might be permitted to use one form of transport above another will not alter the fact that the journey is in the course of employment.209 A commercial traveller, for example, will generally be held to be acting in the course [page 762]

of employment when travelling from one customer to another. Vicarious liability will lie in this instance.210

Authorised limits of time and space 26.47 The conduct of an employee is within the scope of employment only during the authorised period of service or a period which is not unreasonably disconnected from the authorised period. Thus, a person paid for working until 5 pm who stays on for a few minutes in order to finish a job will still be within the scope of employment, but not one who comes into the employer’s premises without permission during a holiday. Perhaps the furthest extension of this rule that the courts have made is to be found in Ruddiman & Co v Smith.211 In this case the defendants provided a washroom for the benefit of their clerks. After office hours had ended, and preparatory to going home, a clerk used the washroom, and left a tap running. His act was held to be within the scope of his employment so as to make the defendants liable for the ensuing flooding of adjoining premises.

26.48 The courts have often been called upon to decide whether a detour by an employee is within the scope of employment. The classic ruling is that of Parke B in Joel v Morison:212 If he was going out of his way, against his master’s implied commands when driving on his master’s business, he will make his master liable, but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.

Whether the detour by the employee is a ‘frolic of his own’ is clearly a matter of degree. One may compare two cases, one on each side of the line, in an attempt to illustrate the issue. In the first case, Chaplin v Dunstan Ltd,213 the foreman of the defendant’s quarry works was instructed to take a truck from the defendant’s Stonyfell quarry in Adelaide to their Inman Valley quarry 110 km away, there dismantle the clutch of a crushing machine that was in need of repair, and return with it to Adelaide. On the return journey the foreman turned off the main road, thereby deviating slightly from his route, for the purpose of getting a drink at a hotel. Before reaching it he negligently collided with a motorcyclist. The company was held liable for his negligence on the basis that his desire to procure liquid refreshment was not unreasonable in view of the fact that he had been hard at work for over 11 hours; his deviation was not a thing altogether outside of and unconnected

with his employment such as to cause him to be a stranger to his master.214 In the second case, Storey v Ashton,215 a carter was instructed, after delivering wine, to bring back some empties directly to the shop of his employers. On the [page 763] return journey, before reaching the shop, he deviated from the route in order to pick up a cask at the home of the clerk accompanying him and take it somewhere else for that clerk’s private purposes. While on the way to the clerk’s home he drove the cart negligently and injured the plaintiff. His employers were held not liable. The deviation in this instance was regarded as too great a departure from his employment to justify it being seen as a mere detour.

26.49 A point of great difficulty is to determine when a person, who has gone on a ‘frolic’, can be deemed to have re-entered the employer’s service. An attempt to establish such a resumption failed in Rayner v Mitchell.216 Here an employee, who was employed to deliver beer and pick up empties, took out the delivery cart on an unauthorised trip and on his return picked up some empties. This was held not enough to constitute a resumption of his employment, and his master was held not liable for his negligent driving while returning, with the empties on board, to the premises of his master.

Express prohibition 26.50 Often, of course, an employer expressly forbids an employee to do certain acts. But it does not follow from this that an act done in defiance of the prohibition is thereby placed outside the scope of employment. If it were so, the employer would only have to issue specific orders not to be negligent in order to escape liability for an employee’s negligence. The House of Lords has laid down the rule as follows:217 … there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the

man has gone outside the sphere.218

This rule was further elaborated upon in Ilkiw v Samuels,219 Diplock LJ holding that the determination into which of these two classes an express prohibition falls involves delimiting what would have been the sphere, scope or course of employment had the prohibition not been imposed. The inquiry must be made in broad terms; that is, rather than dissecting the work into its component parts (like driving, loading, etc), the question should be asked: what was the job the employee was employed to do?

26.51 It must also be borne in mind that the vicarious liability of an employer for the wrongful acts of an employee is not dependent merely on the question of authority, whether express or implied. Such liability may exist even though the act is beyond the terms of that authority.220 In this regard the expression ‘scope of authority’ may be wider than the limits of the authority itself. Again, a few illustrative examples [page 764] will be given. First, Canadian Pacific Ry Co v Lockhart,221 where the defendants had prohibited their staff from driving uninsured cars on the company’s business. In breach of this instruction S drove an uninsured car negligently, while engaged on the company’s business, and injured the plaintiff. Holding the defendants liable, the Judicial Committee advised:222 … it was not the acting as driver that was prohibited, but the non-insurance of the motor-car, if used as a means incidental to the execution of the work which he was employed to do. It follows that the prohibition merely limited the way in which, or by means of which, the employee was to execute the work which he was employed to do, and that breach of the prohibition did not exclude the liability of the master to third parties.

Likewise, a garage hand employed to move vehicles in a garage, but forbidden to drive them, was acting in the course of his employment when he drove a van out of the garage on to the highway in order to make room for another vehicle, and collided on the highway with the plaintiff’s van.223 So, too, an insurance company was held vicariously liable for defamatory statements made about a rival company by one of its salesmen in the course of selling insurance, despite an express prohibition in his contract of employment on precisely that issue.224 And, in Black Range Tin v

Shoobert225 a mining company was held responsible for an accident caused when one of its trucks was negligently driven by a friend of one of its drivers. The fact that the employee had been forbidden either to carry unauthorised passengers or to permit anyone else to drive was not a prohibition which, in the court’s view, limited the sphere of employment. It was a prohibition which only dealt with conduct within the sphere of employment. These cases may be contrasted with Rand Ltd v Craig226 where the defendant had employed his employees to carry rubbish from X to Y. Instead, they deposited some of this rubbish on the land of the plaintiff. The defendant was held not liable for this trespass because they were employed, not to carry rubbish generally but only to carry it from X to Y: the act was therefore of a kind that they were impliedly forbidden to do.

Connection with employer’s work 26.52 Frequently, employees do acts which they have no express authority to do, but which are nevertheless calculated to further some proper objective of their employer. Unless the means of accomplishing this objective are so outrageous that no employer could reasonably be taken to have contemplated such an act as being [page 765] within the scope of employment, the employer will be liable for torts thus committed, as the following cases show.227 Poland v John Parr & Sons228 is the leading case. Here H, an employee of the defendants, while going home to dinner, had reason to believe that a boy was stealing sugar from a bag on a passing lorry of his employers. He struck the boy, who fell and, in consequence, had to have a leg amputated. Although H’s act in defence of his employer’s property was so unreasonable as to be tortious it was not sufficiently excessive to be outside the scope of his employment. Holding that ‘an employee has an implied authority upon an emergency to endeavour to protect his master’s property if he sees it in danger or has reasonable ground for thinking that he sees it in danger’,229 the English Court of Appeal found the defendants liable. Atkin LJ did, however,

point out:230 … where the employee does more than the emergency requires, the excess may be so great as to take the act out of the class. For example, if H had fired a shot at the boy, the act might have been in the interest of his employers, but that is not the test.

With this may be contrasted Blake v JR Perry Nominees Pty Ltd.231 The appellant and several fellow employees of the respondent had been sent to a wharf to await the arrival of a ship, which was to be refuelled. After the employees had been waiting some 18 hours, one of the respondent’s employees, Lindsay Jones, suddenly and without warning struck the appellant hard to the back of the knees, causing severe damage to his back. Although Neave JA considered that the employer was vicariously liable, on the basis that the injury was unintended, and that Jones’s conduct was no more than a prank,232 the majority of the Victorian Court of Appeal came to the opposite conclusion. As Harper JA observed:233 The action of Mr Jones in hitting Mr Blake and thus causing him near collapse was done neither in furtherance of the interests of [the respondent] nor under its expressed or implied authority. Nor was it an incident to or in consequence of anything Mr Jones was employed to do.234

[page 766]

Deliberate criminal conduct 26.53 Although it is material, in deciding whether the act was in the course of employment, that it was a criminal or otherwise wilful wrongdoing, this does not prevent it from being within the scope of employment.235 In Barwick v English Joint Stock Bank236 fraudulent misrepresentations by a bank manager were held to be in the course of employment. Before 1912 it had been thought that the employer would only be liable for wilful wrongdoing where, as in Barwick’s case, the act was done for the employer’s benefit. In that year Lloyd v Grace, Smith & Co237 was decided by the House of Lords which established the principle that the employer might be vicariously liable for a criminal act of an employee even though the employer stood to derive no benefit from it. This case involved an action to recover title deeds by the plaintiff, a client of the defendant firm of solicitors, and the material point was whether the firm was liable for the act of its managing clerk, who, when the plaintiff consulted him about selling her property and

realising a mortgage, fraudulently induced her to sign documents transferring these properties to him. The managing clerk was employed, among other tasks, to carry out conveyancing transactions. Although the firm derived no benefit from these frauds perpetrated by its employee for his own purposes, it was held liable for his acts.238 This decision is of general application and not confined to mercantile transactions. The English Court of Appeal in Morris v CW Martin & Sons Ltd239 has held, for example, that a firm of cleaners, to whom a furrier had entrusted the plaintiff’s mink stole, were liable to the plaintiff for the theft of the stole by one of their employees whose duty it was to clean the stole. Diplock LJ stipulated that the tort must have taken place ‘in the course of doing that class of acts which the employer had put the employee in his place to do’. Consequently, the employer would not be liable for an employee who merely grasped the opportunity created by the employment to commit the illegal act.240 The deciding factor in Martin’s case was that the employee had been given custody of the stole. The theft was therefore seen as an unauthorised method of carrying out the work at hand. The cases suggest that, while the employee obviously has no authority to commit the act complained of, ‘it is necessary that he should have authority, either express or implied, to engage in the transaction, or be held out as having authority to engage in the transaction, [page 767] in the course of which the wrongful act complained of is committed’.241 Thus, a person employed by a service provider to carry out a range of personal services for a quadriplegic victim of a car accident may render her employer vicariously liable for thefts from the quadriplegic’s bank account, as being in ostensible pursuit of the employer’s business.242

26.54 An issue which has now been considered by the final courts of appeal in Canada, the United Kingdom, New Zealand and Australia is the extent to which (if at all) an educational institution or government department might be vicariously243 liable for such intentional criminal conduct as the sexual abuse of a pupil by a teacher. The Supreme Court of Canada, in Bazley v Curry244 and Jacobi v Griffiths,245 held that such liability may be imposed,

if the nature of the employment in the particular circumstances will significantly increase the risk of the employee misusing that employment in committing the sexual abuse. Thus, in Bazley, the operator of a residential facility for emotionally disturbed children was vicariously liable for sexual assaults committed by an employee who was charged with the duty of ‘doing everything that a parent would do’246 in the course of attending to the children. In Jacobi, on the other hand, a majority of the Supreme Court of Canada held that a children’s club was not vicariously liable for sexual assaults committed by an employee who had been engaged to organise afterschool activities and occasional outings.247 In Doe v Bennett,248 the Supreme Court subsequently applied these principles to impose vicarious liability on a Roman Catholic archbishop for the abuse committed by a priest on boys in his parish over a space of some 20 years. The court observed that a priest was expected to be involved with children, and that his position as a priest gave him an enormous degree of power over the children. This was therefore a further instance of circumstances in which the nature and circumstances of the priest’s employment significantly increased the risk of the abuse which in fact occurred.249 The United Kingdom Supreme Court, in Catholic Child Welfare Society v Various Claimants,250 discussed at 26.11, having considered both the earlier decision of the House of Lords in Lister v Hesley Hall Ltd,251 and the decisions of the Supreme Court of Canada in Bazley v Curry and Jacobi v Griffiths, summarised the common theme that could be found running through those cases in the following words.252 [page 768] Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.

On the assumed facts of that case, it was held that both the necessary relationship between the teachers and the institute at which they taught, and the close connection between that relationship and the abuse committed at the school had been made out.253

However, these cases from Canada and England may be compared with A v Roman Catholic Archdiocese of Wellington254 in which the New Zealand Court of Appeal held that Catholic Social Services was not vicariously liable for any sexual abuse of the plaintiff by caregivers while on holiday placements. The court considered that Catholic Social Services had no statutory control over the plaintiff, and were merely fulfilling the obligations of her parent to maintain her, and further that holiday caregivers were not agents of Catholic Social Services, since the latter did not provide holiday care or supervise holiday placement. The possible vicarious liability of a church for the conduct of its priests is of limited relevance in Australia. In Trustees of the Roman Catholic Church for the Diocese of Sydney v Ellis,255 the New South Wales Court of Appeal held that a Roman Catholic Archdiocese, being an unincorporated association, cannot be sued in its own name (see 29.13) and that the relationship of (at least) an assistant priest with all the members of that church is too slender to establish vicarious liability.

26.55 The New Zealand Court of Appeal, in S v Attorney-General,256 held the Department of Social Welfare vicariously liable for sexual abuse committed by foster parents against their foster children. The view was taken that, by placing the children in private homes, the department had created or increased a risk of child abuse and that that factor: … together with recognition of the special obligation of protection of children imposed on the Superintendent [of the Child Welfare Division] as a surrogate of the New Zealand community, renders it fair that compensation for the innocent victim’s serious and long-lasting injury should be borne by and distributed amongst the community; for else it will not be compensated at all and the community obligation will not have been recognised.257

This decision may be contrasted with those of the Supreme Court of Canada less than three months later, in B(KL) v British Columbia258 and B(M) v British Columbia,259 in which it was held that the provincial government was not vicariously liable for [page 769] abuse carried out by foster parents, on the ground such parents are, in important respects, independent of the government, which cannot exercise sufficient control over them for them to be seen as acting on account of the

government, and on the ground that foster parents do not hold themselves out as agents of the government.

26.56 It is difficult260 to draw any clear principle from the judgments of the High Court in New South Wales v Lepore.261 The court heard together one appeal relating to alleged sexual abuse at a state school in New South Wales and two alleging the same type of conduct at a state school in Queensland. It ordered a retrial of the case from New South Wales and, in dismissing the appeal from the Queensland cases, allowed the respective plaintiffs to amend their pleadings in the light of the court’s decision. However, while Gleeson CJ and Kirby J were prepared to say that a school authority may be vicariously liable, on the basis of there being a sufficiently close connection between the sexual assault and the employment to make it just to treat such conduct as occurring in the course of employment,262 they were the only members of the bench to reach that conclusion for that reason. Gaudron J was also prepared to make a finding of vicarious liability in such circumstances, but based on the concept of estoppel. Her Honour considered that such liability could be imposed if ‘the person against whom liability is asserted is estopped from asserting that the person whose acts are in question was not acting as his or her servant, agent or representative when the acts occurred’.263 McHugh J considered that discussion of vicarious liability was irrelevant, as he took the view that a school authority owes a personal, ‘nondelegable’ duty even in respect of intentional criminal acts by an employee,264 while Gummow and Hayne JJ in a joint judgment,265 and Callinan J in a separate judgment,266 concluded that vicarious liability depends on the conduct of the employee being in intended or ostensible pursuit of the employer’s interests, and that the sexual abuse of school children could never be seen as in any way within conduct in which the perpetrator might be thought to be authorised to engage.

Public employees and vicarious liability267 26.57 At common law, the Crown could not be sued either personally or vicariously for the tortious acts of its employees and agents.268 But legislation in Australia269 and New Zealand270 renders the Crown, as employer, open to claims for vicarious

[page 770] liability in much the same fashion271 as any private employer. There is, however, an exception to this general principle of vicarious liability, applicable to most of those in public service272 other than in New South Wales, South Australia and New Zealand;273 the Crown, as an employer, will not be liable if the tortfeasor was in the process of carrying out an independent duty cast upon him or her by the law. As Dixon J stated in Little v Commonwealth:274 [A]ny public officer whom the law charges with a discretion and responsibility in the execution of an independent legal duty is alone responsible for tortious acts which he may commit in the course of his office and … for such acts the government or body which he serves or which appointed him incurs no vicarious liability.

This exception has been strongly criticised275 since it transfers the loss suffered by the injured plaintiff to an individual who is unlikely to be able to distribute that loss, rather than putting the liability on the Crown, where it could be readily absorbed. It is therefore not surprising that, in addition to the legislative abrogations mentioned above, the exception has been abolished by statute in England276 and eight of the nine common law provinces in Canada.277 The exception has been proposed for abolition in Victoria,278 Queensland279 and in respect of the Crown in right of the Commonwealth,280 but none of these proposals has yet been implemented.

26.58 The rationale for the immunity has been ascribed to the fact that the public employee who is obeying or endeavouring to obey the authority of an Act of Parliament is not at that time subject to the control of the employer such as to make the latter responsible for the officer’s tortious acts.281 The position is the same where the duty is one imposed by the common law. In Attorney-General (NSW) v Perpetual Trustee Co Ltd282 Kitto J, discussing the nature of a police officer’s duties,283 held that, where these related to preservation of the peace or [page 771] the apprehension of offenders, neither superior officers nor the Crown itself

could direct the detailed manner in which the officer was to perform these duties and so could not be held responsible for any torts committed in the course thereof. And Fullagar J in the same case284 attributed the distinction between the act or default of an officer in the course of service under the Crown, on the one hand, and an act or default in executing some independent duty cast on the officer by law, on the other hand, to the question whether the employee has been acting in the course of employment by the Crown. As this case makes clear, the respondeat superior rule does not operate in situations where the discretion has been conferred by law independently of that employment so that the employee is for the occasion acting outside the course and scope of the employment.

26.59 The ‘independent discretions’ rule has been applied to negative vicarious liability in the case of magistrates,285 legal aid officers,286 Crown prosecutors,287 collectors of customs,288 the Commissioner of Taxation,289 the former Director of Native Affairs in the Northern Territory290 and the pilot of a ship,291 but has not been applied to school teachers292 nor to such statutory office-holders as the Comptroller-General of Prisons293 or the Director of Community Welfare.294 The exception may apply to a Minister of the Crown in the conduct of his or her portfolio.295 At common law, the rule covers the conduct of police officers while carrying out functions special to their appointment.296 It is in this respect especially that it has been criticised,297 and statutory provisions in all jurisdictions now impose [page 772] vicarious liability on the Crown for torts committed by police officers in the exercise or purported exercise of their duty.298

26.60 It should not be thought, however, that the immunity attaches automatically in relation to any particular class of public employee. It follows that if the tort committed by a Crown employee is not connected with an independent authority and is otherwise within the course and scope of employment, the Crown will be vicariously liable. It has been held, for example, that the Crown is not vicariously responsible for the negligent acts of customs inspectors when exercising the independent function of passing or

refusing to pass an entry.299 On the other hand, the Crown has been held vicariously responsible for customs inspectors who circulate a libel in the course of their employment,300 or who negligently lose goods in repacking them after they have been examined for customs purposes.301 Each situation must therefore be closely examined to ascertain the source of the particular duty during the course of which the tort was committed. _______________ 1.

See generally Atiyah, Vicarious Liability in the Law of Torts, 1967.

2.

But see the discussion at 26.11 of the adoption by the United Kingdom Supreme Court of a category of persons who are in a relationship that is ‘akin to employment’.

3.

Bartonshill Coal Co v McGuire (1858) 3 Macq 300 at 306 per Lord Chelmsford LC (HL).

4.

See, eg, the discussion by McLachlin J in Bazley v Curry (1999) 174 DLR (4th) 45 at [31]–[34], referred to with approval in Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 at [41], [42] and the comments of Lord Nicholls in Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224; [2006] 4 All ER 395 at [9].

5.

Colonial Mutual Life Assurance Soc Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48 per Dixon J.

6.

(2006) 226 CLR 161; 227 ALR 46.

7.

For critical reviews of the decision see Foster, ‘Vicarious Liability for Independent Contractors Revisited’ (2006) 14 TLJ 219; Burnett, ‘Avoiding Difficult Questions: Vicarious Liability and Independent Contractors’ (2007) 29 Syd L Rev 163.

8.

Stevenson, Jordan and Harrison Ltd v Macdonald and Evans [1952] 1 TLR 101 at 111 (CA). Cf somewhat similar observations by Lord Wright in Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 at 169 (PC).

9.

Per Latham CJ in Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 396. A similar test was applied in Queensland Stations Pty Ltd v Federal Commr of Taxation (1945) 70 CLR 539 (drover was held to be an independent contractor).

10.

Federal Commr of Taxation v J Walter Thompson (Aust) Pty Ltd (1944) 69 CLR 227 at 231 (radio artist held to be an employee).

11.

Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd [1924] 1 KB 762 at 767 per McCardie J.

12.

Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 396.

13.

See, eg, Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed, 1979, pp 72–3.

14.

Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 387 (PC).

15.

For example, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29; 63 ALR 513 at 521 per Mason J; Federal Commr of Taxation v Barrett (1973) 129 CLR 395 at 401 per Stephen J.

16.

(2001) 207 CLR 21; 181 ALR 263.

17.

Ibid at [57] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.

18.

Ibid at [48]–[56]. For an earlier example of a finding of a relationship of employer–employee, on that occasion of a circus acrobat, see Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561.

19.

(1995) 13 WAR 487 at 492–7 (FC).

20.

See also Green v Victorian Workcover Authority [1997] 1 VR 364 at 376 per Tadgell JA (CA).

21.

For example, in Bertram v Armstrong & De Mamiel Constructions Pty Ltd (1978) 23 ACTR 15 at 19, the fact that the plaintiff was able to choose the manner in which he carried out his work (which included floor laying and wall straightening) and the times when he did it, were indicative of his being an independent contractor.

22.

Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46 at [31]; but payment of estate agents on a commission basis was held in Federal Commr of Taxation v Barrett (1973) 129 CLR 395 at 406 in the particular circumstances to indicate a contract of service.

23.

Quarman v Burnett (1840) 6 M & W 499; 151 ER 509. Webb J in Wright v A-G (Tasmania) (1954) 94 CLR 409 at 414 regarded as significant the fact that the work was to be done by the contractor’s own equipment in his own possession and control.

24.

But the fact that a drover contracts to find the necessary labour does not of itself make him or her an independent contractor: Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185 at 200 per Macnaughton J.

25.

Federal Commr of Taxation v Barrett (1973) 129 CLR 395 at 406.

26.

Bertram v Armstrong & De Mamiel Constructions Pty Ltd (1978) 23 ACTR 15 at 19.

27.

Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46 at [31].

28.

See, eg, Green v Victorian Workcover Authority [1997] 1 VR 364; Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438.

29.

Under the Superannuation Contribution (Guarantee) Administration Act 1992 (Cth).

30.

See, eg, Queensland Stations Pty Ltd v Federal Commr of Taxation (1945) 70 CLR 539.

31.

(2001) 207 CLR 21; 181 ALR 263; see 26.4.

32.

Vabu Pty Ltd v Federal Commr of Taxation (1996) 33 ATR 537.

33.

(2001) 207 CLR 21; 181 ALR 263 at [31]; the same point is made by Ward LJ in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] 4 All ER 1152 at [59].

34.

[1980] 2 NSWLR 542 at 557 per Reynolds JA (CA).

35.

Henson v Perth Hospital (1939) 41 WALR 15.

36.

Gold v Essex County Council [1942] 2 KB 293; 2 All ER 237 (CA).

37.

Collins v Hertfordshire County Council [1947] KB 598; 1 All ER 633; Cassidy v Ministry of Health [1951] 2 KB 343; 1 All ER 574 (CA).

38.

Cassidy v Ministry of Health, fn 37 above.

39.

Roe v Minister of Health [1954] 2 QB 66; 2 All ER 131 (CA).

40.

Samios v Repatriation Commn [1960] WAR 219; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 560–1 per Reynolds JA (CA).

41.

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 599 per Samuels JA (CA).

42.

Gold v Essex County Council [1942] 2 KB 293 at 301; 2 All ER 237 at 242 per Greene MR (CA).

43.

Non-delegable duties are discussed in 26.26.

44.

Per Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343 at 363; 1 All ER 574 at 586–7.

45.

Cf the comments of Mason J in Commonwealth v Introvigne (1982) 150 CLR 258 at 270; 41 ALR 577 at 587.

46.

Stevenson, Jordan and Harrison Ltd v Macdonald and Evans [1952] 1 TLR 101 at 111 (CA).

47.

For example, Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 295; 2 All ER 956 at 971 per Denning LJ (CA): ‘It depends on whether the person is part and parcel of the organisation’; reversed on other grounds [1954] AC 584; 1 All ER 969 (HL).

48.

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 27; 63 ALR 513 at 519–20 per Mason J.

49.

[1947] AC 1; [1946] 2 All ER 345 (HL).

50.

Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1 at 17; [1946] 2 All ER 345 at 351; Steel Structures Ltd v Rangitikei County [1974] 2 NZLR 306 at 311 (CA).

51.

Cf Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2009] QB 725; [2008] EWCA Civ 1257 at [56].

52.

Lindsay v Union Steam Ship Co of New Zealand Ltd [1960] NZLR 486 at 493 per Adams J. This does not, however, prevent the parties from agreeing that one shall indemnify the other for any liability arising from the conduct of the borrowed employee: State Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228.

53.

Presumably unskilled workers are more susceptible to control by the temporary employer since they will need to be told how to do the job.

54.

Denham v Midlands Employers Mutual Assurance Ltd [1955] 2 QB 437 at 444; 2 All ER 561 at 564 per Denning LJ. The onus of proving otherwise lies on the permanent employer: Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1; [1946] 2 All ER 345.

55.

Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 507 at 517; [1942] 1 All ER 491 at 496 per Lord Wright (HL).

56.

[2006] QB 510; [2005] 4 All ER 1181.

57.

See also Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 at [82]–[86], where a differently constituted Court of Appeal accepted the correctness of the Viasystems decision, but found that it did not apply to the facts before it. In Catholic Child Welfare Society v Various Claimants [2012] UKSC 56, Lord Phillips, speaking for the Court, noted at [21] that the Viasystems case represented a ‘sound and logical incremental development of the law.’

58.

Horne v R [1947] NZLR 538 (CA).

59.

(1945) 46 SR (NSW) 129 (FC).

60.

[1999] 1 NZLR 641 (CA).

61.

Ibid at 654.

62.

[2012] UKSC 56.

63.

[2012] 4 All ER 1152; [2012] EWCA Civ 938.

64.

[2012] UKSC 56 at [56]–[57] per Lord Phillips, speaking for the court.

65.

Ibid at [3] per Lord Phillips.

66.

(2007) 70 NSWLR 565 (CA), discussed at 26.54.

67.

‘Victims to be able to sue Church’, Sydney Morning Herald, 20 November 2012, p 1.

68.

See, eg, Permanent Trustee Australia Ltd v Valeondis (2009) 105 SASR 458 at [27]–[30] per Bleby J, at [60]–[62] per Gray J (FC).

69.

Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248 at 254–5; 2 All ER 344 at 347–8 per Greene MR (CA). Liability also depends upon knowledge by the principal or the agent of the falsity of the statement, an issue dealt with in 23.35.

70.

Thompson v Henderson & Partners Pty Ltd (1989) 51 SASR 431 at 440–1 per Matheson J (aff’d (1990) 58 SASR 548 (FC)); cf Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462; [1981] 3 All ER 65 (PC), in which the principal was not liable because it had not authorised the agent to make the statements sued on; and see NMFM Property Pty Ltd v Citibank Ltd (2000) 107 FCR 270; 186 ALR 442 at [679] per Lindgren J (principal not liable for tortious conduct of sub-agents).

71.

(1931) 46 CLR 41.

72.

Ibid at 49–50 per Dixon J.

73.

The undertaking contained in his contract not to disparage rival companies was held not to limit his authority: see further 26.50.

74.

See also the comments on the Colonial Mutual case in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46; see 26.2.

75.

See, eg, New Zealand Guardian Trust Co Ltd v Brooks [1995] 1 WLR 96 (PC). It has been held that a company is not vicariously liable for the acts of a director of a subsidiary company, despite the director having been appointed by the holding company (Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1991] 1 AC 187; [1990] 3 All ER 404 (PC)), but that decision has been trenchantly criticised: Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30 at 92–8 per Thomas J.

76.

See, eg, Armagas Ltd v Mundogas SA [1986] AC 717 at 783; 2 All ER 385 at 394 per Lord Keith (HL).

77.

Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517.

78.

Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577.

79.

Discussed in 13.21ff.

80.

Liability here will depend upon whether the driver was acting in the course and scope of employment: eg, Joss v Snowball (1969) 72 SR (NSW) 218 (CA) (no liability where driver was merely permitted to give a passenger a lift); Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 (FC) (no liability where lorry involved in accident after day’s work was over).

81.

(1960) 103 CLR 215.

82.

[1973] AC 127; [1972] 2 All ER 605.

83.

As was the case in Soblusky v Egan (1960) 103 CLR 215 at 231.

84.

Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 320 per Jordan CJ (FC). In Greenwood v Commonwealth [1975] VR 859, vicarious liability was imposed where the agent was driving his own car (naval rating on duty, driving from Melbourne to Sydney).

85.

Barnard v Sully (1931) 47 TLR 557; Manawatu County v Rowe [1956] NZLR 78 (CA); Jennings

v Hannan (No 2) (1969) 71 SR (NSW) 226 (CA); Parry v Flesser [1953] QWN 13 (FC). 86.

Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226 at 234 per Walsh JA (CA).

87.

Hewitt v Bonvin [1940] 1 KB 188 at 194–5 per du Parcq LJ (CA).

88.

[1982] 1 NZLR 184.

89.

The court also held that, although, as the owner, she could have refused to allow him to drive and, as a matter of law, have controlled the manner of driving, she had, on the facts, relinquished all control: [1982] 1 NZLR 184 at 189 per Chilwell J.

90.

Launchbury v Morgans [1973] AC 127; [1972] 2 All ER 605.

91.

Ormrod v Crosville Motor Services Ltd [1953] 2 All ER 753 (CA).

92.

Manawatu County v Rowe [1956] NZLR 78.

93.

Norwood v Navan [1981] RTR 457 (CA).

94.

But not if she had unilaterally remembered to pick his suit up at the cleaners: Launchbury v Morgans [1973] AC 127 at 139; [1972] 2 All ER 605 at 613 per Lord Dilhorne.

95.

[1979] RTR 437 (CA).

96.

Accident Compensation Act 2001 (NZ); Motor Accidents (Compensation) Act 1979 (NT); see generally 12.40 and 12.34 respectively.

97.

Motor Accidents Compensation Act 1999 (NSW) Ch 2; Motor Accident Insurance Act 1994 (Qld) Pt 3; Motor Vehicles Act 1959 (SA) Pt 4; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic) Pt 7; Motor Vehicle (Third Party) Act 1943 (WA); Road Transport (Third Party Insurance) Act 2008 (ACT) Ch 2.

98.

Soblusky v Egan (1960) 103 CLR 215 at 231.

99.

Marsh v Absolum [1940] NZLR 448 (CA) (recovery of damages where thief had stolen the car); Waugh v Waugh (1950) 50 SR (NSW) 210 at 212 per Street CJ (FC).

100. (2000) 204 CLR 333; 175 ALR 217. 101. Ibid at [256] per Gummow J, [311] per Hayne J and [359] per Callinan J; cf Gleeson CJ at [7]– [10], who considered that any such principle could not be confined to motor vehicles. 102. (2004) 61 NSWLR 599 (CA). 103. Even if that other would have a defence, the principal may still be liable: Barker v Braham (1773) 3 Wils KB 368; 95 ER 1104 (defendant authorised sheriff to arrest plaintiff on an illegal warrant; although the sheriff was protected from liability by reason of acting under the warrant, the defendant was still liable in false imprisonment). 104. Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 647 per Latham CJ. 105. (1853) 2 E & B 767; 118 ER 955. 106. Hurlstone v London & Electric Ry Co (1914) 30 TLR 398 (CA). 107. Cf M’Laughlin v Pryor (1842) 4 Man & G 48; 134 ER 21. Mere failure to object or other passive acquiescence would not be enough. 108. (1931) 45 CLR 548. 109. Ibid at 552–3. 110. Freeman v Rosher (1849) 13 QB 780; 116 ER 1462.

111. Hilbery v Hatton (1864) 2 H & C 822; 159 ER 341. 112. For example, Dalton v Angus & Co (1881) 6 App Cas 740 (HL); Harris v Carnegie’s Pty Ltd [1917] VLR 95; see generally 14.38. 113. Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 at 653 (CA). 114. For example, Hosking v De Havilland Aircraft Co Ltd [1949] 1 All ER 540. 115. Cf Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 645 per Latham CJ. 116. Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 (CA), as explained in Cashfield House Ltd v David & Heather Sinclair Ltd [1995] 1 NZLR 452 at 462 per Tipping J; see also The Pass of Ballater [1942] P 112 at 118 per Langton J; Robinson v Beaconsfield Rural Council [1911] 2 Ch 188 (CA). 117. See generally Swanton, ‘Non-delegable Duties: Liability for the Negligence of Independent Contractors’: Part I (1991) 4 JCL 183; Part II (1992) 5 JCL 26. 118. Per Lord Wright in Wilsons & Clyde Coal Co v English [1938] AC 57 at 83–4; [1937] 3 All ER 628 at 643 (HL); see also Hughes v Percival (1883) 8 App Cas 443 at 446 per Lord Blackburn (HL). 119. As indicated by this dictum the idea of non-delegable duties is not confined to the employment of independent contractors. The term is, for example, sometimes used to describe the personal nature of an employer’s duty to take reasonable care to establish and maintain a safe system of work for employees. It has been held repeatedly that this duty cannot be discharged merely by the employment of competent delegates (whether they be independent contractors or employees): see, eg, McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906; 2 All ER 878 (HL). 120. (2003) 212 CLR 511; 195 ALR 412; the case is considered further in 26.56. 121. Ibid at [34] per Gleeson CJ, [265] per Gummow and Hayne JJ, [294] per Kirby J and [339] per Callinan J. 122. See Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 at [27] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 at [20]. 123. This lack of explanation of the basis of liability may be a reason for the differences of opinion in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 as to the circumstances in which a landlord may owe such a duty to the tenant or his or her family. 124. (1984) 154 CLR 672 at 687; 55 ALR 225 at 235 per Mason J. 125. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550–1; 120 ALR 42 at 62. 126. (2007) 230 CLR 22; 223 ALR 200. 127. Ibid at [24] per Gleeson CJ, at [65] per Kirby J, at [156] per Hayne J, at [188]–[190] per Callinan J, at [193] per Crennan J. 128. (1984) 154 CLR 672; 55 ALR 225. 129. Ibid at 688; 236 per Mason J; see also Jakovich Transport & Earthmoving Pty Ltd v Spiral Tube Makers Pty Ltd (2000) 31 MVR 141 (WACA). 130. [1987] AC 906 at 919; 2 All ER 878 at 887 per Lord Brandon. The non-delegable duty extends not merely to devising a safe system of work but also to its operation. So the employer was held liable where its independent contractor (a tug boat operator) had abandoned the safe system of work which had been devised and operated in its place a manifestly unsafe system. See also

Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 at [132]–[135] per McClellan CJ at CL (in a large and complex construction site, a subcontractor employer cannot delegate its duty to an employee to the site safety committee). 131. TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 (CA) at [41] per Mason P. 132. Commonwealth v Introvigne (1982) 150 CLR 258 at 271; 41 ALR 577 at 587 per Mason J; Ramsay v Larsen (1964) 111 CLR 16 at 28 per Kitto J; Carmarthenshire County Council v Lewis [1955] AC 549; 1 All ER 565 (HL). 133. Hence a non-delegable duty is not imposed for the conduct of an independent contractor providing educational services at a location remote from the school, in circumstances where the school has no control over the manner in which those services are provided: Woodland v Essex County Council [2012] EWCA Civ 239. 134. As to the possible vicarious liability of a school authority for the intentionally criminal acts of an employee, see New South Wales v Lepore (2003) 212 CLR 511; 195 ALR 412, discussed in 26.56. 135. Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1968] 1 All ER 1068 (casualty department). 136. The development of this approach in England can be traced from the judgment of Lord Greene MR in Gold v Essex County Council [1942] 2 KB 293 at 301; 2 All ER 237 at 242 (CA) through that of Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343 at 362–3; 1 All ER 574 at 586 (CA) to those of Denning LJ and Morris LJ in Roe v Minister of Health [1954] 2 QB 66 at 82 and 90; 2 All ER 131 at 137 and 141 (CA). 137. Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 605 per Samuels JA (CA). 138. As was held to be the outcome by the majority of the NSW Court of Appeal in Ellis’s case; cf the view of Kirby P (at 568–9) that no distinction should be drawn between any of the medical practitioners who may attend a patient in hospital, so that the hospital would owe a non-delegable duty in respect of them all, to all its patients. 139. Elliott v Bickerstaff (1999) 48 NSWLR 214 esp at [101], [102] (CA). 140. Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 561–2 per Reynolds JA (CA). 141. (2005) 143 FCR 217; 216 ALR 252. 142. Ibid at [207]. 143. Hughes v Percival (1883) 8 App Cas 443 (HL) (party wall negligently cut into while contractor was rebuilding part of adjoining premises); Johns v Delaney (1890) 16 VLR 729 (right of support). 144. (1994) 170 CLR 520; 120 ALR 42. 145. (1866) LR 1 Ex 265; aff’d (1868) LR 3 HL 330. For a discussion of the rule see, eg, the first edition of this book, Chapter 15, p 495ff. 146. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551; 120 ALR 42 at 62–3 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. 147. See also Simpson v Blanch (1998) Aust Torts Reports 81-458 at 64,783 per Beazley JA (NSWCA); but cf Walker v Adelaide City Corporation (2004) 88 SASR 225 at [300]–[315] per Perry J (demolition and erection of building, even in immediate proximity to an adjoining building, is not ‘ultra-hazardous’ for these purposes) and Transfield Services (Australia) Pty Ltd

v Hall (2008) 75 NSWLR 12 at [90] per Campbell JA (defendant not occupier of premises from which the danger arose). 148. Honeywill & Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191. 149. Stoneman v Lyons (1975) 133 CLR 550 at 563; 8 ALR 173 at 183 per Stephen J, at 574–5; 192 per Mason J; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29–30; 63 ALR 513 at 521 per Mason J, at 42–3; 530 per Wilson and Dawson JJ. 150. 179 CLR at 558–60; 120 ALR at 68–9. 151. See, eg, Glenmont Investments Pty Ltd v O’Loughlin (No 2) (2000) 79 SASR 185 at [151] (FC). 152. See Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 (CA); Cashfield House Ltd v David & Heather Sinclair Ltd [1995] 1 NZLR 452 at 460–6 per Tipping J. 153. [1979] 2 NZLR 234 at 240–1 per Cooke and Somers JJ. 154. Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA); Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163; see 13.66. 155. Cf Zumpano v Montagnese [1997] 2 VR 525 at 553 per Tadgell and Phillips JJA, who suggest that the builder might be liable, in such circumstances, for neglect in instruction and supervision (as discussed in 26.25), rather than because of the imposition of a non-delegable duty. 156. [1989] AC 177 at 209–10; [1988] 2 All ER 992 at 1004 per Lord Bridge. 157. See Invercargill City Council v Hamlin and Bryan v Maloney, fn 154 above. 158. By Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 686; 55 ALR 225 at 234. 159. As in Vial v Housing Commn of New South Wales [1976] 1 NSWLR 388 (CA) (cleaning stairs); Woodward v Mayor of Hastings [1945] KB 174; [1944] 2 All ER 565 (CA) (shovelling snow); Bloomstein v Railway Executive [1952] 2 All ER 418 (securing protruding bolt). 160. As in Voli v Inglewood Shire Council (1963) 110 CLR 74 (architect); Thomson v Cremin [1953] 2 All ER 1185 (HL). 161. Haseldine v CA Daw & Son Ltd [1941] 2 KB 343; 3 All ER 156 (CA); Wells v Cooper [1958] 2 QB 265; 2 All ER 527 (CA). 162. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615, discussed in 7.37ff. 163. Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53]. 164. AFA Airconditioning Pty Ltd v Mendrecki (2008) 101 SASR 381 at [137]–[139], relying on the earlier views of Doyle CJ in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 at [39]–[44]. 165. (1912) 28 TLR 494 (CA). 166. Ibid at 495 (emphasis supplied); see also Hardaker v Idle District Council [1896] 1 QB 335 at 342 per Lindley LJ (CA). 167. For all the apparent clarity of that statement, it has not proved easy to apply; cf Stephen J in Stoneman v Lyons (1975) 133 CLR 550 at 564; 8 ALR 173 at 184 who commented upon ‘the search for the elusive criteria’ which serve to identify acts of collateral negligence. 168. Many of the old cases state the rule rather differently by saying that the employer is not liable where the contractor does something collateral to the contract: eg, Hole v Sittingbourne &

Sheerness Ry Co (1861) 6 H & N 488 at 497; 158 ER 201 at 205 per Pollock CB; Penny v Wimbledon Urban District Council [1899] 2 QB 72 at 76 per AL Smith LJ (CA). The formulation in the text is preferred because the contract cannot affect the scope of the duty of the employer — the contractor may do an act within the area of the contract itself, and yet the employer may not be liable because it is outside the area of the latter’s duty in tort; conversely, the employer may be liable for acts or omissions collateral to the contract if they are within the scope of its duty; cf Robinson v Beaconsfield Rural Council [1911] 2 Ch 188 (CA). 169. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 559; 120 ALR 42 at 68–9 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. 170. Cassidy v Ministry of Health [1951] 2 KB 343 at 365; 1 All ER 574 at 588 per Denning LJ (CA). For the difficulty in ascertaining exactly the defendant’s duty for the purpose of this rule, see Salsbury v Woodland [1970] 1 QB 324 at 348–9; [1969] 3 All ER 863 at 878 per Sachs LJ (CA). 171. See also Rowe v Herman [1997] 1 WLR 1390 (CA) (building contractor’s failure to clear the adjoining roadway after completing construction work held to be such ‘casual negligence’ as not to render the employing householder liable). 172. (1915) 85 LJKB 270 (Div Ct). 173. Briess v Woolley [1954] AC 333; 1 All ER 909 (HL). 174. [1946] 1 All ER 202 at 204 per Uthwatt J. 175. The lack of a duty on the part of the employer arose from the fact that the plaintiff was a trespasser. Since Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615, such a duty may be held to exist: see 7.39ff. 176. [2007] 1 AC 224; [2006] 4 All ER 395 at [15] per Lord Nicholls. 177. [1956] AC 627; 1 All ER 403 (HL). 178. [1965] AC 656; [1964] 2 All ER 999 (HL). 179. (1957) 97 CLR 36. 180. Ibid at 58 and 66 respectively. 181. Ibid at 57. 182. (1965) 112 CLR 295 at 301. 183. Commonwealth v Connell (1986) 5 NSWLR 218 at 223 per Glass JA (CA); Cowell v Corrective Services Commn of NSW (1988) 13 NSWLR 714 at 731–2 per Clarke JA (CA); De Bruyn v South Australia (1990) 54 SASR 231 at 235 per King CJ (FC). 184. (2001) 207 CLR 21; 181 ALR 263 at [34] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ. 185. (2004) 28 WAR 555. 186. Cf Waugh v Waugh (1950) 50 SR (NSW) 210 (FC) and Broom v Morgan [1953] 1 QB 597; 1 All ER 849 (CA) in which, in applying the ‘master’s tort’ theory, the then available inter-spousal immunity (see 29.15) protected the tortfeasor but not the latter’s principal or employer. 187. For the circumstances in which such an award might be made, see 27.10ff. 188. See the comments of Blanchard J in S v Attorney-General [2003] 3 NZLR 450 at [94]. 189. Those purposes are discussed at 27.10. 190. See Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122; [2001] 3 All ER

193 at [79] per Lord Hope, but cf at [125]ff per Lord Scott; Peeters v Canada (1993) 108 DLR (4th) 471 at 482; Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065 at [48] (CA); New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [41]–[60]; Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354 (CA). 191. See generally Walker, ‘Vicarious Liability for Exemplary Damages: A Matter of Strict Liability?’ (2009) 83 ALJ 548; Todd, ‘Vicarious Liability, Personal Liability and Exemplary Damages’ in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law 2011, ch 17. 192. Greenwood v Commonwealth [1975] VR 859 at 860 per Gillard J (FC). 193. For example, Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423 at 427 (PC). 194. For example, Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 at 66 per Lord Dunedin (HL). 195. Bugge v Brown (1919) 26 CLR 110 at 117–18 per Isaacs J. 196. Goh Choon Seng v Lee Kim Soo [1925] AC 550 (PC). 197. [1942] AC 509; 1 All ER 491 (HL). 198. See also Racz v Home Office [1994] 2 AC 45 at 53–4; 1 All ER 97 at 102 per Lord Jauncey (HL) (prison officers’ confinement of plaintiff may have been no more than an unauthorised mode of performing their duties, thus rendering their employer liable for misfeasance in public office); Phoenix Society Inc v Cavenagh (1996) 25 MVR 143 (SASC) (driver with blood alcohol concentration of 0.173 per cent who caused injury while driving still within course of employment). 199. (1949) 79 CLR 370. Cf Pettersson v Royal Oak Hotel Ltd [1948] NZLR 136 (CA) (barman injuring drunken customer by throwing broken glass at him thereby rendered his employer vicariously liable). 200. (1949) 79 CLR 370 at 381–2 per Dixon J. 201. Ibid at 386 per Williams J. 202. Auckland Workingmen’s Club and Mechanics Institute v Rennie [1976] 1 NZLR 278 at 284 per Mahon J; Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25. 203. For example, Rutherford v Hawke’s Bay Hospital Board [1949] NZLR 400 (CA) (fatal assault by one employee on another, motivated by resentment at having been ‘dobbed in’ as responsible for an earlier incident). 204. Hayward v Georges Ltd [1966] VR 202 at 211 per McInerney AJ. The proviso is important; the mere fact that an employee thinks that he or she is acting in the employer’s interest does not always mean that he or she is acting in the course and scope of employment: Kay v ITW Ltd [1968] 1 QB 140 at 153 [1967] 3 All ER 22 at 26 per Sellers LJ (CA). 205. Starks v RSM Security Pty Ltd (2004) Aust Torts Reports 81-763; Sandstone DMC Pty Ltd v Trajkovski [2006] NSWCA 205; Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports 81-921; Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354 (CA); Ryan v Ann St Holdings Pty Ltd [2006] 2 Qd R 486. 206. Beard v London General Omnibus Co [1900] 2 QB 530; cf Kay v ITW Ltd [1968] 1 QB 140; [1967] 3 All ER 22 (CA); Iqbal v London Transport Executive (1973) 16 KIR 329 (CA). 207. Ricketts v Thos Tilling Ltd [1915] 1 KB 644 (CA). And see Ilkiw v Samuels [1963] 2 All ER 879 (CA). 208. (1966) 115 CLR 413; see also Nottingham v Aldridge [1971] 2 QB 739; 2 All ER 751.

209. Greenwood v Commonwealth [1975] VR 859 (FC). 210. Only a close examination of the particular circumstances of the case will reveal whether an employee is acting in the course of employment while travelling to and from work. All factors must be weighed in the balance but none have been found, as a general rule, to predominate: Nancollas v Insurance Officer [1985] 1 All ER 833 at 836 per Donaldson MR (CA); approved in Smith v Stages [1989] AC 928 at 937; 1 All ER 833 at 837 per Lord Goff (HL). 211. (1889) 60 LT 708 (Div Ct). 212. (1834) 6 C & P 501 at 503; 172 ER 1338 at 1339. 213. [1938] SASR 245. 214. See also Whatman v Pearson (1868) LR 3 CP 422 (360 m detour by carter to eat midday dinner at home, during which time his unattended horse ran away causing damage held still to be within the course of employment). 215. (1869) LR 4 QB 476. 216. (1887) 2 CPD 357. 217. Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 at 67 per Lord Dunedin (HL); a worker’s compensation case, but the principles are the same: Bugge v Brown (1919) 26 CLR 110 at 121–2 per Isaacs J, cf at 132 per Higgins J. 218. Where the concept of agency is involved, as with statements in a contractual context, the principal is not liable for a statement made by the agent without authority: Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462; [1981] 3 All ER 65 (PC). 219. [1963] 2 All ER 879 at 889 (CA). 220. See, eg, Bugge v Brown (1919) 26 CLR 110 at 116 per Isaacs J; and see Higgins J at 132; Black Range Tin v Shoobert [1973] WAR 131 (FC). 221. [1942] AC 591; 2 All ER 464 (PC). 222. Ibid at 601; 468. 223. London County Council v Cattermoles (Garages) Ltd [1953] 2 All ER 582 (CA); cf Limpus v London General Omnibus Co (1862) 1 H & C 526; 158 ER 993 (omnibus driver, contrary to instructions, raced a rival omnibus in order to get custom — a direction to the jury that these instructions defined the scope of employment held wrong in law). 224. Colonial Mutual Life Assurance Soc Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41. 225. [1973] WAR 131 (FC); see also Whitfeld v Turner (1920) 28 CLR 97 (fact that employee authorised to light a fire only in case of emergency could not limit employer’s liability). 226. [1919] 1 Ch 1 (CA). 227. So long as the employee can be said to be acting ‘for’ the employer there is no need to prove that the employer has actually ‘benefited’ by that act: see Griffith CJ in Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 at 430–1, citing in this regard Lord Esher in British Mutual Banking Co Ltd v Charnwood Forest Ry Co (1887) 18 QBD 714. 228. [1927] 1 KB 236 (CA). 229. Per Bankes LJ at 240. See also Petrou v Hatzigeorgiou (1991) Aust Torts Reports 81-071 (NSWCA) (plaintiff burnt in course of ‘horseplay’ at work; such conduct seen, in general, as a means of fostering a good work environment, hence within the course of employment).

230. [1927] 1 KB 236 at 245. 231. [2012] VSCA 122. 232. See at [26]–[30]. 233. Ibid at [66]; see also Robson AJA at [87]–[88]. 234. In Keppel Bus Co Ltd v Sa’ad Ahmad [1974] 2 All ER 700 (PC) a bus conductor after a quarrel struck a passenger causing loss of sight of one eye. Even though a conductor’s duties extend to keeping order, this employer was not vicariously liable because there was no evidence of disorder in terms of which his violent conduct would be legitimised. 235. Bugge v Brown (1919) 26 CLR 110 at 117 per Isaacs J; Hayward v Georges Ltd [1966] VR 202 at 211 per McInerney AJ. An early Australian application of this rule is to be found in Macdonald v Dickson (1868) 2 SALR 32 (employer liable for damage caused by employee lighting a fire at a time during which it was forbidden by law so to do). 236. (1867) LR 2 Ex 259. 237. [1912] AC 716 (HL); see also Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248; 2 All ER 344 (CA); Brockway v Pando (2000) 22 WAR 405 (CA). 238. See also Quinn v CC Automotive Group Ltd [2010] EWCA Civ 1412, but cf Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486; [1999] 1 All ER 929 in which the House of Lords required all of the conduct which constituted the employee’s deceit to have been carried out within the course of employment before the employer would be vicariously liable. 239. [1966] 1 QB 716; [1965] 2 All ER 725 (CA). 240. This may be the best explanation of Spencer, Clark & Co Ltd v Goodwill Motors Ltd [1939] NZLR 493, where a garage owner was held not liable for damage caused by one of its employees to a car left overnight at the garage for repair. The employee was instructed to lock the garage. Instead he deliberately left it open and during the night took the car for an illegal joyride. And see Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30 at 78 per Thomas J (company not liable for fraudulent misappropriation of its funds by its senior employees). 241. Barrow v Bank of New South Wales [1931] VLR 323 at 334 per McArthur J (FC); see also Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 381 per Dixon J; cf Carpenter’s Investment Trading Co Ltd v Commonwealth (1952) 69 WN (NSW) 175 at 177 per Kinsella J (taxation officer issued a false assessment, in order to spite a third party; such conduct was so totally incompatible with his employment as not to render the employer vicariously liable). 242. Ffrench v Sestili [2007] SASC 241 at [55]–[56] per Debelle J (with whom Sulan and Layton JJ agreed). 243. Although schools owe a ‘non-delegable’ duty to their pupils, it has been explained in 26.26 that such duties impose liability on the principal only in the case of negligence by the one about whose conduct complaint has been made. 244. (1999) 174 DLR (4th) 45. 245. (1999) 174 DLR (4th) 71. 246. 174 DLR (4th) 45 at [2] per McLachlin J. 247. See also G(ED) v Hammer (2003) 230 DLR (4th) 554 (SCC), in which a school board was held not to be vicariously liable for assaults committed by the janitor at the school.

248. (2004) 236 DLR (4th) 577. 249. The church conceded that it was directly liable for the abuse, by the failure of its bishops to properly direct and discipline the priest concerned, once allegations of abuse were made. 250. [2012] UKSC 56. 251. [2002] 1 AC 215; [2001] 2 All ER 769. 252. [2012] UKSC 56 at [86] per Lord Phillips, giving the judgment of the court. 253. Ibid at [87]. 254. [2008] 3 NZLR 289. 255. (2007) 70 NSWLR 565. 256. [2003] 3 NZLR 450; see also W v Attorney-General [2003] NZCA 150, judgment in which was delivered on the same day as S’s case. 257. Ibid at [70]. 258. (2003) 230 DLR (4th) 513; the government would, however, have been held directly liable for its negligence in placing the children, and in its failure adequately to supervise the fostering, but that claim was statute-barred. 259. (2003) 230 DLR (4th) 567. 260. But see the cases cited in fn 205 above, concerning security guards at nightclubs, each of which relied to some extent on the High Court decision. 261. (2003) 212 CLR 511; 195 ALR 412; noted by White and Orr (2003) 11 TLJ 101; Vines (2003) 27 MULR 612. 262. Ibid at [74] per Gleeson CJ, at [326] per Kirby J. 263. Ibid at [130]. 264. Ibid at [136]; cf the consideration of non-delegable duties in 26.26. 265. Ibid at [243]. 266. Ibid at [342]. 267. Hogg, Monahan and Wright, Liability of the Crown, 4th ed, 2011, 6.7; Kneebone, Tort Liability of Public Authorities, 1998, pp 302–12. 268. The classic authority is Tobin v R (1864) 16 CBNS 310; 143 ER 1148. 269. Judiciary Act 1903 (Cth) s 64; Court Procedures Act 2004 (ACT) s 21; Crown Proceedings Act 1988 (NSW) s 5; Crown Proceedings Act 1993 (NT) s 5; Crown Proceedings Act 1980 (Qld) s 8; Crown Proceedings Act 1992 (SA) s 5; Crown Proceedings Act 1993 (Tas) s 5; Crown Proceedings Act 1958 (Vic) s 25; Crown Suits Act 1947 (WA) s 5. 270. Crown Proceedings Act 1950 (NZ) s 6. 271. The formula used in the above legislation is either that ‘the rights of the parties shall as nearly as possible be the same as in an ordinary case between subject and subject’; or that the same substantive law applies in proceedings against the Crown as in proceedings between subjects. 272. The exception also applies to at least some in the private sector: Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29. 273. The Crown in right of New South Wales and New Zealand is vicariously liable for the tortious

acts of all public officials: Law Reform (Vicarious Liability) Act 1983 (NSW) ss 7, 8, on which see Sneddon v New South Wales [2012] NSWCA 351; Crown Proceedings Act 1950 (NZ) s 6(3), on which see Osgood v Attorney-General (1972) 13 MCD 400. In South Australia, the exception was abolished by the Crown Proceedings Act 1972 (SA) s 10(2) (see South Australia v Kubicki (1987) 46 SASR 282 (FC); De Bruyn v South Australia (1990) 54 SASR 231 at 242 per Legoe J (FC)), and has not been revived by the subsequent repeal of that Act. 274. (1947) 75 CLR 94 at 114. 275. For example, Sawer, ‘Crown Liability in Tort and the Exercise of Discretions’ (1951) 5 Res Jud 7; Atiyah, Vicarious Liability in the Law of Torts, 1967, pp 75–8; Finn, ‘Claims Against Government Legislation’ in Essays on Law and Government, Vol 2, 1996, pp 36–7. 276. Crown Proceedings Act 1947 (UK) s 2(3). 277. See Hogg, Monahan and Wright, Liability of the Crown, 4th ed, 2011, p 174, fn 113; the exception is British Columbia. 278. See Kneebone, ‘The Independent Discretionary Function Principle and Public Officers’ (1990) 16 Mon L R 184 at 203–4. 279. Queensland Law Reform Recommendation 3.5.

Commission,

Vicarious Liability,

Report

No

56,

2001,

280. Australian Law Reform Commission, The Judicial Power of the Commonwealth, Report 92, 2001, Recommendation 25-1. 281. This was the rationale advanced in Enever v R (1906) 3 CLR 969 at 982–3 per Barton J. 282. (1952) 85 CLR 237 at 303–4; endorsed in Irvin v Whitrod (No 2) [1978] Qd R 271 at 276 per Campbell J. 283. The rule no longer applies to police officers (see fn 298), but the same principles are applicable. 284. (1952) 85 CLR 237 at 283–4; see also Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 637; 66 ALR 29 at 33 per Gibbs CJ. 285. Thompson v Williams (1915) 32 WN (NSW) 27. 286. Field v Nott (1939) 62 CLR 660. 287. Grimwade v Victoria (1997) 90 A Crim R 526 (Vic SC). 288. Baume v Commonwealth (1906) 4 CLR 97. 289. Clyne v Deputy Commr of Taxation (NSW) (No 5) (1982) 13 ATR 677 at 682–3 per McGregor J (Fed Ct). 290. Cubillo v Commonwealth (2000) 103 FCR 1; 174 ALR 97 at [1120] per O’Loughlin J, aff’d (2001) 112 FCR 455; 183 ALR 249 at [288]–[293] (FC). 291. A/S Bannockburn v Williams (1912) 12 SR (NSW) 665; Fowles v Eastern & Australia Steamship Co Ltd [1916] 2 AC 556 (PC); see also Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29. 292. Ramsay v Larsen (1964) 111 CLR 16. 293. Thorne v Western Australia [1964] WAR 147; see also Cowell v Corrective Services Commission (1988) 13 NSWLR 714 at 741 per Clarke JA, cf at 724 per McHugh JA (CA). 294. Bennett v Minister for Community Welfare (1988) Aust Torts Reports 80-210 at 68,089 per Nicholson J (WASC); the point was not considered on appeal: (1990) Aust Torts Reports 81-048

(WAFC); (1992) 176 CLR 408; 107 ALR 617. 295. Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 483–4 (FC); McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [220] per Weinberg J (Fed Ct). 296. Enever v R (1906) 3 CLR 969 (wrongful arrest); Irvin v Whitrod (No 2) [1978] Qd R 271 (mistaken shooting); Griffiths v Haines [1984] 3 NSWLR 653 (failure to warn of likely dangers); but see Middleton v Western Australia (1992) 8 WAR 256 (action challenging above decisions not struck out). The Crown will be vicariously liable for the acts of police officers which are not peculiar to their office, such as driving a motor vehicle: Ramsay v Pigram (1968) 118 CLR 271 at 279–80 per Barwick CJ. 297. Goode, ‘The Imposition of Vicarious Liability to the Torts of Police Officers: Considerations of Policy’ (1975) 10 MULR 47; Churches, ‘“Bona Fide” Police Torts and Crown Immunity’ (1980) 6 U Tas L Rev 294. 298. Australian Federal Police Act 1979 (Cth) s 64B; Law Reform (Vicarious Liability) Act 1983 (NSW) Pt 4; Police Service Administration Act 1990 (Qld) s 10.5; Police Act 1998 (SA) s 65; Police Service Act 2003 (Tas) s 84; Police Regulation Act 1958 (Vic) s 123; Police Act 1892 (WA) s 137; Police Administration Act 1978 (NT) Pt VIIA. In the Cth and Qld, the Crown is to be treated as a joint tortfeasor with the police officer, while in the other jurisdictions any liability of the police officer attaches solely to the Crown, provided that the officer was acting in good faith or honestly. Cf Victoria v Horvath (2002) 6 VR 326 (CA) and Holloway v Tasmania (2006) 15 Tas R 127 (FC), in both of which the legislation did not apply, because the respective police officers were found not to have acted in good faith. 299. Baume v Commonwealth (1906) 4 CLR 97. 300. Musgrave v Commonwealth (1937) 57 CLR 514. 301. Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452 (NSWSC).

[page 773]

CHAPTER 27 Remedies

27.1 The various extra-judicial remedies in tort — self-defence (see 6.15), recaption (see 6.24), abatement (see 6.26) and distress damage feasant (see 6.28) — have already been dealt with. This chapter is, in consequence, concerned only with the general principles relating to the judicial remedies of damages and an injunction. The application of the principles relating to damages for personal injury and death is of sufficient importance to require detailed consideration in Chapter 11.

Damages 27.2 This section deals, first, with the various types of damages that may be awarded. It then looks to the major limitations which are placed on the extent of damages available for torts other than negligence by the notions of remoteness, proximate cause and mitigation,1 before considering some of the factors which are taken into account in quantifying the plaintiff’s loss in money terms. The section concludes by discussing those circumstances in which the plaintiff has two different causes of action against the same defendant — whether the two causes of action are both in tort, or in tort and contract or in tort and restitution — and the principles governing the assessment of monetary compensation for each cause of action.

Different types of damages Nominal2

27.3

Although the normal function of an award of damages is to compensate the plaintiff for the injury that has been done, nominal damages, strictly so called, are quite different. They are not regarded as in any sense compensatory, but are awarded in recognition of the fact that a wrong has been done to the plaintiff, even though no harm, physical or financial, has been occasioned by the wrong.3 Nominal damages are available when the defendant has committed a tort actionable per se, but has not thereby caused any hurt to the plaintiff, such as a battery constituted by [page 774] the least touching of the plaintiff, deliberately and without consent,4 or a trespass to land which causes no damage to the property.5 A plaintiff may also be granted nominal damages for the defendant’s breach of contract, and, by extension from that principle, when the defendant’s conduct is both a tort and a breach of contract,6 even though the plaintiff is unable to show that such conduct caused loss.7 Since nominal damages are not designed to be compensatory, they are to be distinguished from an award (in a small or nominal amount) of damages which are intended to restore to the plaintiff what has been lost by reason of the defendant’s tort. Such an award may be made when the loss suffered by the plaintiff is accepted as being real, but is incapable of calculation, for example, the amount granted for loss of expectation of life.8

Contemptuous 27.4 These are damages so small in amount as to be derisory. They are awarded by a jury rather than by a judge, and mark that body’s low opinion of the claim by the plaintiff, or its disapproval of his or her conduct prior to, or at the time of, the commission of the tort. They differ from nominal damages in that they may be awarded in respect of any tort, whether actionable per se or not and in that the fact that they have been awarded might be material in deciding whether to allow costs to the plaintiff.9

General and special damages 27.5 The distinction between these expressions has varied considerably in the course of the law’s development. Originally, ‘special damages’ referred to the items of loss which the plaintiff was obliged to plead and prove in order to demonstrate a cause of action in respect of a tort not actionable per se.10 They were distinguished from ‘general damages’, which were such that the law would presume to flow from certain wrongs.11 This distinction was subsequently overlaid with another, slightly different, one which was entirely a matter of pleading — ‘special damages’ were those which were peculiar to a particular plaintiff, of which notice was required to be given to the defendant, while ‘general damages’ were those which the defendant might assume to have been the consequence of the tort, and for which notice was not necessary.12 These days, however, at least in actions for personal injury, the distinction between the two terms differs from either of those previously obtaining. ‘Special damages’ is taken to refer to those items of loss which the plaintiff has suffered prior to the date [page 775] of trial, and which are capable of precise arithmetical calculation — such as medical or hospital expenses; ‘general damages’ is a compendious term which relates to all injuries which are not capable of such calculation — financial losses to be suffered after the date of judgment and all immaterial injury such as pain and suffering or loss of amenities.13

Recovery in respect of secondary interests14 27.6 In some circumstances (the categories of which are by no means clearly defined) the plaintiff is able to recover a head of damage which is not generally compensable, because that loss is a direct consequence15 of an act of the defendant that is for other reasons unlawful. The clearest example of such recovery is the awarding of damages for loss of a view, when that loss has been brought about by the unlawful act of the defendant, as part of the

damages for the tort derived from public nuisance,16 but the principle has also been applied in the grant of damages for loss of hospitality in an action in slander17 and damages for loss of consortium in a wife’s action in negligence in respect of physical injuries caused to her.18 It has been observed19 that the recovery of damages for a secondary interest marks a stage in the evolution of the law, such recovery in due course being recognised as protecting a primary interest of the plaintiff. This observation is especially true in relation to the recovery of damages for purely financial loss. Initially available only by way of the protection of the plaintiff’s secondary interests when the primary interest of protection of property has been invaded, such damages are now available, in at least a limited range of circumstances, independently of damage to the plaintiff’s property: see 13.44.

Aggravated damages20 27.7 The notion of aggravated damages is one that is by no means clear, and refers to two aspects of compensation. On the one hand, the term is used to denote an award which is increased, beyond what might otherwise have been available, to take account of the defendant’s conduct in the commission of the tort and thereafter up to the hearing of the action. Used in this sense, aggravated damages are ‘compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like’.21 They are available in respect [page 776] of those torts which protect a plaintiff’s reputation, feelings or liberty, including defamation,22 intimidation,23 conspiracy,24 malicious prosecution,25 misfeasance in public office26 and trespass to the person,27 to land,28 and to goods,29 but it is unlikely that aggravated damages in this sense are available in a negligence action.30 In recent years the compensation of the plaintiff’s injured feelings has extended also to those torts which protect economic interests, or physical or bodily integrity. In this case, courts generally refer simply to damages for

mental distress.31 They may be awarded in an action in deceit32 or for negligent misrepresentation,33 an action in conversion34 or for the breach of a gratuitous bailment35 or the negligent performance of professional services,36 especially when that negligence causes defects in the plaintiff’s home,37 or an action in negligence which causes injury to the plaintiff’s home;38 indeed, in a range of circumstances where distress and anxiety are the non-remote consequences of the defendant’s failure to exercise reasonable care.39

27.8 Although it is clear from the examples last cited that the range of mental hurt for which the law of torts provides compensation is increasing, it is still the case [page 777] that damages are not available to recompense for the grief suffered by reason of either the death of40 or injury to41 a loved one,42 nor can one recover for the mental distress arising from being frightened for one’s own safety,43 nor that arising from fear of contracting a disease in the future.44

27.9

Legislation in New South Wales, Queensland and the Northern Territory45 prohibits the award of aggravated damages in an action for personal injury caused by the defendant’s negligence. In light of the fact that the legislation refers to exemplary and punitive damages as well as aggravated damages, the prohibition clearly applies only to damages of the first of the above types of compensation, since any mental distress flowing from the plaintiff’s own personal injury is already compensated for in the award of non-pecuniary damages: see 11.27.

Exemplary damages46 27.10 While the circumstances which might justify an award of aggravated damages are often the same as those which justify the granting of exemplary damages,47 the two heads of damages are quite distinct, and should therefore generally48 be assessed separately.49 Aggravated damages, as has already been observed, are compensatory in nature but the purposes behind an award of exemplary damages are different. These purposes include punishment of

the defendant for a high-handed disregard of the plaintiff’s rights, deterrence of the defendant to prevent him or her from reaping a gain from the wrongdoing, assuaging any feelings on the part of the plaintiff to seek revenge for the hurt done, and marking the condemnation of the court for the defendant’s conduct.50 It is because of these varied purposes of the award that such damages may be awarded against a defendant who is compulsorily insured against liability,51 against one only of a number of joint tortfeasors,52 or against two [page 778] joint tortfeasors in differing amounts for each,53 and, in New Zealand, in an action for personal injury, despite the abrogation of the right to sue for compensatory damages54 by the no-fault accident compensation scheme in that country.55 Although the House of Lords confined English law to three particular categories in which such damages may be awarded,56 no such restriction applies in Australia57 or New Zealand.58 They may be awarded when the defendant has been guilty of ‘conscious wrongdoing in contumelious disregard of another’s rights’59 or has committed a particularly flagrant violation of the plaintiff’s rights;60 the High Court has also accepted that they are available if the defendant’s conduct after the commission of the tort shows a cruel and reckless disregard of the plaintiff, thereby demonstrating the defendant’s callousness and indifference towards the plaintiff in committing the wrong.61 It is not, however, necessary for the plaintiff to show that the defendant has been motivated by malice, in the sense of spite or ill-will.62 For the circumstances in which an employer may be vicariously liable for such an award, see 26.40.

27.11 It follows from the above that, as a general rule, this type of damages is available in relation to those torts in which intention is normally an element. Exemplary damages may be awarded in actions of trespass to the person,63 to goods64 and to land,65 in the intentional torts affecting the plaintiff’s business interests66 including an action for inducing breach of contract,67 in an action for malicious prosecution68 and in an action in deceit.69 They are also available in an action in nuisance causing property

damage70 and for breach of statutory duty.71 Furthermore, such damages may be awarded in an action for personal injuries caused by negligence, in some [page 779] jurisdictions in Australia when that negligence is constituted by the defendant’s reckless disregard of the plaintiff’s rights and the defendant’s obligations,72 and in New Zealand, if the defendant had a conscious appreciation of the risk of causing harm and had run that known risk.73 However, legislation in New South Wales, Queensland and the Northern Territory prohibits the award of exemplary damages in an action for personal injury caused by the defendant’s negligence.74 The uniform defamation legislation in Australia also forbids the award of exemplary damages.75

27.12 There are several limitations on the award of such damages. First, in an action for assault and battery, they may be reduced if the plaintiff has provoked the defendant.76 Secondly, such damages are not available in a claim arising from the death of a family member brought under the local equivalents of Lord Campbell’s Act.77 And, thirdly, if the plaintiff should die before suing the defendant to judgment, the legislation which provides generally for the survival of causes of action expressly excludes a claim for exemplary damages,78 so that they cannot be awarded for the benefit of the plaintiff’s estate. The claim does, however, survive the death of the defendant,79 despite the fact that many of the reasons for the award of this head of damages can no longer apply in such a circumstance.

27.13 A fourth limitation on the award of exemplary damages relates to the defendant’s possible criminal liability for the conduct which is the subject of the civil proceedings. In Australia, the High Court held, in Gray v Motor Accident Commission,80 that if substantial punishment had already been inflicted on the wrongdoer by the criminal courts for substantially the same conduct, exemplary damages were thereby barred.81 The courts in New Zealand have been prepared to go further than that. [page 780]

In Daniels v Thompson,82 a majority of the New Zealand Court of Appeal held that exemplary damages were barred both by the conviction of the wrongdoer and by his or her acquittal, and that civil proceedings should be stayed if criminal proceedings for substantially the same conduct had been commenced or were likely. Although these views were endorsed by the Privy Council on appeal,83 they have been at least partly abrogated by the legislature. The Accident Compensation Act 2001 (NZ) prohibits recourse to the courts of New Zealand for the recovery of compensatory damages for personal injury, but s 319(1) of that Act permits the bringing of proceedings for exemplary damages, while subs (2) renders irrelevant any impact which the criminal law might have had on the wrongdoer’s conduct.84

Limitations on recovery 27.14 Reference has already been made in Chapter 9 to the principles which limit the damages recoverable by the plaintiff in an action in negligence — remoteness of damage, a new intervening force, and the plaintiff’s obligation to do what is reasonable to mitigate the loss. This Part is concerned with the application of those limiting principles to torts other than negligence.

Remoteness of damage 27.15 It has been observed in Chapter 9 that, so far as negligence is concerned, the decision of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1))85 settled the rule that damages are recoverable, so long as they are of a type or kind that was reasonably foreseeable by the defendant at the time of the wrongful act. The subsequent decision of the Board in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2))86 expressly extended the same limiting rule to the tort derived from public nuisance. Although authority is sparse, it appears that the same principle operates with respect to the torts of ‘strict’ liability,87 but that, for wrongs committed intentionally, the tortfeasor is liable for the natural and probable consequences of that conduct, whether they were foreseeable or not. With regard to private nuisance, there is little doubt but that, once the

plaintiff has shown that the use or enjoyment of land has been unreasonably interfered with, the defendant is liable for any type of damage which was a natural and foreseeable consequence of that interference.88 So, too, in the case of liability for injury done by animals; the owner of trespassing cattle is liable only if the harm inflicted is of a kind that the animal is foreseeably likely to inflict,89 and the owner of a dog will not be held accountable for damage done by the animal which the owner could not [page 781] reasonably have foreseen.90 It is to be assumed that a similar restriction applies to the damages recoverable for breach of statutory duty. The damages recoverable for the intentional torts derived from trespass are subject to the limitation that such a kind of loss must have been the natural and probable consequence of the defendant’s act. This applies whether the trespass is to the plaintiff’s land91 or to chattels.92 If the tort is one which depends upon an intentional act by the defendant, but which is derived from the action on the case — such as inducing breach of contract, intimidation, injurious falsehood or deceit — it has now been settled by the High Court, in Palmer, Bruyn & Parker Pty Ltd v Parsons,93 that the same test applies, and that the defendant is liable for losses which were either intended, or were the natural and probable consequence of the tortious act, and thus within the defendant’s presumed intention. Although that case was one of injurious falsehood, the reasoning of the High Court is applicable to other intentional torts. Thus, in relation to deceit, it has now been settled by the House of Lords94 that the defendant is liable for all the losses which are a direct consequence of the transaction induced by the fraud, a view which has been supported by the High Court.95

New intervening force 27.16 The discussion in Chapter 9, in relation to the tort of negligence, has shown that the chain of causation between the defendant’s wrongful act and the ultimate harm for which the plaintiff seeks compensation will be regarded as broken by a new intervening force only if that force was an event, or the

act of a third party, which was not within the risk created by the defendant’s act or, if that force was the act of the plaintiff, the latter has acted unreasonably: see 9.15. Although judicial discussion of the effect of a new intervening force in relation to torts other than negligence is even more meagre than that of remoteness of damage, it is suggested that the principles applicable to an action in negligence also apply to the other torts. The effect of a new intervening force constituted by the act of a third party has arisen in relation both to actions in trespass and to actions in nuisance. In proceedings for trespass to goods, in which the defendant wrongfully impounded the plaintiff’s cattle, the defendant was held liable for the injury suffered by the animals as a result of the actions of an unknown third party, because the risk of these actions was one which the defendant had taken upon himself by his wrongful impounding.96 Where, on the other hand, the trespass action was one of false imprisonment, the defendant was held not to be liable for a continuation of the imprisonment by others whom he had no means of controlling.97 Although no express reference to the point is made [page 782] in the judgments, it is to be assumed that the continuation of the imprisonment could not be regarded as within the risk created by the defendant’s act. With regard to actions in nuisance, it has already been observed in 14.47 that if the interference or escape is the result of the acts of a third party, the defendant will be relieved of liability only on affirmative proof that he or she could not reasonably foresee the possibility of harm to the plaintiff by that means. Although the judgments are often cast in terms of reasonable foreseeability, there is no difference in substance between that notion and one of the risk created by the defendant’s acts.

27.17 Where the new intervening force is a natural event, not brought about by human agency, that event will not break the chain of causation if it was one which the defendant must have realised was not unlikely and of which, therefore, he or she has taken the risk. In what appears to be the only authority, outside the fields of negligence and actions for breach of contract, the defendant, whose cattle had trespassed onto the plaintiff’s land, was held liable for the loss caused by the death of a number of the plaintiff’s stock;

those deaths were the result, not only of the defendant’s cattle having eaten or destroyed a large part of the feed on the plaintiff’s land, but also of a severe drought, an occurrence with which every farmer in Australia is familiar.98

27.18 In those cases in which the new intervening force is an act of the plaintiff, the issue is not whether the plaintiff’s act was within the risk created by the defendant’s tort, but whether that act was, in all the circumstances, reasonable.99 The reason for the difference from the principles discussed above is that there is a close correlation between a new intervening force constituted by the act of the plaintiff and the notion of mitigation of loss. The former concept is generally employed when the plaintiff has done some positive act after the commission of the tort by the defendant, whereas the latter is usually relied on when the plaintiff has failed to take some precaution which was reasonable in the light of the defendant’s wrong.100 Since mitigation is concerned with whether or not the plaintiff has acted reasonably, the issue of whether an act by the plaintiff constitutes a new intervening force is answered by reference to the same yardstick. Thus, when the defendant committed the tort derived from public nuisance by placing a fence across a public road, the plaintiff was held unable to recover for the damage done to his horses resulting from his ‘injudicious’ action in leaving the animals untethered while he sought to remove the obstruction.101

Mitigation 27.19 ‘Mitigation of damage’ is a phrase of differing content, depending upon the context in which it is used. For instance, in an action in trespass, whether to land or to goods, the damages may be mitigated, or reduced, by any amount which the defendant has paid, but which the plaintiff would have had to pay had he or she retained possession.102 In other circumstances, mitigation of damage is seen as the converse of [page 783] aggravation, so that, for instance, the conduct of the plaintiff, prior to the commission of the wrong, may be a factor in reducing an award of damages for defamation103 or trespass to the person.104

The sense in which the phrase is used here refers to some action which the plaintiff might have undertaken, but failed to, after the commission by the defendant of the tort, which would have reduced the measure of the loss suffered by the plaintiff. If the plaintiff’s inaction is classified as unreasonable in the circumstances, recovery will be limited to that part of the loss which would have been suffered had the necessary mitigating action been undertaken. The circumstance in which mitigation, in this sense, is most commonly considered by the courts is that in which the plaintiff has failed to undergo medical treatment, after suffering physical injury by reason of the defendant’s negligence.105 But the same principles are applicable to other torts. Thus, if the defendant has committed a private nuisance by withdrawing support from the plaintiff’s land, it has been held to be unreasonable inaction on the plaintiff’s part to allow the land to be further eroded by the weather over a considerable period,106 or, if the defendant has wrongfully retained possession of a profit-earning chattel of the plaintiff, the latter may be denied damages for the profits lost because of that retention, if he or she could reasonably have acquired a substitute,107 unless that acquisition is beyond his or her financial means.108

27.20 There are two corollaries which flow from the above principles. First, if the plaintiff has in fact undertaken some action, after the defendant has committed the wrong and as a direct consequence thereof, which reduces the amount of the loss suffered by the plaintiff, the damages are to be reduced to the extent of the loss in fact avoided.109 And secondly, if the plaintiff makes a reasonable attempt to mitigate the loss, the result of which is to increase the amount of the damage, he or she is still entitled to recover that additional amount.110

27.21 Because mitigation of damage is concerned with the conduct of the plaintiff after the commission of a tort by the defendant, it is to be clearly distinguished from contributory negligence, which relates solely to the steps which the plaintiff might have taken prior to the defendant’s wrongful act.111 A distinction which is less easy to draw, but which is of considerable practical importance, is that between mitigation [page 784]

of damage and acts of the plaintiff constituting a new intervening force. It has been observed in 27.18 that the nature of the distinction is between the plaintiff’s inaction and action. The effect of the distinction is a shift of the onus of proof. If the conduct of the plaintiff is regarded as raising the issue of a new intervening force, it is for that party to prove, in accordance with general principles, that the loss suffered after, and by reason of, that conduct is causally related to the defendant’s wrongful act: see 9.13. Where, on the other hand, the plaintiff’s conduct is seen as raising issues of mitigation, the onus is on the defendant to show the nature, and reasonableness, of the course which the plaintiff ought to have followed.112

Issues of quantification 27.22 Once it has been determined that a plaintiff is entitled to recover a particular head of loss, the court must quantify that loss in monetary terms. The general principle is that, by the award of damages, the plaintiff is to be put in the same position as was the case before the tort was committed.113 In the application of that principle, two matters require special mention: (1) the effect of income tax; and (2) the award of interest as damages, as a means of minimising the effect of monetary inflation over the period between the commission of the tort and the date of judgment.

The effect of income tax 27.23

If an award of damages comprises, in whole or part, a sum representing income which the plaintiff might have earned but for the tort, the issue of whether that sum is to be calculated on a pre-tax or post-tax basis depends, in all jurisdictions other than Queensland,114 upon whether the award of damages itself is liable to income tax. If the award is regarded by the revenue as indemnity or compensation for income that would have been taxable, it is taxable in the hands of the plaintiff.115 Its assessment is to be calculated on the basis of the gross (pre-tax) income which the plaintiff might have received but for the wrong.116 Where, on the other hand, the award is treated by the revenue as a receipt of a capital nature, and therefore not subject to income tax, its assessment must be arrived at on a consideration of the net (post-tax) amounts which the plaintiff would have received.117

[page 785]

Interest as damages 27.24 The right of a plaintiff to recover a sum by way of interest on the ‘primary’ loss, for the period between the suffering of that loss and the date of judgment, is an issue which has undergone substantial development, at the hands both of legislatures and the courts, over the years. The judicial development has been towards a greater preparedness to award an amount representing the loss of use of money, while the legislative incursions have resulted in the provision of statutory interest for the period up to the date of judgment. Before considering each of these developments, it is necessary to explain, first, the nature of interest payments in general and, secondly, the state of the law prior to these developments.

27.25 The nature of interest From the standpoint of economic theory, the interest charged by a lender comprises three elements — the lender’s assessment of the rate of monetary inflation over the period of the loan, the price which the lender puts on not having the use of that money for that time, and a factor to cover the risk of the loan not being repaid.118 Although this economic theory is tempered in practice by other matters such as the relationship between supply and demand and the effects of government policy, it remains the basis for the determination of interest rates. These economic principles may be applied to the assessment of damages in tort in the following way. If the defendant, by the wrong, has caused a loss to the plaintiff, but does not recompense the plaintiff until judgment is given against the defendant, the latter has forced the plaintiff to make a loan equivalent to the amount of the loss initially inflicted. Although (it may be assumed) the plaintiff has not suffered the risk of not being paid, he or she has suffered the loss of the use of that money and (if the amount of the primary loss is calculated in terms of money values current at the time the loss was first suffered119) has suffered the harm caused by the fall in the value of money between the date of the infliction of the primary loss and the date of judgment. Furthermore, these secondary losses — of the use of the money and its depreciation in value — arise from the application of general economic

theory of which an ordinary person would be well aware. These losses ought, therefore, to be within the reasonable foresight of a tortfeasor, and thus not too remote a consequence of the initial harm. It would consequently appear to follow, as a matter of principle, that a defendant should be liable, not only for the primary loss which the plaintiff suffers, but also for interest on that primary loss, for the period during which the plaintiff has been kept out of the money, at a rate approximating that available for safe investments over the time. Although such a result might be seen as the necessary outcome of the application of principles both of law and economics, it is one that has been arrived at only in recent times, and is contrary to the generally accepted rule of the common law.

27.26 The general common law rule Although the plaintiff in an action in Admiralty, or one who seeks equitable relief, is entitled to recover interest on the amount found to be due, it had been generally accepted that in an action at [page 786] common law, either in tort or contract, there was no right to claim interest on a debt or damages found to be payable to the plaintiff. This rule was established by the decision of the House of Lords in London Chatham & Dover Ry Co v South Eastern Ry Co,120 a case which was concerned with the recovery of a debt in a contract action but which had been taken, both in Australia121 and New Zealand,122 as applying at least to claims for unliquidated damages in contract. And, in an obiter comment in Marine Board of Launceston v Minister of State for the Navy,123 Latham CJ assumed that the same rule applied to a claim for unliquidated damages in tort.

27.27 Judicial developments The reason given by members of the House of Lords in the London Chatham & Dover Ry case for their decision was an adherence to the precedent established by the Court of King’s Bench in Page v Newman.124 The case has, however, subsequently been explained as resting on the notion of remoteness. At least in a contract action the decision had been justified as raising a presumption that the loss caused by withholding

the payment of money is not within the contemplation of the parties as a serious possibility at the time of entering into the contract; it was therefore inapplicable if that presumption were rebutted by proof that the defendant had been made aware of the likelihood of that loss.125 More recently, the House of Lords held, in Sempra Metals Ltd v Inland Revenue Commissioners,126 that the courts in England have a common law jurisdiction to award interest, either simple or compound, as an aspect of the damages that may be awarded for an action in tort or for breach of contract. The rationalisation of the London Chatham & Dover Ry case as an aspect of the remoteness rules was applied by the High Court of Australia to an action against a professional (which may be framed either in contract or in tort) in such a way as substantially to limit the applicability of the House of Lords decision to actions in tort. Hungerfords v Walker127 concerned a claim to recover from the appellant firm of accountants, amounts of income tax which the respondents (the plaintiffs in the action) had overpaid during the financial years ending in June 1973, 1974 and 1975, and had been unable to recover from the revenue authorities, together with compound interest thereon up to the date of judgment. The overpayments were found at first instance to have been the result of the defendant’s negligence and breach of contract, a finding which was not challenged on appeal. The High Court, affirming the decisions of the courts below, held the plaintiffs to be entitled to recover that compound interest. It was accepted that the plaintiff’s need to borrow money to replace that which had been paid away to the revenue authorities was not too remote a consequence of the defendants’ wrong. As a consequence, and in accordance with general principles as to remoteness of damage, the interest paid on such borrowing was a recoverable part of the plaintiffs’ loss. Subsequent decisions demonstrate that the principle stated in Hungerfords v Walker is applicable to any action in tort. To that extent, the London, Chatham [page 787] & Dover Ry case has been rendered obsolete, and the statutory provisions for the award of pre-judgment interest have been limited in their operation.

Although the High Court of Australia was concerned with a claim for liquidated damages (in relation to which the loss of the use of that money is readily foreseeable), the reasoning employed in that decision has been applied to an unliquidated claim for loss of earning capacity in a personal injury action,128 and damages for negligent misrepresentation,129 in the period up to the trial as well as a claim for liquidated damages.130 Nevertheless, the statutory provisions discussed hereunder continue to be relevant. In order to recover compound interest at common law, the plaintiff must prove both the fact, and the extent, of the loss that has been suffered as a result of the defendant’s tardiness in paying compensation.131 The plaintiff needs, in other words, to lead evidence as to borrowings made, or investments foregone, by reason of being kept out of the damages awarded. Unless the plaintiff carries on a business of some sort, such evidence is not likely to be available.

27.28 Legislative developments The general limitation on the ability to claim interest as damages, assumed to be derived from the London, Chatham and Dover Ry case, has also been well-nigh abrogated by legislation in each of the states and territories of Australia (other than Tasmania) and in New Zealand. The courts in the respective jurisdictions are granted the power by statute to award interest on the amount for which judgment is given for a period prior to the date thereof.132 Although the provisions are not uniform, the pattern to which they generally adhere133 is that, subject to some statutory exceptions relating to specific heads of damage, the court is given a four-fold discretion: whether or not to award interest; at what rate the interest is to be allowed; what part or parts of the award are to bear interest; and the length of time (within the period between accrual of the cause of action and the date of judgment) during which interest is to run. However, these discretions are by no means unfettered; either development of judicial guidelines or (in some cases) the terms of the legislation itself enable the application of these discretions to be stated with relative certainty.

27.29 The first discretionary element — whether or not to award interest — is limited by the legislation in South Australia and Victoria, as the respective courts are required to make such an award unless good cause is shown to the contrary.134 But in other jurisdictions much the same approach has been

adopted by the courts, [page 788] in that it is only in exceptional circumstances that a plaintiff will be denied a claim for interest.135

27.30 The rate at which interest is to be awarded is limited by statute in Victoria and New Zealand.136 In other jurisdictions, the rate at which interest is awarded depends upon the type of loss which is being compensated. If the case is one in which the whole of the plaintiff’s loss was suffered at the time of the commission of the wrong (as, for instance, in a case of deceit), and the compensation is assessed in money values current at that date, the judicial practice has been to award interest at rates approximating those available on the open market.137 If, however, the plaintiff has suffered a loss continuously over the period from the commission of the wrong to the date of judgment, but that loss is measured in money values current throughout the time that it is suffered — as happens, for instance, in the assessment of damages for lost earning capacity or an amount representing the value of gratuitous services138 — the fact of the continuing nature of the loss is taken into account by halving the applicable rate of interest,139 when such interest is payable.140 But where the loss has been suffered continuously since the date of the wrong, and it is assessed in money values current at the date of judgment — such as damages for defamation — the rate of interest is approximately two per cent.141 In such a case, the plaintiff does not need to be compensated, by way of an interest award, for the fall in the value of money, and hence an award at commercial rates would be inappropriate. Although the same principles apply to damages for pain, suffering and loss of amenity,142 the Australian Capital Territory is the only jurisdiction which still permits interest on such awards.143

27.31 The third discretionary element in the legislation relates to the part or parts of the award that are to bear interest. With respect thereto, the legislation in Victoria144 and the Australian Capital Territory145 makes explicit a rule of practice

[page 789] accepted in the other jurisdictions,146 that interest is not to be awarded on any part of the damages which represents loss suffered after the date of the judgment. Where a plaintiff who has suffered personal injury receives benefits under the workers’ compensation legislation relating to a loss of amenity, the amount of those benefits is to be taken into account in assessing the sum on which interest may be claimed.147 Similarly, if it is shown that the owner of a chattel, which has been destroyed by the defendant’s negligence, has neither paid for the chattel nor come under an obligation to pay interest on the purchase price, there is no justification for awarding interest on the damages award.148

27.32

The fourth aspect of the discretion generally granted by the legislation concerns the period for which interest is to run. Although the provisions in Victoria permit interest to be awarded only for the period from commencement of the action,149 the legislation in the other jurisdictions is not so limited. The practice generally adopted is to award interest from the accrual of the cause of action until the date of judgment.150 The two limitations on the award of interest under the statutory regime, relevant to an action in tort, are (i) that the respective courts are not to award ‘interest upon interest’ that is, that the sum is to be calculated as simple and not compound interest;151 and (ii) that interest is available only on compensatory damages, and not exemplary or punitive damages.152

Plaintiff with different causes of action 27.33 The same act or omission on the part of the defendant may provide the plaintiff with different causes of action — either both in tort, in tort and contract or in tort and restitution. The rights of the plaintiff in such a case, and the advantages of pursuing one cause of action rather than another, are discussed in this section.

Rights of action both in tort 27.34 The defendant may, by one and the same tortious act, cause differing

injuries to the plaintiff. The former might, for example, so carelessly control a motor car that he or she collides with the plaintiff’s house, causing personal injury to the [page 790] plaintiff (resulting both in a diminution of the plaintiff’s earning capacity and pain and suffering), damage to the plaintiff’s chattels and to his or her land (or the buildings thereon). Whether the plaintiff is entitled to bring separate actions for these varying injuries depends upon whether they are classified as heads of damage within the same cause of action, or different causes of action. The rule that has been established is that a plaintiff is not entitled to sue separately for different heads of damage flowing from the same cause of action, but that it is permitted (though not required) for the plaintiff to commence separate proceedings for each cause of action which he or she has against the defendant.

27.35 Different heads of damage If the defendant’s act has done no more than invade one interest of the plaintiff — such as the interest in bodily security — and is not a continuing wrong (see 27.37), the latter must seek compensation for all the loss flowing from the act, whether economic or noneconomic, whether already suffered or to be suffered in the future, in the one proceedings. The plaintiff’s damages, in other words, are to be assessed once and for all at the trial of the action. This rule was established in Fitter v Veal,153 in which the plaintiff, having recovered damages for assault and battery, was prohibited from seeking to recover further damages when his condition later deteriorated; it has been consistently applied ever since that decision.154

27.36

Different causes of action The rule is different when the defendant’s act invades different interests of the plaintiff, giving the latter different causes of action against the defendant. Although the plaintiff may (and often does) bring one action against the defendant, there is no obligation to do so. Thus, if the defendant car driver collides with the plaintiff, who was also driving a car, the latter may sue separately for the damage to the car and to his or her person,155 but there is not a separate cause of action in respect of

each piece of property damaged.156 A plaintiff is also regarded, for these purposes, as having different causes of action if, in the one collision, he or she suffers both physical injury and purely mental harm as the result of seeing a passenger put in peril;157 or if the defendant’s act was both negligence at common law and a breach of statutory duty;158 or the defendant, at the same time, commits a trespass to the plaintiff’s goods and land.159 [page 791]

27.37

The same principle as that just discussed applies when the defendant’s act is a continuing wrong. Such wrongs are normally confined to types of trespass — such as placing and leaving an object on the plaintiff’s land160 — or of nuisance — such as a removal of lateral support of the plaintiff’s land.161 When they are committed, the plaintiff has a fresh cause of action each day until the defendant ceases the trespass or the nuisance.162 However, rather than bring a series of actions, the plaintiff will normally seek an injunction to prohibit the continuance of the wrong: see further 14.51.

Rights of action in tort and contract 27.38 In a number of situations, the plaintiff will be able to frame an action either in tort or for breach of contract. Instances include proceedings by an employee against an employer, or a client against a professional adviser;163 equally, the bailor of goods may have an action against the bailee either for detinue or conversion or for breach of the contract of bailment. While it will often not matter which cause of action is relied on, the choice may be important in the following instances.164

27.39

Contributory negligence The apportionment legislation, which permits a reduction in the plaintiff’s damages on account of contributory negligence,165 does not apply if the defendant’s contractual obligations are strict — in that they may be broken despite having taken all reasonable care — and the plaintiff frames the action in contract alone.166 However, if the defendant owes to the plaintiff concurrent and co-extensive duties, both in tort and contract, to take reasonable care, the legislation in Australia has been

amended in order to abrogate the effect of the decision in Astley v Austrust Ltd,167 and the defendant may plead the legislation, whether the plaintiff has framed the action in contract or in tort.168

27.40 Contribution In all jurisdictions other than Victoria,169 a defendant who is sued in contract, even for the negligent breach of a strict contractual obligation, will be unable to claim contribution from others who may have been jointly or severally liable for the plaintiff’s loss. If, however, the obligations owed by the defendant to the plaintiff are concurrent and coextensive in tort and contract, it appears that the [page 792] defendant may seek contribution from others who were also liable to the plaintiff in tort, whatever the basis for the plaintiff’s claim.170

27.41 Assignability It has been said that a right to sue in tort is not assignable if the transfer of the right would savour of maintenance or champerty,171 but it is pointed out in 25.33 that a litigation funding agreement, even if it involves maintenance or champerty, does not thereby offend against public policy.172 On the other hand, a cause of action in contract may be assigned if it is for a liquidated sum173 or if the assignee has a genuine and substantial interest in the success of the action,174 and a tort action may also be assigned, so long as the assignee similarly has a genuine and substantial interest in the outcome of the proceedings.175 Furthermore, it is suggested that, in view of the judicial and legislative approach in relation to the availability of the apportionment legislation and rights of contribution, a cause of action which is concurrently and co-extensively available in both tort and contract would, if necessary, be treated as lying solely in contract for the purpose of determining its assignability.176

27.42 Bankruptcy In Australia, claims may be made in bankruptcy for unliquidated damages for breach of contract, but not for unliquidated damages arising from tort;177 the contractual but not the tortious liability will be terminated by the discharge of the bankrupt.178 In New Zealand, the Insolvency Act 2006 s 232 draws no distinction between claims in contract or tort.

27.43 Minors Although some contractual obligations entered into by a minor are not enforceable against him or her,179 the minor may be liable, in some circumstances, for torts committed in the course of a contractual relationship with the plaintiff: see 29.19.

27.44 Wrong committed in another country If the wrong was committed in another country from that in which the action is commenced, both the ability of the [page 793] court to hear the matter,180 and the law to be applied,181 may vary depending upon the cause of action relied on by the plaintiff.

27.45

Assessment of damages There are certain differences in the assessment of damages. First, the purpose of an award in tort is to put the plaintiff, as nearly as possible, in the position which obtained before the wrong was committed, whereas the purpose of an award for breach of contract is generally to put the plaintiff in the position which would have been enjoyed had the contract been performed.182 Secondly, some types of damages are recoverable in one cause of action but not the other. For example, exemplary damages are available in some tort actions,183 but not for breach of contract;184 and damages for emotional distress, while recoverable for at least some torts,185 may be recovered in contract only if the defendant expressly or impliedly promised to provide enjoyment or prevent vexation;186 but damages for loss of reputation, when sued for in tort, are available only in defamation and injurious falsehood,187 although they may be recovered in any action for breach of contract.188 Thirdly, the test of remoteness in tort, as has been observed in 27.15, depends upon either the reasonable foreseeability of the type of damage at the time of commission of the wrong or a determination of the natural and probable consequences of the wrong, whereas in contract the limit of remoteness is set at that which was in the reasonable contemplation of the parties at the time of entering into the contract.189 However, if the plaintiff might found the action either in contract or in tort, then in the absence of any countervailing provision in the contract, the remoteness test in tort is applied, whatever cause of action was relied on

by the plaintiff.190

27.46 Limitation period The limitation period, in an action for breach of contract, runs from the time of the breach, while in torts derived from case (in which damage is the gist of the action) it runs from the suffering of the harm: see further 28.10. But if the defendant’s duty to the plaintiff is owed concurrently in [page 794] tort and contract, the plaintiff is generally permitted to choose that cause of action which is most favourable to him or her.191

Rights of action in tort and restitution192 27.47 It sometimes happens that a plaintiff has the choice of suing either in tort or in restitution for a wrong. For example, if the defendant wrongfully takes the plaintiff’s goods and sells them, the plaintiff has the choice of suing in conversion or bringing an action in restitution for the price received by the defendant. The torts which will most commonly be an alternative to an action in restitution are conversion,193 trespass to goods,194 trespass to land by removing minerals,195 and deceit.196 In principle, the rule is capable of applying to any tort, but of course where the defendant has merely damaged the plaintiff without benefiting himself or herself, restitution will not be an alternative remedy. The election by the plaintiff to sue in restitution has sometimes been erroneously described as a ‘waiver’ of the tort. The plaintiff does not ‘waive’ the tort by electing to sue in restitution. He or she is free at any time before signing judgment to abandon the suit in restitution and pursue the alternative remedy in tort instead. And the suit in restitution will not bar proceedings in tort on the same facts against another wrongdoer unless the plaintiff has not merely obtained judgment but has also had satisfaction of it. It is true that if the plaintiff signs judgment in restitution, the claim in tort against that defendant is barred, but that is merely an illustration of the rule that where the plaintiff has succeeded in one cause of action there is no further cause of action in respect of that very violation of a particular interest for which the first cause of action lay.197

27.48 The principal advantage of suing in restitution rather than tort is the measure of damages available. If A converts B’s chattel valued at $100, then in a suit in conversion B will recover $100. But if A sells the chattel to C for $150, B can recover $150 in restitution as money had and received by A. Further advantages may be found in relation to the applicable limitation period,198 the effect of bankruptcy (at least in Australia though not in New Zealand199) and the assignability of the claim.200 On the other hand, exemplary damages may be awarded for those torts [page 795] which, it has been held, may be waived (see 27.11), but such a head of recovery is not available if the action is brought in restitution.201

Injunction 27.49

There are two kinds of injunctions, namely, prohibitory and mandatory. A prohibitory injunction may, for example, be issued against someone who has committed a trespass or nuisance; that is, he or she will be restrained from committing or repeating the act. A mandatory injunction requires the defendant to do a positive act in order to end a state of affairs which amounts to a tort — for example, a mandatory injunction may require the construction of a retaining wall if the defendant has removed the lateral support from neighbouring land.

27.50 Where an injunction is granted before the trial of an action in order to prevent, pending that fuller investigation into the case which will take place at the trial, the commission or continuance of an act alleged to be tortious, it is called an interlocutory injunction. Such an injunction is commonly applied for in respect of alleged economic torts such as inducing breach of contract, where the plaintiff contends that the state of affairs resulting from the defendant’s act is so serious that the defendant ought not to be allowed to continue to create that state of affairs pending the hearing. A perpetual injunction is a final one, issued after the hearing of the action. A quia timet injunction may be issued to restrain a tort which has not yet been committed, but commission of which is threatened.

27.51

The jurisdiction to grant injunctions is discretionary. An interlocutory injunction may be granted if the plaintiff shows that there is sufficient likelihood of success, if the case were to go to trial, to justify the preservation of the status quo in the meantime.202 As the High Court observed, in Australian Broadcasting Corp v O’Neill,203 the governing consideration is that the strength of the probability of ultimate success by the plaintiff depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order. The courts exercise sparingly their discretion to grant mandatory injunctions, and will refuse to do so unless very serious damage would otherwise occur.204 A prohibitory injunction will be granted to a plaintiff on proof that the wrongful act is continuing, unless [page 796] special circumstances exist, proof of which lies on the defendant.205 An injunction will not be refused because it is against the public interest to restrain the activity; the courts are reluctant to leave the victim of a serious interference with merely a remedy in damages.206 The most that the courts are willing to do to mitigate the consequences of their granting an injunction is occasionally to suspend its operation for a short period,207 or to impose time restrictions on the injunction.208 _______________ 1.

The application of these concepts to the tort of negligence is discussed in Chapter 9.

2.

For a recent discussion of this head of damages, see New South Wales v Stevens [2012] NSWCA 415. An award of such damages does not come within the terms of the Civil Liability Act 2002 (NSW) and hence is not subject to the limits imposed by that Act. The court regarded $100 as an appropriate amount for such an award: see at [37] per McColl JA.

3.

The Mediana [1900] AC 113 at 116 per Lord Halsbury LC; Baume v Commonwealth (1906) 4 CLR 97 at 116 per Griffith CJ.

4.

Law v Wright [1935] SASR 20 at 25 per Piper J.

5.

See, eg, Dumont v Miller (1873) 4 AJR 152 (Vic FC); Dehn v Attorney-General [1988] 2 NZLR 564 at 582–3 per Tipping J.

6.

Marzetti v Williams (1830) 1 B & Ad 415 at 425; 109 ER 842 at 846 per Parke J; Bowen v Blair [1933] VLR 398 at 402 (FC); Official Receiver v Feldman (1972) 4 SASR 246 at 274–5 per Bray CJ (FC).

7.

Apart from this, nominal damages are not available for an action derived from case: Petersville Sleigh Ltd v Sugarman [1988] VR 426 (FC).

8.

See 11.30; see also Ashby v White (1703) 2 Ld Raym 938; 92 ER 126 (prevention of the exercise of the plaintiff’s right to vote); Waters v Maynard (1924) 24 SR (NSW) 618 (FC) (prevention of access to property); Nicholls v Ely Beet Sugar Factory Ltd [1936] Ch 343 (interference with fishery); Young v Wheeler (1987) Aust Torts Reports 80-126 at 68,971–2 per Wood J (nuisance caused by encroaching branches and roots of trees).

9.

For examples of such awards, see, eg, Connolly v ‘Sunday Times’ Publishing Co Ltd (1908) 7 CLR 263; Galsworthy v Reid (1911) 17 Arg LR 144; Earnshaw v Loy (No 2) [1959] VR 252.

10.

See, eg, Iveson v Moore (1699) 1 Ld Raym 486 at 488–9; 91 ER 1224 at 1226 per Gould J; Ratcliffe v Evans [1892] 2 QB 524 at 527 per Bowen LJ (CA); Lachoume v Broughton (1903) 3 SR (NSW) 475 (FC).

11.

See, eg, Ashby v White (1703) 2 Ld Raym 938 at 955; 92 ER 126 at 136; Ratcliffe v Evans [1892] 2 QB 524 at 529 per Bowen LJ (CA).

12.

Stroms Bruks AB v Hutchison [1905] AC 515 at 525–6 per Lord Macnaghten (HL).

13.

Paff v Speed (1961) 105 CLR 549 at 558–9 per Fullagar J.

14.

Sometimes referred to as ‘parasitic’ damages, a terminology criticised in Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 at 35; [1972] 3 All ER 557 at 561 per Lord Denning MR (CA) and in Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 598; 11 ALR 227 at 279 per Jacobs J.

15.

On the necessity for the loss to be a direct, rather than an indirect, consequence of the defendant’s act, see Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; [1972] 3 All ER 557 (CA); French Knit Sales Pty Ltd v N Gold & Sons Pty Ltd [1972] 2 NSWLR 132 (CA); Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 553; 11 ALR 227 at 243 per Gibbs J.

16.

Campbell v Paddington Corporation [1911] 1 KB 869; Owen v O’Connor [1963] SR (NSW) 1051.

17.

Davies v Solomon (1871) LR 7 QB 112; Albrecht v Patterson (1886) 12 VLR 597 (FC).

18.

Lampert v Eastern National Omnibus Co Ltd [1954] 2 All ER 719 (in all jurisdictions other than Queensland and South Australia, a wife is unable to recover damages for loss of consortium if it is her husband who is physically injured): see 24.3.

19.

Street, Foundations of Legal Liability, 1906, Vol 1, pp 461–2.

20.

Tilbury, ‘Factors Inflating Damages Awards’ in Finn (ed), Essays on Damages, 1992, pp 89–96; Murphy, ‘The Nature and Domain of Aggravated Damages’ [2010] Camb LJ 353.

21.

Lamb v Cotogno (1987) 164 CLR 1 at 8; 74 ALR 188 at 191; see also Gray v Motor Accident Commn (1998) 196 CLR 1; 158 ALR 485 at [100], [101] per Kirby J; New South Wales v Quirk [2012] NSWCA 216 at [153]–[158] per Tobias AJA, with the concurrence of Beazley and Hoeben JJA; Taylor v Beere [1982] 1 NZLR 81 at 93 per Somers J (CA).

22.

Civil Law (Wrongs) Act 2002 (ACT) s 139F(2); Defamation Act 2005 (NSW) s 35(2); Defamation Act 2006 (NT) s 32(2); Defamation Act 2005 (Qld) s 35(2); Defamation Act 2005 (SA) s 33(2); Defamation Act 2005 (Tas) s 35(2); Defamation Act 2005 (Vic) s 35(2); Defamation Act 2005 (WA) s 35(2).

23.

Rookes v Barnard [1964] AC 1129; 1 All ER 367 (HL).

24.

Williams v Hursey (1959) 103 CLR 30.

25.

New South Wales v Landini [2010] NSWCA 157; New South Wales v Zreika [2012] NSWCA 37.

26.

De Reus v Gray (2003) 9 VR 432 (CA).

27.

Fogg v McKnight [1968] NZLR 330; Carrington v A-G [1972] NZLR 1106; Henry v Thompson [1989] 2 Qd R 412 (FC); McKean v Page (1999) 25 Fam LR 15 (CA) (battery); McIntosh v Webster (1980) 30 ACTR 19; Myer Stores Ltd v Soo [1991] 2 VR 597 (App Div); A-G (NZ) v Niania [1994] 3 NZLR 106; Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports 81-541 at [124]–[140] per Bergin J (NSWSC) (false imprisonment); White v South Australia (2010) 106 SASR 521 at [430]–[439] per Anderson J (assault and false imprisonment).

28.

Coles-Smith v Smith [1965] Qd R 494 (FC); Greig v Greig [1966] VR 376; Johnstone v Stewart [1968] SASR 142; Pollack v Volpato [1973] 1 NSWLR 653 (CA); Shattock v Devlin [1990] 2 NZLR 88.

29.

Owen & Smith v Reo Motors (Britain) Ltd (1934) 151 LT 274 (CA); cf Huljich v Hall [1973] 2 NZLR 279 (CA).

30.

Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [110] per Mason P (CA).

31.

In Archer v Brown [1985] QB 401 at 424–6; [1984] 2 All ER 267 at 281–3, Peter Pain J used the two terms, together with the phrase ‘damages for injured feelings’, indiscriminately; cf Kralj v McGrath [1986] 1 All ER 54 at 60–2 per Woolf J, in which the plaintiff’s damages were increased because of the stress she had undergone, although ‘aggravated damages’ were regarded as not available.

32.

Archer v Brown [1985] QB 401; [1984] 2 All ER 267.

33.

Carll (RA & T J) Ltd v Berry [1981] 2 NZLR 76 at 89 per Bisson J.

34.

Graham v Voigt (1989) 89 ACTR 11 at 20 per Kelly J (plaintiff prevented from pursuing his hobby because of the conversion).

35.

Yearworth v North Bristol NHS Trust [2010] QB 1; [2009] 2 All ER 986 (loss of or damage to sperm in the hospital’s fertility storage unit).

36.

Mouat v Clark Boyce [1992] 2 NZLR 559 (CA).

37.

Gabolinscy v Hamilton City Corp [1975] 1 NZLR 150 at 163 per Moller J; Young v Tomlinson [1979] 2 NZLR 441 at 461–2 per Quilliam J; Rowlands v Callow [1992] 1 NZLR 178 at 209 per Thomas J; Hamlin v Bruce Stirling Ltd [1993] 1 NZLR 374 at 384 per Williamson J (aff’d sub nom Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA)); Clarke v Gisborne Shire Council [1984] VR 971 at 995–7 per Gobbo J; Brickhill v Cooke [1984] 3 NSWLR 396 at 400 (CA); Campbelltown City Council v Mackay (1989) 15 NSWLR 501 (CA).

38.

Broken Hill City Council v Tiziani (1997) 93 LGERA 113 (NSWCA).

39.

Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 44 per Sheller JA (CA); and see Ichard v Frangoulis [1977] 2 All ER 461 (loss of enjoyment of holiday); Kralj v McGrath [1986] 1 All ER 54 at 60–2 per Woolf J.

40.

Public Trustee v Zoanetti (1945) 70 CLR 266 at 276 per Dixon J; Hinz v Berry [1970] 2 QB 40; 1 All ER 1074 (CA); the common law rule has been abrogated by statute in South Australia and the Northern Territory: see 11.42.

41.

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394 per Windeyer J; Jaensch v Coffey (1984) 155 CLR 549 at 587; 54 ALR 417 at 448 per Deane J.

42.

As distinct from damage to a chattel: see Anderson v Smith (1990) 101 FLR 34 at 50–1 per Nader J (NTSC).

43.

Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 27–8; 1 All ER 583 at 596 per Devlin J; Tilbury, ‘Factors Inflating Damages Awards’ in Finn (ed), Essays on Damages, 1992, pp 99–106.

44.

Rothwell v Chemical & Insulating Co Ltd, Re Pleural Plaques Litigation [2008] 1 AC 281; [2007] 4 All ER 1047 (HL).

45.

Civil Liability Act 2002 (NSW) s 21; Civil Liability Act 2003 (Qld) s 52; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19.

46.

Hammond, ‘Exemplary Damages’, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, 2011, ch 18.

47.

See, eg, the comments of Bray CJ in Johnstone v Stewart [1968] SASR 142 at 144.

48.

But see New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [35], in which the High Court accepted that in some circumstances a court may wish to award one sum which represents both heads of damages.

49.

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; 57 ALR 639 at 655 per Brennan J; Lackersteen v Jones (1988) 92 FLR 6 at 40–1 per Asche CJ (NTSC); Henry v Thompson [1989] 2 Qd R 412 at 417 per Williams J (FC).

50.

See, eg, XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; 57 ALR 639 at 655 per Brennan J; Lamb v Cotogno (1987) 164 CLR 1 at 8–9; 74 ALR 188 at 192–3; Taylor v Beere [1982] 1 NZLR 81 at 89 per Richardson J (CA).

51.

Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188; Gray v Motor Accident Commn (1998) 196 CLR 1; 158 ALR 485; and see Lancashire County Council v Municipal Mutual Insurance Ltd [1997] QB 897; [1996] 3 All ER 545 (CA) (voluntary insurance against such liability not contrary to public policy).

52.

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639; Henry v TVW Enterprises Ltd (1990) 3 WAR 474.

53.

De Reus v Gray (2003) 9 VR 432 at [39] (CA).

54.

Couch v Attorney-General (No 2) [2010] 3 NZLR 149 (SC NZ).

55.

Accident Compensation Act 2001 (NZ) s 319.

56.

Rookes v Barnard [1964] AC 1129; All ER 367; Broome v Cassell & Co Ltd [1972] AC 1027; 1 All ER 801.

57.

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185, aff’d [1969] 1 AC 590; [1967] 3 All ER 523 (PC).

58.

Taylor v Beere [1982] 1 NZLR 81 (CA).

59.

Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 per Knox CJ, and see Taylor v Beere [1982] 1 NZLR 81 at 96 per Somers J (CA).

60.

Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 212 per Windeyer J.

61.

Lamb v Cotogno (1987) 164 CLR 1 at 12–13; 74 ALR 188 at 195; and see Commonwealth v Murray (1988) Aust Torts Reports 80-207 at 68,050–1 (NSWCA).

62.

Johnstone v Stewart [1968] SASR 142 at 145 per Bray CJ; Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188.

63.

Pearce v Hallett [1969] SASR 423; Donselaar v Donselaar [1982] 1 NZLR 97 (CA); Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188; A v M [1991] 3 NZLR 228; Dean v Phung [2012] NSWCA 223 at [77]–[82] per Basten JA, with the concurrence of Beazley and Macfarlan JJA.

64.

Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584; Egan v State Transport Authority (1982) 31 SASR 481 at 531–2; Jamieson’s Tow & Salvage Ltd v Murray [1984] 2 NZLR 144.

65.

How v Mansfield [1925] NZLR 91; Johnstone v Stewart [1968] SASR 142; Pollack v Volpato [1973] 1 NSWLR 653 (CA); XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639; New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 (CA).

66.

Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71; Williams v Hursey (1959) 103 CLR 30.

67.

Zhu v Treasurer of New South Wales (2004) 218 CLR 530; 211 ALR 159; Multinail (Australia) Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105.

68.

Landini v New South Wales [2010] NSWCA 157; New South Wales v Zreika [2012] NSWCA 37.

69.

Musca v Astle Corp Pty Ltd (1988) 80 ALR 251 (Fed Ct); and see Archer v Brown [1985] QB 401 at 423; [1984] 2 All ER 267 at 281 per Peter Pain J.

70.

Commonwealth v Murray (1988) Aust Torts Reports 80-207 (NSWCA).

71.

MacDonald v Public Trustee [2010] NSWSC 684.

72.

Midalco Pty Ltd v Rabenalt [1989] VR 461 (FC); Coloca v BP Australia Ltd [1992] 2 VR 429; Trend Management Ltd v Borg (1996) 40 NSWLR 500 (CA) (all cases of employment); Backwell v AAA [1997] 1 VR 182 (CA) (medical negligence).

73.

Couch v Attorney-General (No 2) [2010] 3 NZLR 149 (SCNZ), departing from the earlier decision of the Privy Council in A v Bottrill [2003] 1 AC 449; 2 NZLR 721 (PC). For a critical comment on the Couch case, see Beever, ‘The Future of Exemplary Damages in New Zealand’ (2010) 24 NZULR 197.

74.

Motor Accidents Compensation Act 1999 (NSW) s 144; Workers Compensation Act 1987 (NSW) s 151R; Civil Liability Act 2002 (NSW) s 21; Civil Liability Act 2003 (Qld) s 52; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19. This limitation does not apply to an action based solely on intentional conduct constituting trespass to the person: New South Wales v Ibbett (2005) 65 NSWLR 168 (CA) (the issue was not pursued on further appeal to the High Court: New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485).

75.

Civil Law (Wrongs) Act 2002 (ACT) s 139H; Defamation Act 2005 (NSW) s 37; Defamation Act 2006 (NT) s 34; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37.

76.

Fontin v Katapodis (1962) 108 CLR 177; Hoebergen v Koppens [1974] 2 NZLR 597; Andary v Burford (1994) Aust Torts Reports 81-246 (SASC); cf Marriage of Marsh (1993) 17 Fam LR 289 (plaintiff’s conduct found not to have been provocative).

77.

Reindel v James Hardie & Co Pty Ltd [1994] 1 VR 619.

78.

Civil Law (Wrongs) Act 2002 (ACT) s 16(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(a)(i); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(a); Succession Act 1981 (Qld) s 66(2)(b); Survival of Causes of Action Act 1940 (SA) s 3(1)(b); Administration and Probate Act 1935 (Tas) s 27(3)(a); Administration and Probate Act 1958 (Vic) s 29(2)(a); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2)(a); Law Reform Act 1936 (NZ) s

3(2)(a): and see Re Chase [1989] 1 NZLR 325 at 330–1 per Cooke P (CA). 79.

See, eg, Vesey v Public Trustee [1960] SASR 71.

80.

(1998) 196 CLR 1; 158 ALR 485; see also Giller v Procopets (2008) 24 VR 1 (CA).

81.

The [English] Law Commission, in its Report on Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 1997) recommended to a similar effect: 6.3 (21).

82.

[1998] 3 NZLR 22.

83.

W v W [1999] 2 NZLR 1.

84.

For an example of the application of this section, see McDermott v Wallace [2005] 3 NZLR 661 (CA).

85.

[1961] AC 388; 1 All ER 404.

86.

[1967] 1 AC 617; [1966] 2 All ER 709.

87.

But cf the discussion by Batt JA in National Australia Bank Ltd v Nemur Varity Pty Ltd (2002) 4 VR 252 at [62]–[63], who suggests that at least in some instances of conversion the damages should be limited to those which the defendant might reasonably have contemplated.

88.

Pelmothe v Phillips (1899) 20 LR (NSW) L 58 (FC); Kraemers v A-G (Tas) [1966] Tas SR 113 at 156 (FC); Howard Electric Ltd v AJ Mooney Ltd [1974] 2 NZLR 762; Hamilton v Papakura District Council [2000] 1 NZLR 265 (CA).

89.

Wormald v Cole [1954] 1 QB 614; 1 All ER 683 (CA); cf Mark v Barkla [1935] NZLR 347, in which the injury was held to be too remote.

90.

Cook v Fanning (1976) 10 Nfld & PEIR 212.

91.

Hogan v AG Wright Pty Ltd [1963] Tas SR 44; Svingos v Deacon Avenue Cartage & Storage Pty Ltd (1971) 2 SASR 126 (FC); TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 (CA); see further 5.16.

92.

O’Connor v Bank of New South Wales (1887) 13 VLR 820 (FC) (rev’d on other grounds (1889) 14 App Cas 273 (PC)); Mrs Eaton’s Car Sales Ltd v Thomasen [1973] 2 NZLR 686 at 692–3; Harrisons Group Holdings Ltd v Westpac Banking Corp (1989) 51 SASR 36 at 40–1 per King CJ.

93.

(2001) 208 CLR 388; 185 ALR 280.

94.

Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254; [1996] 4 All ER 769.

95.

Palmer, Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [64], [65] per Gummow J; see further 23.28.

96.

Williams v Davidson (1923) 23 SR (NSW) 187 (FC).

97.

Harnett v Bond [1925] AC 669 (HL).

98.

Challoner v McPhail (1877) Knox 157 (NSWFC).

99.

For the exposition of this principle in an action in negligence, see McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC (HL) 20 at 25 per Lord Reid, referred to with approval in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 528; 59 ALR 722 at 725.

100. Burrows, Remedies for Torts and Breach of Contract, 3rd ed, 2004, p 75. 101. Harvey v Shire of St Arnaud (1879) 5 VLR (L) 312 (FC); see also McCarroll v McCulloch

(1870) 9 SCR (NSW) 333 (FC) (trespass to land). 102. Peruvian Guano Co Ltd v Dreyfus Bros & Co Ltd [1892] AC 166 at 174 per Lord Macnaghten (HL). 103. Henley v Eyles (1908) 8 SR (NSW) 23 (FC); see further 19.77. 104. Fontin v Katapodis (1962) 108 CLR 177 (‘mitigation’ of damages, other than those of a compensatory nature, for assault and battery on the ground of the plaintiff’s provocation). 105. This issue is discussed in 9.15. 106. Thynne v Petrie [1975] Qd R 260; cf Clearlite Holdings Ltd v Auckland City Corp [1976] 2 NZLR 729, in which the plaintiff’s inaction was held to be reasonable. 107. Roshik v Pachkowsky (1980) 4 Man R (2d) 181. 108. Egan v State Transport Authority (1982) 31 SASR 481 at 528 per White J, following Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 All ER 928 (CA) and distinguishing Leisbosch, Dredger v SS Edison [1933] AC 449. 109. Jones v Fabbi (No 2) (1974) 49 DLR (3d) 316 (BC SC) (action for inducing breach of contract); cf Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (1991) 33 FCR 1; 104 ALR 397 (FC), in which money received by the plaintiff was causally unrelated to the defendant’s fraud, and hence did not go in reduction of damages. 110. See Lagden v O’Connor [2004] 1 AC 1067; 1 All ER 277 (a negligence case, concerned with property damage only). 111. See, eg, the negligence case of Richardson v Schultz (1980) 25 SASR 1. 112. See, eg, Marinko v Masri (2000) Aust Torts Reports 81-581 (NSWCA); Geest plc v Lansiquot [2003] 1 All ER 383 (PC). 113. Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 35 per Lord Hatherley. 114. The Civil Proceedings Act 2011 (Qld) s 60, provides that damages for loss of earning capacity ‘must be reduced by the amount that the court considers would have been paid on the relevant earnings as income tax had they been received’. 115. In Australia, under the Income Tax Assessment Act 1997 (Cth) s 15-30; in New Zealand, see Omihi Lime Co Ltd v Commr of Inland Revenue [1964] NZLR 731; MacLean v Commr of Inland Revenue (1985) 8 TRNZ 391 (HC); Income Tax Act 2007 (NZ) s CG6. 116. Williamson v Commr for Railways [1960] SR (NSW) 252 (FC); Lonie v Perugini (1977) 7 ATR 674 (SAFC); Nielsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302 at 315 per Pincus J (Fed Ct); Bevan Investments Ltd v Blackhall & Struthers (No 2) [1973] 2 NZLR 45 at 76–8 per Beattie J (aff’d [1978] 2 NZLR 97 (CA)); and see Mademoiselle Ltd v Oliver Enterprises Ltd [1974] 2 NZLR 532; North Island Wholesale Groceries Ltd v Hewin [1982] 2 NZLR 176 (CA). 117. Hall & Co Ltd v Pearlberg [1956] 1 All ER 297. On the effect of tax on the assessment of damages for personal injuries or death, see 11.8. 118. See, eg, Posner, Economic Analysis of Law, 8th ed, 2011, p 247; Wright v British Railways Board [1983] 2 AC 773 at 781–2; 2 All ER 698 at 703 per Lord Diplock (HL). 119. The cases in which a primary loss is calculated in terms of money values current at the time of judgment are considered in 27.30. 120. [1893] AC 429. 121. Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 at 363–7 per Samuels JA

(CA). 122. Union Bank of Australia v Waterston (1894) 12 NZLR 672. 123. (1945) 70 CLR 518 at 525. 124. (1829) 9 B & C 378; 109 ER 140. 125. Wadsworth v Lydall [1981] 2 All ER 401 (CA). 126. [2008] 1 AC 561; [2007] 4 All ER 657. 127. (1989) 171 CLR 125; 84 ALR 119. 128. Commonwealth v Chessell (1991) 30 FCR 154; 101 ALR 182 (FC). 129. Tasmania v Shaw (No 2) (2002) 12 Tas R 1 (FC). 130. Lowdon v Lewis [1989] Tas R 254 at 268 per Neasy J; Fletcher v National Mutual Life Nominees Ltd [1990] 3 NZLR 641 at 688–90 per Henry J (rev’d on other grounds [1993] AC 774; 2 All ER 1015 (PC)). 131. Commonwealth v Chessell (1991) 30 FCR 154; 101 ALR 182 (FC); State Bank of NSW v Yee (1994) 33 NSWLR 618 at 636–7 per Giles J; Doolan v Renkon Pty Ltd [2011] TASFC 4 at [78]– [109]. 132. Court Procedures Rules 2006 (ACT) r 1616; Civil Procedure Act 2005 (NSW) s 100; Supreme Court Act 1979 (NT) s 84; Civil Proceedings Act 2011 (Qld) s 58; Supreme Court Act 1935 (SA) s 30C; Supreme Court Act 1986 (Vic) s 60; Supreme Court Act 1935 (WA) s 32; Judicature Act 1908 (NZ) s 87. In Tasmania, the Supreme Court Civil Procedure Act 1932 s 35 permits an award of pre-judgment interest only in an action in conversion or trespass to goods. 133. Modelled on legislation first enacted in England in 1934 and now contained in the Senior Courts Act 1981 (Eng) s 35A. 134. On the meaning of ‘good cause’ in this context, see Williams v Volta [1982] VR 739. 135. See, eg, Homeowners Insurance Pty Ltd v Job (1983) 2 ANZ Insurance Cases 60–535 at 78,106 per Glass JA, 78,115 per Priestley JA (NSWCA); Serisier Investments Pty Ltd v English [1989] 1 Qd R 678 (FC), and generally on the similarity in effect, despite differences in wording between state provisions, Cullen v Trappell (1980) 146 CLR 1 at 17–18; 29 ALR 1 at 12 per Gibbs J. 136. In Victoria, the rate is that fixed by the Attorney-General under the Penalty Interest Rates Act 1983 (Vic), while in New Zealand the maximum allowable rate is set by the Judicature (Prescribed Rate of Interest) Order 2011 (SR 2011/177). 137. See, eg, Clybucca Holdings Pty Ltd v Hill [1984] WAR 44. 138. For the circumstances in which such damages may be awarded, see 11.8 and 11.15. 139. Bennett v Jones [1977] 2 NSWLR 355 at 372 per Moffatt P (CA) (lost earning capacity); Grincelis v House (2000) 201 CLR 321; 173 ALR 564 (gratuitous nursing services). 140. In NSW, NT and Qld, no interest is payable on damages for gratuitous attendant care services: Motor Accidents Compensation Act 1999 (NSW) s 137(2); Civil Liability Act 2002 (NSW) s 18(1); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 29(b); Civil Liability Act 2003 (Qld) s 60(1)(b). 141. See David Syme & Co Ltd v Mather [1977] VR 516 (FC); Fairfax (John) & Sons Ltd v Kelly (1987) 8 NSWLR 131 (CA); Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21 at 55–6 per Higgins J (ACTSC); Thompson v Australian Capital Television Pty Ltd (1998) 133 ACTR 1.

142. See MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; 98 ALR 193. 143. See Motor Accidents Compensation Act 1999 (NSW) s 137(3); Civil Liability Act 2002 (NSW) s 18(1); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 29(a); Civil Liability Act 2003 (Qld) s 60(1)(a); Civil Liability Act 1936 (SA) s 56; Accident Compensation Act 1985 (Vic) s 134AB(34); Transport Accident Act 1986 (Vic) s 93(15); Supreme Court Act 1935 (WA) s 32(2)(aa). 144. Supreme Court Act 1986 (Vic) s 60(3)(b). 145. Court Procedures Rules 2006 (ACT) r 1616(2)(b). 146. Fire & All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427 at 432; 21 ALR 375 at 377; Thompson v Faraonio (1979) 24 ALR 1 at 7 (PC); John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142–3 per McHugh JA (CA). 147. Haines v Bendall (1991) 172 CLR 60; 99 ALR 385; Mahoney v GEC Australia Ltd [1994] 1 Qd R 397. 148. Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720 (CA). 149. Supreme Court Act 1986 (Vic) s 60(1). 150. With regard to the Australian jurisdictions, see, eg, Parker v Guardian Fire Sprinkler Co (Qld) Pty Ltd [1982] Qd R 709; Wheeler v Page (1982) 31 SASR 1 at 5 (FC); for the position in New Zealand, see, eg, Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 at 67 (CA) (rev’d on other grounds [1988] AC 473; 1 All ER 163 (PC)) and cf McAlpines Saw Milling Ltd v Airwork Engineering Ltd [1976] 2 NZLR 131 at 133 per Roper J. 151. Court Procedures Rules 2006 (ACT) r 1616(6)(a); Civil Procedure Act 2005 (NSW) s 100(3)(a); Supreme Court Act 1979 (NT) s 84(2)(a); Civil Proceedings Act 2011 (Qld) s 58(4)(a); Supreme Court Act 1935 (SA) s 30C(4)(a); Supreme Court Act 1986 (Vic) s 60(2)(a); Supreme Court Act 1935 (WA) s 32(2)(a); Judicature Act 1908 (NZ) s 87(1)(a); cf Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119 (see 27.27), in which interest at common law was compounded; see also Mann, ‘On Interest, Compound Interest and Damages’ (1985) 101 LQR 30 at 42–6. 152. Court Procedures Rules 2006 (ACT) r 1616(2)(c); Supreme Court Act 1935 (SA) s 30C(4)(ab); Supreme Court Act 1986 (Vic) s 60(3)(c); in relation to the other jurisdictions, see Murray v Commonwealth (1986) 5 NSWLR 83 (aff’d, sub nom Commonwealth v Murray (1988) Aust Torts Reports 80-207 at 68,053 (NSWCA). 153. (1701) 12 Mod Rep 542; 88 ER 1506. 154. See, eg, Pamment v Pawelski (1949) 79 CLR 406; Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481. 155. Brunsden v Humphrey (1884) 14 QBD 141 (CA); The Oropesa [1943] P 32; 1 All ER 211 (CA); accepted as correct in Armytage v Commr for Government Transport [1972] 1 NSWLR 331 at 338 per Brereton J; followed in National Insurance Co of NZ Ltd v Geddes [1936] NZLR 1004 and Priest v Mowat (No 2) [1937] NZLR 789 but doubted in Baltic Shipping Co v Merchant ‘Mikhail Lermontov’ (1994) 36 NSWLR 361 at 370. In the second action, the plaintiff may face difficulties arising from an issue estoppel created by the findings made in the first action: Craddocks Transport Ltd v Stuart [1970] NZLR 499 (CA); Bollen v Hickson [1981] Qd R 249 (FC); Tiufino v Warland (2000) 50 NSWLR 104 (CA). 156. Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 at 230–1 (CA). 157. Armytage v Commr for Government Transport [1972] 1 NSWLR 331.

158. Hankin v Jacobson [1964] Tas SR 51; Armytage’s case, fn 155 above, at 337–8 per Brereton J; and see Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36, in which no issue was raised as to the respondent’s ability to sue consecutively for each cause of action. 159. Gibbs v Cruikshank (1873) LR 8 CP 454; cf Wells v D’Amico [1961] VR 672. See also Guest v Warren (1854) 9 Ex 379; 156 ER 161 (false imprisonment and malicious prosecution different causes of action for these purposes). 160. Or in the airspace: Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1. 161. See, eg, Thynne v Petrie [1975] Qd R 260. 162. Hole v Chard Union [1894] 1 Ch 293 (CA). 163. In New Zealand any doubts as to whether one can sue one’s professional adviser in tort arising from the decision in McLaren Maycroft & Co v Fletcher Development Co Ltd [1973] 2 NZLR 100 (CA) were resolved by the rejection of that decision in Price Waterhouse v Kwan [2000] 3 NZLR 39 at [17] (CA). 164. For further discussion see Guest, ‘Tort or Contract?’ (1961) 3 U of Malaya L Rev 191; Mason, ‘Contract and Tort: Looking Across the Boundary from the Side of Contract’ (1987) 61 ALJ 228. 165. The legislation is discussed in 10.15. 166. Quinn v Burch Bros (Builders) Ltd [1966] 2 QB 370; [1965] 3 All ER 801 (aff’d on other grounds [1966] 2 QB at 381; 2 All ER 283 (CA)); aliter if the plaintiff chooses to sue both in negligence and for breach of contract: Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88 at 110; [1969] 3 All ER 1681 at 1699 per Rees J. 167. (1999) 197 CLR 1; 161 ALR 155. 168. The courts in New Zealand had arrived at that conclusion without the need for legislative intervention: Rowe v Turner Hopkins & Partners [1980] 2 NZLR 550 at 555–6 per Prichard J, on appeal [1982] 1 NZLR 178 at 181 per Cooke and Roper JJ (CA). 169. In relation to which see Wrongs Act 1958 (Vic) s 23A; 29.32. 170. Macpherson & Kelley v Kevin J Prunty & Associates [1983] 1 VR 573 (FC); see also Leeds & Northrop Australia Pty Ltd v Electricity Commn (NSW) (NSWCA, 4 May 1973, unreported); Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 at 354 per Samuels JA (CA); AWA Ltd v Daniels (1992) 7 ACSR 759 at 856–7 per Rogers CJ Com D (NSWSC) (aff’d Daniels v Anderson (1995) 37 NSWLR 438 (NSWCA)); cf Brown v Sevrup Fisheries Pty Ltd [1970] Tas SR 1; on rights of contribution generally, see 29.31ff. 171. New Zealand Loan & Mercantile Agency Co Ltd v Mitchell (1906) 26 NZLR 433; Poulton v Commonwealth (1953) 89 CLR 540 at 602. 172. Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 384; 229 ALR 58; see further, Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aus ed, 2012, 18.33. 173. County Hotel & Wine Co v London & North Western Ry Co [1918] 2 KB 251 at 258 per McCardie J (the point was not considered when the decision was affirmed [1919] 2 KB 29 (CA); [1921] 1 AC 85 (HL)). 174. Re Timothy’s Pty Ltd [1981] 2 NSWLR 706; and see Trendtex Trading Corp v Credit Suisse [1982] AC 679; [1981] 3 All ER 520 (HL); cf Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (2004) 220 ALR 267 (NSWSC) (assignee had no such interest, hence assignment was ineffective).

175. Monk v ANZ Banking Group Ltd (1994) 34 NSWLR 148; SA Management Corp v Sheahan (1995) 16 ACSR 45 at 57–8 per Debelle J (SASC); National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 at 537–9 per Lindgren J (Fed Ct); Beatty v Brashs Pty Ltd [1998] 2 VR 201; Body Corporate 16113 v Auckland City Council [2008] 1 NZLR 838. 176. See also Marshall, The Assignment of Choses in Action, 1950, p 59. 177. Bankruptcy Act 1966 (Cth) s 82(2). 178. Bankruptcy Act 1966 (Cth) s 153(1). 179. See further, Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 17.3ff. 180. Matthews v Kuwait Bechtel Corp [1959] 2 QB 57; 2 All ER 345. 181. Cf Coupland v Arabian Gulf Petroleum Co [1983] 3 All ER 226 (CA). 182. For illustrations of the difference in result that may be arrived at by applying these differing standards, see Ellul v Oakes (1972) 3 SASR 377 (FC); Walker Hobson & Hill Ltd v Johnson [1981] 2 NZLR 532. 183. See 27.10; even if the defendant’s actions constitute a breach of contract as well: Drane v Evangelou [1978] 2 All ER 437 (CA). 184. Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470 at 477–8 per Griffith CJ; Gray v Motor Accident Commn (1998) 196 CLR 1; 158 ALR 485 at [13] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA). 185. See the discussion of ‘aggravated damages’ in 27.7. 186. Baltic Shipping Co v Dillon (1993) 176 CLR 344; 111 ALR 289; Mouat v Clark Boyce [1992] 2 NZLR 559 at 569 per Cooke P (CA); cf Pier v Imation Holdings Ltd (HC (NZ), 5 December 2006 Rodney Hansen J, unreported). 187. Midland Metals Overseas Pte Ltd v The Christchurch Press Co Ltd [2002] 2 NZLR 289 (CA); and see Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; 17.3. 188. Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 524 per Wilcox J (Fed Ct). 189. Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145; C Czarnikow Ltd v Koufos [1969] 1 AC 350; [1967] 3 All ER 686 (HL). 190. Woodman v Rasmussen [1953] St R Qd 202 at 214 per Philp J (FC); Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791; 1 All ER 525 (CA). 191. Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 193–4; [1994] 3 All ER 506 at 533 per Lord Goff (HL); cf Simms Jones Ltd v Protochem Trading NZ Ltd [1993] 3 NZLR 369. 192. See generally Mason, Carter and Tolhurst, Mason & Carter’s Restitution Law in Australia, 2nd ed, 2008, ch 16. 193. Suttons Motors Pty Ltd v Campbell (1956) 56 SR (NSW) 304 (FC); Chesworth v Farrer [1967] 1 QB 407; [1966] 2 All ER 107. 194. Oughton v Seppings (1830) 1 B & Ad 241; 109 ER 776; Rodgers v Maw (1846) 15 M & W 444; 153 ER 924; Neate v Harding (1851) 6 Ex 349; 155 ER 577. 195. Powell v Rees (1837) 7 Ad & E 426; 112 ER 530.

196. Hill v Perrott (1810) 3 Taunt 274; 128 ER 109; Mahesan S/O Thambiah v Malaysian Government Officers’ Co-op Housing Socy [1979] AC 374; [1978] 2 All ER 405 (PC). 197. United Australia Ltd v Barclays Bank Ltd [1941] AC 1; [1940] 4 All ER 20 (HL); Suttons Motors Pty Ltd v Campbell (1956) 56 SR (NSW) 304 (FC); Mahesan S/O Thambiah v Malaysian Government Officers’ Co-op Housing Socy [1979] AC 374; [1978] 2 All ER 405 (PC). 198. Chesworth v Farrer [1967] 1 QB 407; [1966] 2 All ER 107. 199. Bankruptcy Act 1966 (Cth) s 82(2), on which see Watson v Holliday (1882) 20 Ch D 780 interpreting a similar provision in the English legislation; the Insolvency Act 2006 (NZ) s 232 is more widely drawn, and does not differentiate between actions in tort or restitution. 200. Marshall, The Assignment of Choses in Action, 1950, pp 59–60. 201. If the wrongdoer is the Crown, the plaintiff will be entitled to maintain an action either in tort or in restitution. In all jurisdictions other than the Commonwealth and Victoria, this is provided for either specifically or by the width of the general language used: Legislation Act 2001 (ACT) s 121; Crown Proceedings Act 1988 (NSW) s 5; Crown Proceedings Act 1993 (NT) s 5; Crown Proceedings Act 1980 (Qld) s 8; Crown Proceedings Act 1992 (SA) s 5; Crown Proceedings Act 1993 (Tas) s 5; Crown Suits Act 1947 (WA) s 5; Crown Proceedings Act 1950 (NZ) s 6. Although the liability of the Crown under the Judiciary Act 1903 (Cth) s 56 and the Crown Proceedings Act 1958 (Vic) s 23(1) is stated as being in ‘contract’ or ‘tort’ it is arguable that it would also be liable in restitution: Hogg, Monahan and Wright, Liability of the Crown, 4th ed, 2011, 10.1. 202. Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; ACOA v Commonwealth (1979) 26 ALR 497; see also New Zealand Baking Trades Employees’ Industrial Union v General Foods Corp (NZ) Ltd [1985] 2 NZLR 110 (CA); Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129; Finnigan v NZ Rugby Football Union Inc (No 2) [1985] 2 NZLR 181. 203. (2006) 227 CLR 57; 229 ALR 457, at [65]–[72] per Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed (at [19]). 204. Redland Bricks Ltd v Morris [1970] AC 652; [1969] 2 All ER 576 (HL); Economy Shipping Pty Ltd v Fischer Construction Pty Ltd [1969] 2 NSWR 97. 205. McKinnon Industries Ltd v Walker [1951] 3 DLR 577 at 581 per Lord Simonds (PC); Pride of Derby & Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; 1 All ER 179 (CA); Vincent v Peacock [1973] 1 NSWLR 466 (CA). 206. Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (CA); Munro v Southern Dairies Ltd [1955] VLR 332; and see 14.51. 207. Stollmeyer v Petroleum Development Co Ltd [1918] AC 498 (PC); Spencer v Silva [1942] SASR 213; see also Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 All ER 483 but cf Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1, in which Campbell J declined to follow the Woollerton case, and John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P & CR 104, in which Walton J held that the Woollerton case had been wrongly decided on this issue. 208. See, eg, Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291 (use of mechanical drills on a building site restrained between 9.30 am and 1 pm and between 2 pm and 5 pm on weekdays and between 9.30 am and 12.30 pm on Saturdays); Dunton v Dover District Council (1978) 76 LGR 87 (CA).

[page 797]

CHAPTER 28 Extinction of Remedies

28.1 The principal means by which a plaintiff might find that some or all of the possible remedies available had been extinguished is by the effluxion of the limitation period. That is therefore the first matter dealt with in this chapter. The chapter concludes with a discussion of the other means by which a remedy may be extinguished — the death of either party, satisfaction of a judgment given against one of the parties, the fact of final judgment being entered, the surrender of a cause of action and an accord and satisfaction between the parties.

Limitation 28.2

Legislation in each of the Australian jurisdictions and in New Zealand1 bars the commencement of an action if the plaintiff’s rights accrued more than a specified period prior thereto. After the expiration of the relevant period, the cause of action is said to be ‘statute-barred’. The purpose of such legislation is generally to protect potential defendants from being harassed by claims that arose many years previously, about which they or their witnesses have little recollection and few records.2 And, in view of that purpose, a defendant may, in all jurisdictions other than New South Wales, waive a defence based on the statute, or be estopped from raising it.3

Period of limitation In general

28.3 Subject to the exceptions discussed below, the limitation period for actions in tort in all jurisdictions other than the Northern Territory is six years from the [page 798] accrual of the cause of action.4 In the Northern Territory, the period is three years.5 However, as will be considered below, that period may be extended in the discretion of the court if it is just and reasonable to do so, or may be enlarged on account of the plaintiff’s disability or the defendant’s fraud.

Actions for damages for or in respect of personal injuries 28.4 In five jurisdictions — the Australian Capital Territory, Queensland, South Australia, Tasmania and Western Australia — the limitation period is generally only three years if the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person,6 and the same period applies in New South Wales in relation to accidents on the road,7 while in Victoria the general three-year limitation period applies to both road and industrial injuries.8 However, in New South Wales (in relation to personal injury actions arising other than on the roads), in Tasmania in relation to all actions and in Victoria in relation to actions arising other than on the roads or in the workplace, the commencement of the limitation period may be delayed until the cause of action is discoverable,9 but in any case is 12 years from the accrual of the cause of action.10 The legislation in New South Wales and Tasmania11 is cast in terms of actions for the recovery of personal injury damages ‘for negligence nuisance or breach of duty’. It has been held that these words cover the breach of any duty under the law of tort, and not merely the torts of negligence or nuisance. In consequence, a person with a claim in respect of personal injuries cannot evade the three-year rule by framing the action in trespass rather than negligence.12 The phrase ‘personal injuries’ is defined as including any disease and any impairment of a person’s physical or mental condition.13 The New South

Wales Court of Appeal has concluded that those words extend to injury to feelings, hurt and humiliation of the kind for which damages are frequently awarded in an action for assault or false imprisonment.14 The legislation in Queensland, South Australia, Tasmania and Western Australia relates to actions in which the loss claimed includes ‘damages in respect of personal injuries to any person’. This phraseology encompasses a claim by a husband for loss of consortium, resulting from physical injury to his wife.15 It also includes the loss suffered by a father in bearing the cost of supporting his child, who had suffered mental retardation and physical injury as the result of another’s [page 799] negligence.16 The phrase has further been held to include a claim by a mother for the suffering and loss of an unwanted pregnancy following a failed sterilisation,17 and for the loss of the opportunity to terminate a pregnancy.18

Defective building work 28.5 As is discussed in 28.15, because any defects in the construction of a building are likely not to be discovered until some time after its completion, there has been considerable doubt, and differences of judicial opinion around the common law world, as to the time at which the limitation period commences in a claim for damages arising from such defects. In order to resolve those doubts, legislation in all of the Australian jurisdictions other than Queensland and Western Australia, and in New Zealand, makes special provision as to the limitation period for claims for purely economic loss or the rectification costs resulting from defects in the design, construction, alteration or demolition of a building. In the Australian jurisdictions, the respective statutes of limitation are irrelevant, and the limitation period is 10 years from the completion of the building19 or the date of issue of the occupancy permit.20 In New Zealand, on the other hand, the six-year period set by the Limitation Act generally applies, but if that period does not start until some time after the building has been completed, the Building Act 2004 (NZ) s 393(2) places an ultimate bar on any proceedings relating to building

work of 10 years from the date of the act or omission on which the proceedings are based.

Actions for defamation 28.6 In all jurisdictions in Australia, the limitation period for defamation is generally one year from the first publication of the defamatory matter, but that period may be extended to a maximum of three years if a court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within the one-year limit.21 In New Zealand the limitation period for defamation actions is generally two years but that may be extended for a further two years if the claimant satisfies the court that he or she neither knew, nor ought reasonably to have known of the fact of the defamatory statement having been published, or that the defendant was responsible for that publication.22

Actions for death or injury from civil aviation operations 28.7 It has been explained in 12.40ff that the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) gives the force of law in Australia to the international conventions which provide no-fault compensation for damage sustained in the event of the death or injury of a passenger arising from civil aviation operations. The Commonwealth legislation — which applies to all international carriage between the territories of any two parties [page 800] to the conventions23 and to interstate travel within Australia24 — has been supplemented by legislation in each of the states which extends that liability to all air travel within a state.25 The liability thus imposed is subject to a two year limitation period running from the date of the arrival of the aircraft at its destination, or the date when it ought to have arrived, or the date when the carriage stopped, whichever is later.26

Commencement of the limitation period

General principles 28.8 Subject to special statutory provisions in the Australian Capital Territory, New South Wales, Victoria and Western Australia relating to personal injury,27 the period of limitation begins on the date on which the cause of action accrued. A cause of action accrues at that time when a potential plaintiff is entitled to succeed in an action against a potential defendant. There must then be in existence such a plaintiff and defendant. If a tort is committed against the estate of a deceased person (for example, by wrongfully taking an asset of the deceased), the cause of action does not accrue until an executor or administrator is appointed.28 On the other hand, a plaintiff whose car has been stolen by a thief who is unknown and cannot be traced has a cause of action against that thief from the time of the theft.29

Torts actionable per se 28.9 In the case of torts actionable per se without proof of material damage — especially trespass to land or to the person and wrongs relating to goods — the cause of action accrues at the time of the commission of the wrong.30 This holds true, despite the fact that material damage may result from the wrong at some later date, since such damage is regarded merely as an incident of the initial wrong and not as a new cause of action.31 In the case of conversion or detinue, where there have been successive wrongful acts committed against the goods without the plaintiff having recovered possession, the legislation in all jurisdictions other than South Australia provides that time starts to run from the date of the original tort; it does not re-commence at the time of the subsequent detention or conversion.32 In South Australia, in the absence of similar statutory provision, if goods of A are converted by B, and pass into the hands of C without the latter’s knowledge of the prior wrongful act, the limitation period, as against C, commences only on the refusal to comply with a demand from A for the return of the goods.33 [page 801] If the trespass is a continuing one — such as the placing of an object on the

plaintiff’s land and allowing it to remain there (see 5.4) — the plaintiff will be entitled to bring proceedings based on the continuance of the trespass throughout the relevant limitation period.34

Torts derived from case 28.10 If the plaintiff’s action is based on a tort derived from case, as distinct from trespass, damage is the gist of the action, so that the cause of action generally accrues only when damage is suffered.35 Thus, if the defendant negligently manufactured a defective product in 1980, but the plaintiff was not injured thereby until 1985, the limitation period would start to run only in the latter year;36 or, if the defendant wrongfully removed the lateral support from the plaintiff’s land in 1945, but the land did not start to subside as a result thereof until 1968, the latter year would mark the commencement of the period within which the plaintiff might bring an action in nuisance.37

28.11 However, this general rule is subject to a variety of exceptions and limitations deriving both from legislatures and the courts. A principal reason for the exceptions and limitations is that, in a range of circumstances, a person may suffer some sort of injury or damage but, quite reasonably, be unaware of that fact, and consequently lose the right to sue before knowledge of that right could reasonably have been acquired. Thus, in Cartledge v E Jopling & Sons Ltd38 the plaintiffs had suffered silicosis as a result of inhaling toxic dust at their workplace. The House of Lords held that time started to run once material scarring of the lung tissue had occurred, even though the plaintiffs would not have been aware of the scarring, and it would not have been revealed on an X-ray examination. Hence, although the plaintiffs issued their writs within the then current limitation period of six years after they realised that they had contracted the disease, the claims were held to be statute-barred.39 Again, in Pirelli General Cable Works Ltd v Oscar Faber & Partners,40 the plaintiff had engaged the defendant to advise it on the construction of a chimney, but the defendant carried out its task negligently. As a result, the chimney, which was erected in 1969, was subsequently found to have developed cracks in 1970, although the plaintiffs did not discover this defect until 1977. It was accepted that it was not unreasonable for the plaintiffs to have been unaware of the defect for that

time, but the House of Lords held that the limitation period commenced in 1970 so that the writ issued in 1978 was out of time.

28.12 One legislative response to the obvious injustice demonstrated by those decisions is that, in all the Australian jurisdictions, the limitation statutes make [page 802] provision for the limitation period to be extended in certain circumstances. Since this issue is not concerned with the commencement of the relevant period, and since the legislation differs markedly between the various jurisdictions, it is considered in 28.22. An all-embracing judicial response to the injustices revealed in Cartledge’s case and the Pirelli case is that taken by the Supreme Court of Canada. That court has held that, for the purposes of a limitation defence, a cause of action does not accrue until the plaintiff either knew of the existence of the cause of action or might with reasonable diligence have discovered that damage had been suffered and that a right of action existed.41 The High Court of Australia and the Supreme Court of New Zealand, on the other hand, have rejected that approach, and continue to stress that a cause of action accrues when damage is suffered.42 However, both courts have laid considerable emphasis on the need to determine precisely the nature of the loss that has been suffered, and the time at which that loss crystallises into a cause of action. These are matters which vary with the type of action brought. In order to see more clearly when the limitation period commences, it is necessary to deal in turn with a variety of different types of claims.

28.13 Personal injury In Australia, the general rule that the limitation period commences when harm is suffered, whether or not there is realisation of that fact, continues generally to apply,43 and is qualified by legislation only in the Australian Capital Territory, New South Wales, Tasmania, Victoria and Western Australia. In the Australian Capital Territory in relation to all actions other than industrial injuries, in New South Wales in relation to all actions other than road accident cases, in Tasmania in relation to all actions for personal injury

and in Victoria in relation to actions other than road and industrial injuries, the limitation period of three years starts to run from the date on which the injured person either knows or ought with reasonable diligence to have found out (a) that he or she has suffered an injury, (b) that the injury was the fault of the defendant, and (c) that the injury was sufficiently serious to justify the commencement of proceedings,44 but this is subject to a long-stop limitation period of 12 years from the occurrence of the act or omission on which the action is based.45 In Western Australia the limitation period of three years accrues either when the plaintiff becomes aware that he or she has sustained a not insignificant personal injury or at the time of the first symptom, clinical sign or other manifestation of personal injury consistent with the plaintiff having sustained a not insignificant personal injury.46

28.14 Childhood sexual abuse In the latter years of the twentieth century, the courts around the common law world found themselves grappling with the particular problem of the impact of statutes of limitation on actions by persons who, [page 803] many years after the event, realised that they had suffered sexual abuse in one form or another during their childhood, often at the hands of a member of the family. In such cases, the victim often represses any memory of the abuse while living at home, and only much later makes a connection between psychological difficulties suffered as an adult and the abuse inflicted during childhood. The House of Lords, in A v Hoare,47 overruling its earlier decision in Stubbings v Webb,48 has held that legislation permitting a court to extend the limitation period which, in terms, applied to actions in respect of personal injury arising from ‘negligence, nuisance or breach of duty’, was applicable when the personal injury had been caused by an intentional trespass to the person. The Supreme Court of Canada, on the other hand, has taken the view that whatever the cause of action relied on by the plaintiff, that cause of action does not accrue until ‘the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and her injuries’.49

This approach was followed by the Court of Appeal in New Zealand in S v but subsequently, in Murray v Morel & Co Ltd,51 a case concerned with a false statement in a prospectus, the Supreme Court of New Zealand indicated that, while not prepared to overrule S v G, the resolution of the issues created by actions for childhood sexual abuse should be left to the legislature. That invitation was taken up in the Limitation Act 2010 (NZ), which came into force on 1 January 2011. Section 17 creates a special category of claimant; those who claim to have suffered sexual abuse when they were under 18, or non-sexual abuse by parents, step-parents or legal guardians or any of their close relatives or associates. For this class, the court has a discretion under s 18 to grant relief as though there were no limitation period. In exercising that discretion, the court is required to take into account: hardship to both parties; the length of and reasons for the plaintiff’s delay; the effects of delay on the ability to defend the claim and the cogency of the evidence; the defendant’s conduct; the extent to which the plaintiff took reasonable steps after becoming aware that he or she was entitled to do so; the steps taken to obtain expert advice and the nature of such advice; and any other matters which the court considers relevant. Because the Act has only prospective effect, the previous case law will continue to apply for many years. G,50

In Australia, three different approaches have been taken to the problem of the effect of limitation statutes on actions for childhood sexual abuse. In Wilson v Horne,52 the Full Court in Tasmania held that the plaintiff, who suffered a recognisable psychiatric disorder as a result of her uncle’s repeated abuse of her as a child, was entitled to sue in negligence rather than in trespass, and that her cause of action in negligence did not accrue until she suffered the psychiatric disorder. Since that occurred less than three years before she commenced proceedings, the action was not statute-barred. [page 804] New South Wales and Victoria have enacted special provisions relating to minors who suffer personal injury at the hands of a parent or guardian, or a close associate of a parent or guardian.53 In such a case, the limitation period starts to run when the victim either knows, or ought with reasonable diligence

have been able to ascertain, that the injury for which action is being brought was caused by the fault of the defendant, and that the abuse was sufficiently serious to warrant the bringing of proceedings. However, the legislation imposes an ultimate time bar, in that an action cannot be commenced once the victim turns 37, whether or not he or she has realised the wrongfulness of the defendant’s conduct by then. Western Australia has introduced a measure which may be applicable in similar circumstances, providing that if a person under 18 has a cause of action against someone in a close personal relationship with the plaintiff, the limitation period runs until the plaintiff reaches the age of 25.54 In Stingel v Clark,55 the appellant alleged that she had been raped and assaulted by the respondent more than 30 years prior to commencing proceedings, but that she had suffered late-onset post-traumatic stress disorder within three years of the commencement of her action. The Victorian limitation statute includes56 s 5(1A), under which a claim for damages for personal injury consisting of a disease or disorder may be brought within six years from the date on which the plaintiff first knew that he or she suffered from that disease or disorder, and that the injury was caused by some person. Although a majority of the Victorian Court of Appeal57 held that ‘disease or disorder’ was confined to insidious diseases or disorders, and did not extend to the kind of traumatic disorder of which the plaintiff complained, a majority of the High Court rejected that dichotomy and held that the phrase included the appellant’s post-traumatic stress disorder.

28.15 Defective building works Reference has been made in 28.5 to the legislation in all the Australian jurisdictions other than Queensland and Western Australia, which overrides the limitation statutes of each of those jurisdictions and provides for a 10-year limitation period, commencing on the completion of the building or the issue of the occupancy certificate. In Queensland and Western Australia there is no statutory provision for the commencement of the period, which must therefore be determined on the application of general principles of the law of torts. The House of Lords, in Pirelli General Cable Works Ltd v Oscar Faber & Partners,58 took the view, as already mentioned, that a cause of action in relation to defective building works accrues when material damage occurs, despite the fact that such damage might not reasonably be discovered until some years thereafter. However, not only is that decision unlikely still to

represent the law in England,59 but also its [page 805] reasoning has been rejected in both Australia60 and New Zealand.61 In each of those two countries, the point has been made that if a building is constructed with a latent defect, the only loss which any owner thereof might suffer is the economic harm of having paid too much for the structure. While the defect remains latent, in the sense that it is neither known of nor able to be discovered, the owner of the building cannot be regarded as having suffered any damage, and hence no cause of action has accrued. If that owner were to sell the building, he or she would recover the full value that had been paid for its acquisition. It is only when the defect becomes manifest, in that it is either actually discovered or might with reasonable diligence have been discovered, that the then owner62 suffers the loss of either a depreciation in value63 or the cost of repairs.64

28.16 Defectively drawn document There were a number of cases, both in England65 and Australia66 in which a professional person (usually a solicitor) prepared a document for a client but did so in a negligent manner, with the result that the document did not fulfil the purpose intended by the client. In each case it was held that time started to run from the date of the execution of the document, the reasoning being that it was at that time that the plaintiff suffered damage, by a diminution of assets, even though the deficiencies in the documents did not become manifest until a considerable time later.67 However, the principle to be derived from those cases has been explained by the High Court of Australia. In Wardley Australia Ltd v Western Australia,68 their Honours indicated that they would be prepared to accept the correctness of the English decisions, if they were regarded as resting on the basis that the chose in action which the client acquired as a result of executing the defectively drawn document were regarded as a species of property which turned out later to be worth less than had been intended.69 On the other hand, the High Court disagreed with those cases if all that had happened was that, on executing the document, the client was exposed to a contingent loss or liability. In such a case, the High Court observed, the client could only be said to have suffered a loss, and therefore have a cause of action, when the

contingency is fulfilled and the damage becomes actual, a view which has been accepted as correct in principle by the New Zealand Court of Appeal70 and applied by the High Court in that country.71 [page 806]

28.17 Negligent misrepresentation If a person enters into a contract under the inducement of a negligent misrepresentation, and there and then acquires property which later turns out to be less valuable than it was represented, the loss is suffered at the time of entry into the contract and the limitation period starts from that point.72 Although the extent of the loss may not have been ascertainable then, no condition or contingency needed to be fulfilled in order to arrive at the sum of the damage. But where, on the other hand, a person enters into a contract of indemnity because of the defendant’s negligent misrepresentation, it cannot be said that the person suffers any loss at the point of entry into the contract. The principal, whose liabilities have been indemnified, may carry out its obligations in full, and the one granting the indemnity may never be called on to perform the duties thereunder. The guarantor suffers a loss, and the limitation period commences only when the principal defaults on its obligations and the creditor calls on the guarantor to fulfil those obligations instead.73 Similarly, if a bank advances a loan on the faith of a negligent over-valuation of property provided as security, any action against the valuer crystallises only when the borrower defaults to such an extent that the security is called in, and turns out to be insufficient,74 and where an employee was given negligent advice about his superannuation entitlements his cause of action against the employer was held to have crystallised on his retirement, so that it was only then that he suffered actual loss.75

28.18 Negligent omission A person may, in breach of the duty of care, fail to advise another of that other’s rights, as when a solicitor who had custody of a will failed to advise the executor named therein of that fact.76 In such a circumstance, when it is the defendant’s negligence which itself effectively precludes the plaintiff from discovering the existence of a cause of action, it has been held that the limitation period does not commence until the plaintiff

becomes aware of the existence of the cause of action.77

28.19 Aggravation of injury Aggravation of injury, for present purposes, occurs when, the plaintiff having already been injured (either by the defendant or another), that very injury is exacerbated by an act or omission on the part of the defendant. A straightforward example is of a plaintiff employee whose foot is permanently injured in the course of employment, who then suffers a further injury, again in the course of employment, which leads to the amputation of the leg.78 Since there have been two separate acts of negligence, the plaintiff has two causes of action, each of which accrues at the time of the respective acts. The same principles apply when the plaintiff suffers not traumatic injury but the latent effects of a disease. For so long as [page 807] the defendant fails, say, adequately to protect its employees against their inhalation of toxic dust, an employee is entitled to argue that that failure has aggravated any injury he or she might earlier have suffered from the same cause. Given that the inherent problems of proof can be overcome, the employee will be able to recover compensation for so much of the aggravation of the injury as has occurred during the relevant limitation period.79

28.20 Successive occurrences of damage Whereas aggravation of injury occurs from two (or more) separate acts by the defendant, successive occurrences of damage arise from a single act or omission of the defendant. A claim of this nature is usually confined to an action in nuisance, as for instance when the defendant has wrongfully removed the lateral support from a neighbour’s land. Although the defendant has committed one act only, it is well accepted that a fresh cause of action arises on each occasion that subsidence occurs.80 The same principle has also been applied to an action in negligence for property damage, in which the one act of the defendant local authority — in failing to exercise reasonable care in the issue of a building permit — led to separate and distinct damage to the building. Each occurrence of damage was held to give rise to a fresh cause of action.81 The principle of successive occurrences of injury giving rise to new causes of

action does not, however, apply to claims for personal injury. Any new manifestation of harm is regarded as no more than an incident of the original wrong.82

28.21

Continuing torts A continuing wrong is one in which the defendant’s act or omission causes injury or damage recurrently to the plaintiff, day by day until the wrong is remedied or rendered irremediable. It differs from the notion of aggravation of damage, in that a continuing wrong does not necessarily increase the harm suffered by the plaintiff; it differs from the idea of successive occurrences of damage in that the defendant who commits a continuing wrong is guilty of more than one isolated wrongful act.83 In the tort of nuisance, an example of a continuing wrong is the creation of a state of affairs on the defendant’s land which unreasonably interferes with the plaintiff’s amenities; the plaintiff would be able to recover for all the harm suffered during the relevant limitation period preceding the commencement of the action.84 In the tort of negligence, a continuing wrong is committed by the defendant’s failure to take reasonable action — by non-feasance as opposed to misfeasance. An example is a solicitor who negligently fails to advise the executor named in a will of the death of the testator; the limitation period runs from the time that the omission is remedied and the executor informed.85 In other cases of non-feasance giving rise to an action in negligence where the defendant’s failure to act is subsequently [page 808] rendered incapable of being remedied, time begins to run from the date on which the non-feasance becomes irremediable. At any time prior thereto the defendant, by fulfilling the relevant duty, would have prevented the plaintiff from suffering any harm, and it is therefore only when the omission can no longer be remedied that the plaintiff can be said to have incurred a loss.86

Discretionary extension of the limitation period

28.22 Reference has been made in 28.12 to the fact that in all the Australian jurisdictions the limitation statutes grant to the respective courts a discretion to extend the limitation period. In some cases, the reason for the grant of this discretion is to overcome the injustice highlighted in Cartledge v E Jopling & Sons Ltd87 of a plaintiff who discovers, after the expiration of the period fixed by the statute, that he or she has been suffering from a latent (and possibly compensable) personal injury. In other cases, however, the discretion goes much further, and is at least available (although it need not be exercised) despite the fact that the plaintiff could have ascertained, before the expiration of the statutory period, that a cause of action was available. The terms of the legislation, and their application, will be briefly discussed. Those jurisdictions in which the legislation is identical or substantially similar are considered together, the order of discussion depending on the width of the discretion granted. But, whichever state or territory’s legislation is being considered, it must be remembered that the High Court made it clear, in Brisbane South Regional Health Authority v Taylor,88 that the discretion granted to the respective courts is not to be exercised lightly. As the court observed, once the legislature has determined a limitation period, to allow a plaintiff to commence proceedings outside that period is prima facie prejudicial to the defendant. Even though the plaintiff has satisfied the requirements of the particular statutory provision, he or she still bears the onus of showing that the justice of the case warrants an extension of the limitation period.

South Australia and the Northern Territory 28.23 The legislation in these jurisdictions89 gives to the courts a very wide discretion to extend the relevant limitation period. It may be exercised, whatever the nature of the plaintiff’s complaint — be it for personal injury, property damage or economic harm — and whenever the cause of action may have accrued. The principal limitation on the exercise of the discretion is that the extension of the period need be just in all the circumstances of the case.90 Two further (but alternative) restrictions are that the court must be satisfied either (a) that the plaintiff’s failure to commence proceedings in time resulted from representations or conduct of the defendant;91 or (b) that ‘facts material to the plaintiff’s case were not ascertained by him’ until some time

[page 809] within 12 months92 prior to the institution of proceedings.93 In relation to the latter of these restrictions, in the Northern Territory such facts need not be relevant to the plaintiff’s decision to sue, so long only as they have a bearing on the likelihood of success in the action;94 nor is the plaintiff necessarily debarred if the facts were readily ascertainable,95 or had come to the knowledge of the plaintiff’s agent,96 provided that he or she personally was unaware of them. But in South Australia, by an amendment applying with effect from 1 May 2004, the legislation now provides that a fact is not to be regarded as material unless it forms an essential element of the plaintiff’s cause of action or would have a major impact on the assessment of the plaintiff’s loss.97 Despite the broad interpretation given to the statutory provisions, in permitting a person to seek to have the limitation period extended, there is little doubt that the degree of relevance of material facts, and the ease with which they might have been discovered, will have a bearing on whether the court will in fact exercise its discretion in favour of the potential plaintiff.98 Furthermore, a long delay in bringing proceedings, even though justifiable, is likely to cause irremediable prejudice to the defendant, and therefore be a ground for refusing to exercise the discretion.99 In South Australia, an amendment applying with effect from 1 May 2004 sets out some of the factors to which the court should have regard when determining whether it is just in all the circumstances to grant an extension.100

New South Wales, Victoria and the Australian Capital Territory 28.24 Although the legislation in each of these jurisdictions differs to some extent from that of the others, the relevant provisions are sufficiently similar to be considered together. In New South Wales, three periods of extension are provided for, in each case limited to actions for personal injury. First, a person who has suffered any form of personal injury may apply to have the normal three-year limitation period extended by a maximum of five years.101 Secondly, one who has been unaware of the fact, nature, extent or cause of an injury, disease or impairment may apply, within three years after he or she became aware, or ought to have become aware,102 of those matters, to have

the limitation period extended sufficiently to be able to commence [page 810] proceedings;103 and, thirdly, a person in respect of whom the commencement of the limitation period has been delayed104 may apply to have the 12-year long-stop limitation period extended.105 In Victoria, the court is empowered to extend the limitation period for an indefinite time, in relation to actions for personal injury, both where the limitation period commences on accrual of the cause of action106 and where the commencement of the period has been delayed107 for the reasons discussed in 28.13. In the Australian Capital Territory there is a similar power in relation to actions for personal injuries,108 and a power to extend the period for up to 15 years from the accrual of the cause of action in relation to claims for ‘latent damage to property or for economic loss’.109

28.25 In each case, the power of extension may be exercised if the court considers it just and reasonable to do so, having regard to all the circumstances of the case. In coming to a conclusion on this issue, the court may have regard to a number of factors specified in the legislation. In relation to personal injury claims, the factors listed in each legislative provision are essentially the same as the other, and relate generally to the conduct of the parties prior to the plaintiff’s claim for relief,110 including the length of and reasons for the plaintiff’s delay111 and the prejudice that such delay may cause the defendant.112 The court is required to synthesise a variety of competing considerations in arriving at a conclusion which takes account of all of them.113 The onus remains at all times on the plaintiff to satisfy the court of the justice and reasonableness of an extension of the limitation period.114 With regard to claims in the Australian Capital Territory for latent damage to property and for economic loss, the court is also aided in its determination of what is just and reasonable in all the circumstances by a list of factors to which it may have regard, which relate generally to the conduct of the plaintiff in the period after the accrual of the cause of action.115 In those cases in which the commencement of the limitation

[page 811] period has been delayed because the plaintiff could not reasonably have ascertained the fact of the injury or that it was caused by the fault of the defendant, it is assumed that applications for the extension of the period will be concerned either with those situations in which the cause of action is found to have been discoverable, but was not in fact discovered by the plaintiff, and those circumstances in which the 12-year ‘long-stop’ period has already expired before the plaintiff might reasonably have ascertained the necessary facts.

Western Australia 28.26 The circumstances in which a court in Western Australia may extend the limitation period apply not only to actions for personal injury and death but also in cases of fraud and other improper conduct, in cases in which the plaintiff was a minor when the cause of action accrued and in cases in which the plaintiff suffers a mental disability at any time after the accrual of the cause of action. The power to extend the limitation period with respect to matters other than personal injury is discussed separately.116 In an action for personal injury, the court is empowered to extend the limitation period for up to three years from the time when the plaintiff either became aware, or ought reasonably to have become aware, of the physical cause of his or her injury, that it was attributable to the conduct of a person, and the identity of that person.117

Queensland 28.27 The legislative grant of power in Queensland118 to extend the limitation period applies only to personal injury actions.119 The period may be extended, provided that the court is satisfied that both (a) any of the material facts of a decisive character relating to the cause of action was not within the plaintiff’s knowledge or means of knowledge until some time longer than five years after the cause of action first accrued; and (b) that there is evidence to establish the cause of action (apart from any defence based on the expiry of the limitation period). If these matters have been sufficiently

established, the court may order that the limitation period expires 12 months after the plaintiff first knew, or had the means of knowledge of, the material fact of a decisive character of which he or she was previously unaware. The legislation is derived from the Limitation Act 1963 (UK) ss 1 and 2, which were intended to overcome the injustices brought to light in Cartledge v E Jopling & Sons Ltd.120 However, the English Act had been described as having ‘a strong claim to the distinction of being the worst drafted Act on the statute book’121 and the legislation in Queensland, it has been said,122 copies ‘the complexity and obscurity’ of the English statute. There is little doubt that such complexity is the major reason for the very considerable volume [page 812] of case law devoted to the interpretation of the provisions,123 the analysis of which is outside the scope of this book.124

Tasmania 28.28 The legislation in Tasmania applies only when the damages claimed consist of or include damages in respect of personal injury125 and is limited to a judicial discretion to extend the 12-year long-stop limitation period126 which runs from the occurrence of the act or omission on which the action is based. The extension of time is limited to a further three years, and may be granted having regard to the justice of the case, and in particular whether the passage of time may have precluded a fair trial, and in light of the nature and extent of the plaintiff’s loss and the nature of the defendant’s conduct.127

New Zealand 28.29 The Limitation Act 2010 (NZ) s 14 provides for an extension of the limitation period in any case in which the plaintiff proves that, at the expiry of the standard six-year limitation period, he or she did not know — or ought not reasonably to have known — of the act or omission on which the claim is based, that it was attributable to the defendant, that loss had been suffered as a result of it, that no consent was given or that the act or omission was

induced by fraud or mistaken belief. Such an extension may be sought within three years of the plaintiff acquiring that knowledge,128 but is subject to a long-stop period of 15 years from the date of the act or omission on which the claim is based.129 However, that long-stop period does not apply if the plaintiff proves that the reason for his or her failure to be aware of any or all of those facts was fraud by or on behalf of the defendant.130

Plaintiff under a disability 28.30 If the plaintiff was under a disability at the time of the accrual of the cause of action, the relevant limitation period does not begin to run until he or she is no longer under that disability. In some of the jurisdictions, a disability which occurs during the course of the limitation period will also have the effect of suspending the running of time against the plaintiff. There is also variation in the legislation as to what constitutes a disability. [page 813]

Nature of disability 28.31 In all jurisdictions, a plaintiff is under a disability while a minor — that is, under the age of 18131 — and (although the phraseology of the statutes differs) if he or she was suffering from a mental illness which substantially affected the ability to manage his or her own affairs,132 which has been held to include brain damage caused by the tortfeasor133 and, in a case of childhood sexual abuse, the psychiatric harm caused by that abuse134 or the psychological inability to face up to the fact of the abuse.135 Further bases for regarding a plaintiff as under a disability for these purposes, provided for in some only of the jurisdictions, are that the plaintiff is physically impaired,136 is undergoing a term of imprisonment,137 or is engaged in war or warlike activities.138

Effect of disability 28.32 In Queensland the fact that a person is under a disability is relevant

only if that was the case at the commencement of the limitation period. The effect of the plaintiff then being under a disability is to defer the commencement of the period until the plaintiff ceases to be under a disability, or dies, whichever first occurs.139 In Victoria, the disability of the plaintiff has the same effect,140 unless the plaintiff’s cause of action is for personal injury arising otherwise than on the roads or in the workplace. In that case, the limitation period (which, in relation only to persons under a disability, is the lesser of six years from the date when the cause of action was discoverable or 12 years from the accrual of the cause of action)141 continues to run while the person under the disability is in the custody of a parent or guardian.142 In South Australia and the two territories the fact that a plaintiff is under a disability not only has the effect described in the preceding paragraph, but also suspends the running of the period if the plaintiff should come under a disability after the cause of action has accrued.143 And, in the territories, if the period is suspended for this reason, it is further extended to ensure that the plaintiff has three years after ceasing to be under a disability before the cause of action is statute-barred.144 In South Australia and the Australian Capital Territory, if a child has suffered personal injuries that give rise to a claim for damages, in most instances the child (or his or her parent or guardian) must give notice of the claim to the putative defendant within six years of the claim arising, [page 814] or forfeit the right to recover damages for medical, legal or gratuitous services.145 In the Australian Capital Territory, if the claim relates to the provision of health services, the limitation period is six years from the date either of the accrual of the cause of action or of its discoverability, with a long-stop period, in the latter circumstance, of 12 years from the accrual of the cause of action.146 In New South Wales, in most respects the effect of the plaintiff’s disability is the same as in the territories.147 And if a person suffers a tortious injury while a minor, but on attaining the age of 18 is under the disability of physical impairment, the suspension of the limitation period continues until

the plaintiff is no longer physically impaired.148 However, in the case of a cause of action for personal injury arising other than from the use of a motor vehicle, the limitation period continues to run while the person under the disability was in the custody of a parent or guardian.149 In Tasmania, the effect of the plaintiff being under a disability is to defer the commencement of the period until the plaintiff ceases to be under a disability, or dies, whichever first occurs, unless the plaintiff was, during that time, in the custody of a parent or guardian, in which case the fact of the disability has no effect on the running of the period.150 In Western Australia, the limitation period for minors reduces as the minor nears adulthood. Thus, if the plaintiff is under 15 when the cause of action accrues, the limitation period is generally six years from that accrual;151 if the plaintiff is aged between 15 and 17 when the cause of action accrues, the limitation period generally lasts until he or she turns 21.152 However, if at any time during minority the plaintiff does not have a guardian, time does not run during such a period,153 and the court may extend the period if the plaintiff has a guardian but the court is satisfied that it was unreasonable for the guardian not to commence proceedings.154 But in both instances there is a long-stop provision, bringing the period to an end when the plaintiff turns 21.155 If the plaintiff suffers a mental disability at any time after a cause of action accrues, time will generally continue to run, but it is suspended for any period during which the plaintiff does not have a guardian.156 Furthermore, the court may extend the period for a maximum of 12 years if the plaintiff has a guardian but the court is satisfied that it was unreasonable for the guardian not to commence proceedings.157 In New Zealand, if a plaintiff is incapacitated (whether at the start of the limitation period or at any time during the running of that period) the court has a discretion to extend the period for such time as it thinks fit, based upon a consideration of a variety of factors. One such factor is whether any representative has managed the [page 815] plaintiff’s affairs with respect to the act or omission on which the claim is

based. A second factor is the effect of delay both on the defendant’s ability to defend the action and on the cogency of the evidence. A third factor is the defendant’s conduct, which may include any of (a) his or her response to reasonable requests for discovery, (b) the extent to which prompt and reasonable steps were taken by the plaintiff after he or she became aware of the right to do so, (c) any steps taken to obtain relevant expert evidence, and (d) any other matters which the court considers relevant.158

Fraud and concealment 28.33 Two further grounds for the extension of the limitation period, available in all jurisdictions other than South Australia and New Zealand, are (1) that the action is based upon the fraud of the defendant or that person’s agent, and (2) that facts relevant to the right of action have been deliberately concealed from the plaintiff. In both of these instances, time does not begin to run until the plaintiff has, or with reasonable diligence could have, discovered the fraud or the concealment.159 With regard to the first of these grounds, the legislation refers to an action ‘based on fraud’. The extension of time is available only when fraud is a necessary allegation in order to constitute the cause of action; that is, it is limited to actions in deceit.160 In respect of the second of the above grounds, however, although the wording of the statutes, in all relevant jurisdictions other than the Australian Capital Territory, is cast in terms of fraudulent concealment, it has been construed in a way which is reflected in the phraseology employed in the Australian Capital Territory. For these purposes, ‘fraud’ is interpreted in its equitable sense of unconscionable conduct, and not in its common law sense of a statement known by its maker to be false. Hence, any deliberate suppression of relevant facts, or actions by the defendant designed to prevent the plaintiff from discovering the commission of a tort, are sufficient to delay the commencement of the limitation period.161 But mere negligence in failing to reveal facts is not a ‘fraudulent concealment’ for these purposes.162 It is arguable that, in New South Wales and the two territories, a deliberate concealment of facts undertaken subsequent to the accrual of the cause of action will stop the limitation period running until the plaintiff discovers, or might reasonably have discovered, those concealed matters.163

Western Australia takes a different approach and empowers a court to extend the limitation period up to three years from when the action ought reasonably to have been commenced, if it is satisfied that the delay was attributable to ‘fraudulent or other improper conduct’ of the defendant.164 [page 816]

Contribution between tortfeasors 28.34 The circumstances in which the defendant to a tort action can claim contribution from another tortfeasor are considered in 29.31. Both at common law165 and, in six jurisdictions, by statute166 the cause of action for a claim for contribution arises when the claimant’s liability to the injured person is determined by judgment, agreement or concession. However, the length of the limitation period varies among the various jurisdictions. In New South Wales, Queensland and the two territories, the statutes of limitation provide that the period is the shorter of (a) two years from the accrual of the right of action for contribution, or (b) four years after the expiry of the limitation period for the principal action,167 while in South Australia the contribution legislation provides that the proceedings may be brought within the longer of (a) the limitation period of the principal action or (b) two years after determination of the claimant’s liability.168 In Western Australia and New Zealand, the claimant has two years from the date on which his or her liability is determined.169 In Victoria, the claimant for contribution may commence proceedings at any time before the principal action is statute-barred or within 12 months of being served with the writ in that principal action,170 and in Tasmania the claimant must commence contribution proceedings within 12 months of being served with the writ in the principal action.171

Dependants’ action under fatal accidents legislation 28.35 Reference has been made in 11.32 to the statutory right of action available to dependants where the death of the person on whom they were dependent was caused by the wrongful act, neglect or default of another. The

application of limitation statutes on this right of action requires consideration of two separate limitation periods — that relating to the fatally injured person and that relating to the dependants. Furthermore, there is provision in each of the Australian172 jurisdictions for the extension of one or other of these periods, or both.

General principles 28.36 In order that the dependants may commence an action under the fatal accidents legislation, the deceased must have had a cause of action at the moment of [page 817] death: see 11.38. One reason for the deceased not having such a right is the expiry of the limitation period for the action that would have been maintainable had death not intervened.173 Hence the dependants will generally not be able to maintain an action if the deceased dies, without having commenced an action, more than three years174 after receiving the injury that caused the death. However, in Western Australia if the deceased was suffering from a latent injury which was not reasonably discoverable before death, the dependants’ cause of action accrues on death.175 Provided that the injured person dies as a result of these injuries within these respective times, the dependants then have a new and separate limitation period within which to commence their statutory action. The period is generally measured from the date of death176 and runs for three years in all jurisdictions177 apart from Victoria, where the period is generally six years.178 In New South Wales, if the deceased was injured otherwise than on the roads, and in Victoria if the deceased’s injuries were suffered otherwise than on the roads or in the workplace, and (in both cases) if the deceased could not reasonably have ascertained, within three years before his or her death, the fact of the injury and that it was caused by the fault of the defendant, the dependants have 12 years from the date of death of the deceased within which to commence proceedings.179 Similar provisions apply in Tasmania, if the deceased suffered from a latent injury, except that

the dependants have a maximum limitation period of 12 years from the date of the act or omission which is alleged to have resulted in the death.180

Extension of period 28.37 It has been observed in 28.22 that in all jurisdictions the courts are empowered to extend the limitation period otherwise applicable to an injured plaintiff, either generally or in circumstances in which the plaintiff has suffered a latent physical injury. Similar powers of extension exist when a claim is made under the fatal accidents legislation, either in relation to the deceased’s cause of action or that of the dependants.

28.38 The right of action of the deceased In three jurisdictions, the courts are given a discretion to extend the limitation period that would otherwise have applied to the deceased’s right of action, had death not intervened. In South Australia181 and the Northern Territory,182 the extension may be granted, whatever the reason for the deceased having delayed commencing proceedings, so long as it appears to [page 818] the court that it is just in all the circumstances to do so.183 In New South Wales, the period that would have been applicable to the deceased may be extended for up to five years in any case, so long as the court considers it just and reasonable to do so,184 and for an unlimited time if the deceased or the dependants did not know of the fact, nature, extent or cause of the injury that resulted in death, and make application for the extension of time within three years of becoming aware of those matters.185 The 12-year long-stop period referred to in 28.4 may also be extended, having regard to a similar range of factors.186 The provisions considered in 28.22ff in all the remaining jurisdictions, allowing a discretionary extension of the limitation period, apply only to actions for personal injury and not to actions which would have been for personal injury had the injured person not died; they are therefore not relevant in the present context.

28.39 The dependants’ right of action All jurisdictions permit the action

on behalf of the dependants to be commenced outside the limitation period referred to above, but subject in most cases to some restrictions. In South Australia, the period of three years from the date of death may be extended ‘to such an extent, and upon such terms (if any) as the justice of the case may require’.187 In the Northern Territory, the period may be extended indefinitely, provided that the extension is just in all the circumstances of the case and that the reasons for the delay were either that the executor or administrator (as plaintiff in the dependants’ action) had been unaware of material facts or had been misled by the defendant.188 In Victoria, the period of six years from the date of death (or the date when it was discovered that death had been caused by a latent disease)189 may be extended indefinitely if the court considers it just and reasonable to do so, taking account of a variety of legislatively prescribed factors.190 In Queensland, the period of three years from the date of death may be extended indefinitely, but only if the executor or administrator of the estate of the deceased (as the person in whose name the dependants’ action is brought) did not have the means of knowledge of a material and decisive fact until some time later than two years after the date of death.191 In New South Wales, the period of three years from the date of death may be extended by up to five years more,192 if the court considers it just and reasonable [page 819] to do so, taking account of the same factors as are relevant when a plaintiff seeks an extension of the period within which to bring a personal injury action.193 The period may also be extended indefinitely, if the dependants did not know of the fact, nature, extent or cause of the injury that resulted in death, and the application for an extension of time is made within three years of their becoming aware (or being in a position where they ought to have become aware) of those matters.194 In Tasmania, the court may extend the limitation period of 12 years from the date of the act or omission which allegedly caused the death to three years commencing on the date when either the deceased or the dependants knew or

ought reasonably to have known of the fact and cause of the injury.195 In Western Australia the dependants may apply to a court, even after the limitation period has expired, to extend the time to three years from when the dependants became aware, or ought reasonably to have become aware, of the cause of the death and the identity of the person to whom the death was attributable.196 In the Australian Capital Territory the prescribed limitation period may be extended, if the court thinks it just and reasonable to do so, but only up to a maximum period of six years from the date of death.197

Limitation periods and the conflict of laws 28.40 When a tort is committed in one jurisdiction but sued on in another, the court hearing the action must rely on the rules of the conflict of laws to determine which laws of either of those jurisdictions might apply to the case. At common law as it stood prior to the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson,198 a plaintiff might have succeeded only by showing (a) that the defendant was under a civil liability to the plaintiff by the law of the place where the tort was committed, and (b) that, had the facts arisen within the jurisdiction hearing the matter, the defendant would have been under a similar civil liability to the plaintiff.199 However, these requirements referred only to the substantive laws of the relevant state or territory; matters of procedure, which generally include statutes of limitation, were regarded as being governed solely by the law of the jurisdiction where the action was heard.200 This latter principle had been criticised,201 as it enabled a plaintiff to commence proceedings in a jurisdiction which had a longer limitation period than that in which the tort was committed, and thereby to evade the requirements of a law with which the action may have been closely connected. This shortcoming in the common law was exacerbated within Australia by the terms of the Service and Execution of Process Act 1992 (Cth) s 15 which permits a person to commence proceedings against an Australian resident in any state or territory, despite there [page 820]

being little or no relationship between the parties (or the cause of action) and the place chosen to commence the suit.

28.41 In the light of those concerns, all the Australian jurisdictions, and New Zealand, enacted measures which provide that if the substantive laws of another Australian state or territory, or of New Zealand, are to govern a matter, the limitation laws of that other place shall be regarded as part of that substantive law and applied accordingly, including any provision in the extraterritorial law for the discretionary extension of the limitation period.202 Thus, any tort action, wherever in Australasia it might be commenced, must be brought within the limitation period specified by the law of the place of commission of that tort. To the extent, if any, to which those statutory changes were not sufficient to remedy the mischief at which they were aimed, the High Court, in John Pfeiffer Pty Ltd v Rogerson, held not only that any action brought in Australia on a tort committed elsewhere in the country is governed solely by the law of the place of its commission, but also that ‘laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws’.203

Death 28.42 At common law (subject to some exceptions), the death of either the plaintiff or the defendant led to the abatement of the cause of action. However, this common law rule has been almost entirely abrogated by statute,204 and applies now only to an action for defamation (except Tasmania: see 18.12) and (in those jurisdictions in which it is still extant) the action for seduction of a child.205 With the exception of these latter two, all actions subsisting against, or vested in, a person at the date of death survive against, or for the benefit of, the deceased’s estate. The effect of this legislation has been considered in 11.53ff in the context of the survival of a cause of action for personal injuries. The tortfeasor’s death affects the limitation period within which proceedings may be brought, in all jurisdictions other than New South Wales,206 Queensland, Western

[page 821] Australia and the Australian Capital Territory. In Victoria, the fact that the wrongdoer has died during the limitation period means that the plaintiff may commence an action at any time during that period or, in the case of a personal injury action, within such further period as the court considers just and reasonable in all the circumstances.207 In the remaining jurisdictions, on the other hand, the fact of the tortfeasor’s death may severely curtail the limitation period. Unless proceedings are pending at the date of that death, the plaintiff may be met by a defence of limitation if the tortfeasor died more than a specified period (between six months and two years, depending on the jurisdiction)208 after the accrual of the cause of action. If the wrongdoer died within that specified period, the plaintiff has a foreshortened time (between six and 12 months, depending on the jurisdiction)209 after the personal representatives take out representation. Although these time limits may be extended in the discretion of the court,210 they may often impose an unfair restriction on a plaintiff’s right of action. It is to be hoped that South Australia, Tasmania and the Northern Territory follow the lead of Western Australia, which removed these restrictions in 2005 as part of a wide-ranging review of its limitations legislation.

Satisfaction 28.43 Where judgment for a sum of money has been given for the plaintiff against the defendant and the defendant has satisfied that judgment by payment in full of that money, this discharges the claim of the plaintiff arising out of the same facts, not merely against the defendant, but against any other tortfeasor. Thus, in United Australia Ltd v Barclays Bank Ltd,211 in which the plaintiffs had a cause of action in restitution against one company and another cause of action, in conversion, against the defendant bank, Viscount Simon stated212 that if the plaintiffs had obtained judgment in the restitution action against the other company, and if the latter had then satisfied that judgment, the plaintiffs could not subsequently have sued the bank for the tort of conversion;213 judgment, not followed by satisfaction, would not, however, have barred a claim against the bank.

Judgment 28.44 Final judgment in a suit has two effects. First, the original cause of action is terminated by its merger in the judgment. Where, therefore, the plaintiff elects to sue in conversion rather than for money had and received, although, as has been seen in 27.47, that election does not amount to a waiver of the alternative remedy, [page 822] judgment in that suit of conversion, even if unsatisfied, will bar a further action against the same defendant in restitution.214 And, of course, in those cases where successive actions on the same facts may not be brought (see 27.35) one judgment bars any further proceedings. By virtue of the rule known as res judicata, judgment also operates to terminate certain other claims by either of the parties against the other. Suppose that A sues B for trespass to land, and the court decides that A was in possession of the land and returns a verdict in A’s favour: if B later sues A for battery in ejecting B from the land on that occasion, and A raises the defence that reasonable force was used for the purpose of ejecting a trespasser, B will be estopped by the earlier judgment from denying that he or she was a trespasser.215

Release 28.45 Any surrender of a cause of action may be styled a release, but the term is usually reserved for surrenders by deed: the latter type of release will, therefore, discharge the cause of action even though there is no consideration.216 Release may discharge tortious liability, whether it is given before or after the commencement of the action.217

Accord and Satisfaction 28.46 If the plaintiff enters into a valid contract with the defendant to settle a cause of action, and the defendant performs this contract, the defendant has a defence to any proceedings by the plaintiff based on that cause of action.

The agreement is the ‘accord’; satisfaction is the consideration provided by the tortfeasor, which may be constituted either by a promise of future performance, or performance itself. Whether the cause of action will be discharged by mere agreement and before that agreement has been performed is a matter of interpretation of the agreement, although the courts lean in favour of regarding performance by the defendant of the contract as necessary.218 _______________ 1.

Limitation Act 1985 (ACT); Limitation Act 1969 (NSW); Limitation Act 1981 (NT); Limitation of Actions Act 1974 (Qld); Limitation of Actions Act 1936 (SA); Limitation Act 1974 (Tas); Limitation of Actions Act 1958 (Vic); Limitation Act 2005 (WA); Limitation Act 2010 (NZ).

2.

A’Court v Cross (1825) 3 Bing 329 at 332–3; 130 ER 540 at 541–2 per Best CJ; Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1 at 19; 1 All ER 65 at 72 per Lord Fraser (HL); M(K) v M(H) (1992) 96 DLR (4th) 289 at 303–3 per La Forest J (SCC); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552–3; 139 ALR 1 at 8–9 per McHugh J.

3.

Dismore v Milton [1938] 3 All ER 762 (CA); Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321; Robinson v Craven (1994) 63 SASR 267 (FC); NSW s 63(1) extinguishes the title of the would-be plaintiff to a debt or damages on the expiration of the relevant period: see Commonwealth v Dixon (1988) 13 NSWLR 601 at 609–10 per Hope JA.

4.

ACT s 11(1); NSW s 14(1)(b); Qld s 10(1); SA s 35; Tas s 4(1)(a); Vic s 5(1)(a); WA s 13; NZ s 11.

5.

NT s 11(1)(b).

6.

ACT s 16B(2)(b); Qld s 11; SA s 36; Tas s 5(1); WA s 14(1).

7.

NSW s 18A read with s 50A(3).

8.

Vic s 5(1AA) read with s 27B.

9.

As to when a cause of action is discoverable, see 28.13.

10.

NSW s 50C; Tas s 5A; Vic s 27D.

11.

NSW s 18A; Tas s 5(1).

12.

Kruber v Grzesiak [1963] VR 621; the same principle applies even where the trespass to the person is intentional: Mason v Mason [1997] 1 VR 325 (CA); O’Neill v Foster (2004) 61 NSWLR 499; Stingel v Clark (2006) 226 CLR 442; 228 ALR 229; New South Wales v Radford (2010) 79 NSWLR 327 (CA). The legislation in Queensland expressly refers to trespass as well as nuisance and negligence, while that in South Australia and Western Australia applies to any action for the recovery of damages for personal injury.

13.

ACT s 8(1); NSW s 11(1); Qld s 5(1); SA s 36(2); Tas s 5(5); Vic s 3(1); WA s 3(1).

14.

New South Wales v Radford (2010) 79 NSWLR 327 at [98]–[119] per Sackville AJA, with whom Beazley and Macfarlan JJA agreed.

15.

Opperman v Opperman [1975] Qd R 345 (FC); Petricola v Metropolitan Transit Authority (1989) Aust Torts Reports 80-247 (Vic FC). On actions for loss of consortium, see 24.3.

16.

Partridge v Briggs (SC(Vic), Gobbo J, 2 June 1988, unreported).

17.

Walkin v South Manchester Health Authority [1995] 4 All ER 132 (CA).

18.

Caven v Women’s and Children’s Health (2007) 15 VR 447.

19.

Development Act 1993 (SA) s 73.

20.

Building Act 2004 (ACT) s 142; Environmental Planning and Assessment Act 1979 (NSW) s 109ZK; Building Act 1993 (NT) s 160; Building Act 2000 (Tas) s 255; Building Act 1993 (Vic) s 134.

21.

ACT s 21B; NSW ss 14B, 56A; NT ss 12(2)(b), 44A; Qld s 10AA, 32A; SA s 37; Defamation Act 2005 (Tas) s 20A; Vic ss 5(1AAA), 23B; WA ss 15, 40; NT ss 12(2)(b), 44A. For illustrations of the application of these provisions, see, Jamieson v Chiropractic Board of Australia [2011] QCA 56 and Carey v Australian Broadcasting Corp (2010) 77 NSWLR 136.

22.

NZ s 15.

23.

Art 1 of the Warsaw Convention, scheduled to the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).

24.

Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Pt IV.

25.

Civil Aviation (Carriers’ Liability) Act 1967 (NSW), Civil Aviation (Carriers’ Liability) Act 1964 (Qld), Civil Aviation (Carriers’ Liability) Act 1962 (SA), Civil Aviation (Carriers’ Liability) Act 1963 (Tas), Civil Aviation (Carriers’ Liability) Act 1961 (Vic), Civil Aviation (Carriers’ Liability) Act 1961 (WA).

26.

Warsaw Convention Art 29, Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34.

27.

Considered in 28.13.

28.

Murray v East India Co (1821) 5 B & Ald 204; 106 ER 1167; Pratt v Swaine (1828) 8 B & C 285; 108 ER 1049.

29.

R B Policies at Lloyd’s v Butler [1950] 1 KB 76; [1949] 2 All ER 226.

30.

O’Neill v Foster (2004) 61 NSWLR 499.

31.

T v H [1995] 3 NZLR 37, esp at 52 per Hardie Boys J (CA); cf M(K) v M(H) (1992) 96 DLR (4th) 289 (SCC), in which a cause of action in trespass was held not to accrue until the plaintiff had become aware of the resultant damage: see 28.12. The general principle does not apply if the trespass, especially to land, is deliberately concealed from the plaintiff: see Bulli Coal Mining Co v Osborne [1899] AC 351 and 28.33.

32.

ACT s 18; NSW s 21; NT s 19(1); Qld s 12(1); Tas s 6(1); Vic s 6(1); WA s 60; NZ s 30.

33.

Spackman v Foster (1883) 11 QBD 99; Miller v Dell [1891] 1 QB 468 (CA).

34.

Hardy v Ryle (1829) 9 B & C 603; 109 ER 224.

35.

For a restatement of this principle, see Hawkins v Clayton (1988) 164 CLR 539 at 587; 78 ALR 69 at 103 per Deane J, at 599; 112 per Gaudron J.

36.

Watson v Winget Ltd (1960) SC (HL) 100; and see Gabolinscy v Hamilton City Corp [1975] 1 NZLR 150 at 159 per Moller J; Page v Castlemaine City Council (1988) 66 LGRA 296 (Vic SC); London Congregational Union Inc v Harriss & Harriss [1988] 1 All ER 15 (CA).

37.

Thynne v Petrie [1975] Qd R 260.

38.

[1963] AC 758; 1 All ER 341.

39.

And since, on the facts of that case, the defendants were found no longer to be in breach of their duty to the plaintiffs after September 1950, the plaintiffs, in writs issued in December 1956, could not claim for any aggravation of the disease within the limitation period: see further 28.19.

40.

[1983] 2 AC 1; 1 All ER 65 (HL).

41.

Kamloops (City of) v Nielsen (1984) 10 DLR (4th) 641; Central Trust Co v Rafuse (1986) 31 DLR (4th) 481; M(K) v M(H) (1992) 96 DLR (4th) 289 at 301 per La Forest J.

42.

Hawkins v Clayton (1988) 164 CLR 539 at 587–8; 78 ALR 69 at 103–4 per Deane J (with whom Mason CJ and Wilson J agreed on this issue), at 599–600; 112–13 per Gaudron J; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 540; 109 ALR 247 at 264–5 per Deane J; Murray v Morel & Co Ltd [2007] 3 NZLR 721.

43.

See, eg, Martindale v Burrows [1997] 1 Qd R 243.

44.

ACT s 16B(2)(a); NSW s 50D; Tas s 5A(3)(a); Vic s 27F; for extensive discussion of the NSW provision see Baker-Morrison v New South Wales (2009) 74 NSWLR 454 (CA) and New South Wales v Gillett [2012] NSWCA 83; for a discussion of the Tas provision, see Tusyn v Tasmania (No 3) [2010] TASSC 55.

45.

ACT s 16B(1); NSW s 50C; Tas s 5A(3)(b); Vic s 27D(1).

46.

WA s 55(1), and see the detailed provisions in s 56 for the accrual of a cause of action for personal injury attributable to the inhalation of asbestos.

47.

[2008] 1 AC 844; 2 All ER 1.

48.

[1993] AC 498; 1 All ER 322.

49.

M(K) v M(H) (1992) 96 DLR (4th) 289 at 298 per La Forest J.

50.

[1995] 3 NZLR 681; the action was for exemplary and not compensatory damages: see the Accident Compensation Act 2001 (NZ) s 319 and 27.13. See also S v Attorney-General [2003] 3 NZLR 450 (CA) at [41]–[45] in which the plaintiff victim of childhood sexual abuse was found, because of his psychological inability for many years to face up to the fact of the abuse, to be under a disability, which delayed the commencement of the limitation period: see further 28.30.

51.

[2007] 3 NZLR 721.

52.

(1999) 8 Tas R 363.

53.

NSW s 50E; Vic s 27I.

54.

WA s 33.

55.

(2006) 226 CLR 442; 228 ALR 229.

56.

Section 27N, read with s 5(9), means that s 5(1A) has not been applicable since 2003.

57.

Clark v Stingel [2005] VSCA 107.

58.

[1983] 2 AC 1; 1 All ER 65; see 28.11.

59.

See the discussion in Nitrigin Eireann Teoranta v Inco Alloys Ltd [1992] 1 All ER 854 and in Invercargill City Council v Hamlin [1996] AC 624 at 646–7; 1 All ER 756 at 770–1 (PC). In any case, the issue is of decreasing importance, since the Latent Damage Act 1986 (UK) permits the court, in its discretion, to extend the limitation period in such circumstances.

60.

Hawkins v Clayton (1988) 164 CLR 539 at 588; 78 ALR 69 at 104 per Deane J (with whom Mason CJ and Wilson J agreed on this issue), at 601; 114 per Gaudron J; see also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 504–5; 60 ALR 1 at 60–1 per Deane J. The

issue was not raised in Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163. 61.

Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA), aff’d [1996] AC 624; 1 All ER 756 (PC).

62.

On the right of one not the original owner to sue those responsible for the defect, see 13.66.

63.

Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA).

64.

Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 at 71 (App Div); Cyril Smith & Associates Pty Ltd v The Owners Strata Plan No 64970 [2011] NSWCA 181.

65.

Forster v Outred & Co [1982] 2 All ER 753 (CA); DW Moore & Co Ltd v Ferrier [1988] 1 All ER 400 (CA); Bell v Peter Browne & Co [1990] 2 QB 495; 3 All ER 124 (CA). The issue is of decreasing importance in England, as the Latent Damage Act 1986 (UK) permits the court, in its discretion, to extend the limitation period in such circumstances: Island Trucking Ltd v Hogg Robinson & Gardner Mountain (Marine) Ltd [1990] 1 All ER 826 at 835 per Evans J.

66.

Gillespie v Elliot [1987] 2 Qd R 509 (FC); Commr of Taxation v Zimmerlie [1988] 2 Qd R 500.

67.

The same conclusion has also been arrived at in Davys Burton v Thom [2009] 1 NZLR 437 (SCNZ).

68.

(1992) 175 CLR 514 at 531–2; 109 ALR 247 at 258.

69.

As was found to be the case in Gilbert v Shanahan [1998] 3 NZLR 528 at 543–4 (CA) and Stratford v Phillips Shayle-George (2001) 21 FRNZ 307 (CA); see also Winnote Pty Ltd v Page (2006) 68 NSWLR 531 (CA).

70.

Gilbert v Shanahan [1998] 3 NZLR 528 at 538–42.

71.

Rabadan v Gale [1996] 3 NZLR 220.

72.

See, eg, Francis v Whatson [1994] 2 Qd R 584 (CA); Scarcella v Lettice (2000) 51 NSWLR 302 (CA); Edwards v Stocks (No 1) (2008) 17 Tas R 408 (FC); cf Christopoulos v Angelos (1996) 41 NSWLR 700 (CA), in which the property decreased in value only some years after it had been acquired by the plaintiff.

73.

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247; see also UBAF Ltd v European American Banking Corp [1984] QB 713; 2 All ER 226 (CA); Broadcasting Corp of New Zealand v Progeni International Ltd [1990] 1 NZLR 109; Law Society v Sephton & Co [2006] 2 AC 543; 3 All ER 401 (appellant’s fund for the compensation of solicitor’s clients held to be under a contingent liability only, and hence the limitation period did not start to run until a claim was made on it).

74.

First National Commercial Bank plc v Humberts [1995] 2 All ER 673 (CA).

75.

Commonwealth v Cornwell (2007) 229 CLR 519; 234 ALR 148.

76.

As occurred in Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69.

77.

Hawkins v Clayton (1988) 164 CLR at 590–1; 78 ALR at 105–6 per Deane J (with whom Mason CJ and Wilson J agreed on this issue); Gorton v Commonwealth [1992] 2 Qd R 603.

78.

On the problems relating to causation which can arise in such circumstances, see 9.20ff.

79.

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (FC).

80.

Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 (HL); Thynne v Petrie [1975] Qd R 260.

81.

Mt Albert Borough Council v Johnson [1979] 2 NZLR 234 (CA); see also Bowen v Paramount

Builders (Hamilton) Ltd [1977] 1 NZLR 394 at 424 per Cooke J. 82.

Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 779–80; 1 All ER 341 at 349–50 per Lord Pearce.

83.

For a discussion of the differences between the various types of injury, see Harrington (Earl of) v Derby Corporation [1905] 1 Ch 205 at 226–8 per Buckley J.

84.

Harrington (Earl of) v Derby Corporation [1905] 1 Ch 205 at 227 per Buckley J; see also Jones v Municipal Council of Sydney (1880) 1 LR (NSW) L 315 (FC).

85.

Hawkins v Clayton (1988) 164 CLR 539 at 590–1; 78 ALR 69 at 106 per Deane J (with whom Mason CJ and Wilson J agreed on this issue), at 602; 115 per Gaudron J.

86.

Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384; [1978] 3 All ER 571 (failure to register an option); Doundoulakis v Antony Sdrinis & Co [1989] VR 781 (FC) (failure to commence personal injury action in time); and see Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 392; 82 ALR 617.

87.

[1963] AC 758; 1 All ER 341 (HL); see 28.11.

88.

(1996) 186 CLR 541; 139 ALR 1.

89.

SA s 48; NT s 44.

90.

SA s 48(3)(b); NT s 44(3)(b). See the discussion of this aspect of the legislation in South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [452]–[463] (FC).

91.

SA s 48(3)(b)(ii); NT s 44(3)(b)(ii); for an application of this sub-paragraph, see South Australia v Johnson (1982) 42 ALR 161 at 169 (HCA).

92.

On the application of this phrase, see Ward v Walton (1989) 66 NTR 20 (CA).

93.

SA s 48(3)(b)(i); NT s 44(3)(b)(i).

94.

Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; 75 ALR 513, approving Napolitano v Coyle (1977) 15 SASR 559; Wright v Donatelli (1995) 65 SASR 307 (FC); Bradman v Allens Arthur Robinson (2010) 107 SASR 1 (FC); Fersch v Power & Water Authority (1990) 101 FLR 78 (NT CA). The fact that the plaintiff (wrongly) thought that it had an action on foot against the defendant is not a relevant fact for these purposes: Berno Bros Pty Ltd v Green’s Steel Constructions Pty Ltd (1992) 84 NTR 1.

95.

A plaintiff ‘may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier’: Napolitano v Coyle (1977) 15 SASR 559 at 569 per Bray CJ, quoted with approval in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636; 75 ALR 513 at 518–19.

96.

As occurred in Sola Optical, fn 94 above and in Ward v Walton (1989) 66 NTR 20 (CA).

97.

SA s 48(3)(a).

98.

Napolitano v Coyle (1977) 15 SASR 559 at 569 per Bray CJ. For a general statement of the matters to be considered in the exercise of the discretion under these provisions, see Ulowski v Miller [1968] SASR 277 at 280 per Bray CJ. See also Hristofis v Kanellos (1992) 163 LSJS 142 (FC).

99.

See Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 at [445] (FC).

100. SA s 48(3)(b). 101. NSW s 60C; McMillan v Bevan [2002] NSWCA 143. This power does not apply to a person in

respect of whom the commencement of the limitation period has been delayed under s 50D, referred to in 28.13. 102. On the application of this phrase see Commonwealth v Shaw (2006) 66 NSWLR 325 (CA). 103. NSW ss 60F, 60G, 60I. The ultimate bar of 30 years set by s 51(1) does not apply to applications under these sections: s 51(2). 104. See 28.13. 105. NSW s 62A. 106. Vic s 23A. 107. Vic s 27K. 108. ACT s 36; the discretion may be exercised, even though the cause of action arose at any time prior to the commencement of the Act: see s 35. 109. ACT s 40. 110. NSW s 60E(1)(a)–(h) (in relation to the first period of extension); s 60I (in relation to latent injuries); Dedousis v Water Board (1994) 181 CLR 171; 125 ALR 193; Commonwealth v Dinnison (1995) 56 FCR 389; 129 ALR 239 (FC); Eijkman v Magann [2005] NSWCA 358; s 62B (in relation to cases where the start of the limitation period has been delayed); Vic s 23A(3) (a)–(f) (where the limitation period commences on accrual of the cause of action); Bell v SPC Ltd [1989] VR 170 (FC); s 27L (where the commencement of the limitation period has been delayed); ACT s 36(3)(a) to (f). 111. The period of delay commences with the accrual of the cause of action, not the expiry of the limitation period: Repco Corp Ltd v Scardamaglia [1996] 1 VR 7 (App Div). 112. Holt v Wynter (2000) 49 NSWLR 128 (CA); South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; Koumorou v Victoria [1991] 2 VR 265; Paramasivam v Flynn (1998) 90 FCR 489; 160 ALR 203 (FC). 113. Kinzett v McCourt (1999) 46 NSWLR 32 (CA); Tsiadis v Patterson (2001) 4 VR 114 (CA). 114. Parsons v Doukas (2001) 52 NSWLR 162 (CA); Bell v SPC Ltd [1989] VR 170 (FC); S & B Pty Ltd v Podobnik (1994) 53 FCR 380 (FC) and see generally Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. 115. ACT s 40(2)(a) to (e). 116. See 28.30ff (disability); 28.33ff (fraud and concealment); 28.36ff (death). 117. WA s 39. 118. Qld s 31. 119. For discussion of the meaning of this phrase, see 28.4. 120. [1963] AC 758; 1 All ER 341 (HL); see 28.11. 121. Smith v Central Asbestos Co Ltd [1973] AC 518 at 529; [1972] 2 All ER 1135 at 1138 per Lord Reid. 122. Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 238; 52 ALR 231 at 234 per Murphy ACJ; see also Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 698 per Kirby P (CA). 123. Some of the more important decisions of the Queensland Court of Appeal concerned with the meaning of the legislation are: Randel v Brisbane City Council [1984] 2 Qd R 276 (FC); Dwan v Farquhar [1988] 1 Qd R 234 (FC); Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 (CA);

Dick v University of Queensland [2000] 2 Qd R 476 (CA); Watters v Queensland Rail [2001] 1 Qd R 448; Suncorp Metway Insurance Ltd v Norris [2012] QCA 101. 124. The Queensland Law Reform Commission recommended provisions along the lines of those subsequently adopted in NSW and Vic under which the commencement of the limitation period would be delayed, but that the period could nevertheless be extended: Review of the Limitation of Actions Act 1974 (Qld), Report No 53, 1998, but that recommendation has not yet been implemented. 125. The meaning of this phrase is considered in 28.4. 126. The reason for the long-stop limitation period is discussed in 28.13. 127. Tas s 5A(5). 128. Section 11(3)(a). 129. Section 11(3)(b). 130. Section 48. 131. Limitation Act 1985 s 8(3)(a) (ACT); Limitation Act 1969 s 11(3)(a) (NSW); Age of Majority Act 1974 s 4 (NT); Age of Majority Act 1974 s 5 (Qld); Age of Majority (Reduction) Act 1971 s 3 (SA); Age of Majority Act 1973 s 3 (Tas); Age of Majority Act 1977 s 3 (Vic); Age of Majority Act 1972 s 5 (WA); Limitation Act 2010 s 44 (NZ). 132. ACT s 8(3)(b); NSW s 11(3)(b); NT s 4(1); Qld s 5(2) and (3); SA s 45(2); Tas s 2(2) and (3); Vic s 3(2) and (3); WA s 3(1); NZ s 2(2) and (3). 133. Flemming v Gibson (2001) 34 MVR 40 (Qld CA); Holland v Metropolitan Health Services Board [2001] WASCA 155. 134. SB v New South Wales (2004) 13 VR 527. 135. S v Attorney-General [2003] 3 NZLR 450 (CA). 136. ACT s 8(3)(b)(i); NSW s 11(3)(b); NT s 4(1); NZ s 46(a). 137. NSW s 11(3)(b)(ii); NT s 4(1); Qld s 5(2); NZ s 46(b). 138. ACT s 8(3)(b)(ii) and (iii); NSW s 11(3)(b)(iii) and (iv); Vic s 23(2); NZ s 46(c). 139. Qld s 29(1) and (2)(c), considered in Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493 (FC). 140. Vic s 23(1). 141. Vic s 27E. 142. Vic s 27J(1). 143. SA s 45; ACT s 30; NT s 36. 144. ACT s 30(1)(f); NT s 36(1)(e). 145. SA s 45A; ACT s 30A. 146. ACT s 30B. 147. NSW s 52, considered in State Rail Authority (NSW) v Hammond (1988) 15 NSWLR 395 (CA). 148. Guthrie v Spence (2009) 78 NSWLR 225 (CA). 149. NSW s 27J(1). 150. Tas s 26.

151. WA s 30(1). 152. WA s 31(1). 153. WA s 32. 154. WA s 41(1), (3). 155. WA ss 32(2), 41(2), but see s 33 (if a defendant is in a close relationship with a minor, the longstop is extended until the plaintiff turns 25). 156. WA s 35. 157. WA s 42. 158. NZ s 45. 159. ACT s 33; NSW s 55; NT s 42; Qld s 38; Tas s 32(1); Vic s 27. For the position in WA, see fn 164 below; the effect of fraud in NZ is referred to in 28.29. 160. Paramasivam v Flynn (1998) 90 FCR 489 at 510–11; 160 ALR 203 at 224 (FC). 161. Bulli Coal Mining Co v Osborne [1899] AC 351 (PC); Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700; Hamilton v Kaljo (1989) 17 NSWLR 381; Grahame Allen & Sons Pty Ltd v Water Resources Commn [2000] 1 Qd R 523; Tusyn v Tasmania (2004) 13 Tas R 51. 162. Gabolinscy v Hamilton City Corp [1975] 1 NZLR 150 at 161 per Moller J; Hawkins v Clayton (1988) 164 CLR 539 at 590; 78 ALR 69 at 106 per Deane J; Seymour v Seymour (1996) 40 NSWLR 358 (CA); Cave v Robinson Jarvis & Rolf [2003] 1 AC 384; [2002] 2 All ER 641. 163. See Sheldon v RHM Outhwaite (Underwriting Agencies) Ltd [1996] AC 102; [1995] 2 All ER 558; Williams v Fanshaw Porter & Hazelhurst [2004] 2 All ER 616 (CA). 164. WA s 38. 165. Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 (FC). 166. ACT s 21(2); NSW s 26(2); NT s 24(2); Qld s 40(2); WA s 58; NZ s 34(4). 167. NSW s 26(1); Qld s 40(1); ACT s 21(1); NT s 24(1). In New South Wales, the period is not subject to an extension under ss 60C or 60G, discussed in 28.24: Yates v Costain Australia Ltd (1989) 18 NSWLR 312, but in Queensland an extension of the limitation period for the principal cause of action applies also to contribution proceedings in respect thereof: Workers’ Compensation Board v Seltsam Pty Ltd [1999] 2 Qd R 679 (CA). 168. Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6(4). 169. WA s 17; NZ s 34(4). 170. Wrongs Act 1958 (Vic) s 24(4). As to the time within which a third party, against whom a claim for contribution has been made, may commence further contribution proceedings against a fourth party, see State Electricity Commn v Fooks [1994] 1 VR 259 (App Div). 171. Wrongs Act 1954 (Tas) s 3(5), although the period may be extended: see s 3(6). In both Victoria and Tasmania, the claimant for contribution may be statute-barred from that proceeding before the cause of action for contribution has accrued: Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484 (FC). 172. No reference is made in this part to New Zealand law, as the right of action arising on death has been abolished by the Accident Compensation Act 2001 (NZ). 173. Williams v Mersey Docks & Harbour Board [1905] 1 KB 804; Harding v Lithgow Corporation

(1937) 57 CLR 186 at 194 per Dixon J. 174. The limitation period for personal injury actions: see 28.4. 175. WA s 57. 176. Except in the case of a dependant who is then a minor, in which case the period, for that dependant, commences when he or she attains majority: Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95; 93 ALR 224 (FC); there is a further exception in Victoria where, if the death results from a latent injury of which the deceased was unaware, the period runs from the date that the dependants first knew of the true cause of death: Wrongs Act 1958 (Vic) s 20(1A). 177. ACT: Limitation Act 1985 s 16(b); NSW: Limitation Act 1969 s 19(b); NT: Limitation Act 1981 s 17; Qld: Limitation Act 1974 s 11; SA: Civil Liability Act 1936 s 25; Tas: Limitation Act 1974 s 5(2); WA Limitation Act 2005 s 14(2). 178. Vic: Wrongs Act 1958 s 20(1). 179. Limitation Act 1969 s 50C(3) (NSW); Limitation of Actions Act 1958 s 27H (Vic). 180. Limitation Act 1974 s 5A (Tas). 181. Limitation of Actions Act 1936 (SA) s 48. 182. Limitation Act 1981 (NT) s 44. 183. The other restrictions on the exercise of this discretion, contained in SA s 48(3)(b)(i) and (ii) and NT s 44(3)(b)(i) and (ii) discussed in 28.23, refer to reasons for ‘the plaintiff’ having been dilatory, and are not apposite to a claim under the fatal accidents legislation. 184. Limitation Act 1969 (NSW) s 60D; the restrictions on the availability of this power to extend are parallel to those applicable to plaintiffs who sue for their own personal injury, discussed in 28.24. 185. Limitation Act 1969 (NSW) s 60H; the matters to be considered by the court in deciding whether to extend the time are the same as those applicable to plaintiffs who sue for their own personal injuries, discussed in 28.25. 186. NSW s 62C. 187. Limitation of Actions Act 1936 (SA) s 48(1); the restrictions in respect of, eg, personal injury actions contained in s 48(3)(b) (see 28.23) apply only in relation to extensions of the time prescribed by that Act, whereas the time limit for the dependants’ action is prescribed by the Civil Liability Act 1936 s 25. See also Blomme v Sutton (1989) 52 SASR 576 (FC). 188. Limitation Act 1981 (NT) s 44(3)(b); for a fuller consideration of this paragraph, see 28.23. 189. Wrongs Act 1958 (Vic) s 20(1A). 190. Wrongs Act 1958 (Vic) s 20(2) and (3); and see Limitation of Actions Act 1958 (Vic) s 27L(4). 191. Limitation of Actions Act 1974 (Qld) s 31; for a fuller discussion of the restrictions on the right to seek an extension of time, which also apply when the plaintiff seeks recompense for his or her own personal injuries, see 28.27. 192. Limitation Act 1969 (NSW) s 60D. 193. Ibid s 60E; for discussion of those factors, see 28.25. 194. Ibid ss 60H 60I. 195. Limitation Act 1974 (Tas) s 5A. 196. Limitation Act 2005 (WA) s 39.

197. Limitation Act 1985 (ACT) s 39 (which includes a list of factors to which the court may have regard in determining whether to exercise its discretion, discussed in Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95; 93 ALR 224 (FC)). 198. (2000) 203 CLR 503; 172 ALR 625. 199. Breavington v Godleman (1988) 169 CLR 41 at 110–11; 80 ALR 362 at 396 per Brennan J; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 39; 104 ALR 257 at 276. 200. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; 104 ALR 257. In New South Wales, the terms of the Limitations Act 1969 s 63(1) render that statute a rule of substantive, not procedural, law. 201. Australian Law Reform Commission, Report on Choice of Law (ALRC 58, 1992), 10.24–10.27. 202. Limitation Act 1985 ss 56, 57 (ACT); Choice of Law (Limitation Periods) Act 1993 ss 5, 6 (NSW); Choice of Law (Limitation Periods) Act 1994 ss 5, 6 (NT); Choice of Law (Limitation Periods) Act 1996 ss 5, 6 (Qld); Limitation Act 1936 s 38A (SA); Limitation Act 1974 ss 32C, 32D (Tas); Choice of Law (Limitation Periods) Act 1993 ss 5, 6 (Vic); Choice of Law (Limitation Periods) Act 1994 ss 5, 6 (WA); Limitation Act 2010 s 55 (NZ). See also Mason v Murray’s Charter Coaches & Travel Services Pty Ltd (1998) 88 FCR 308; 159 ALR 45 (FC); Brear v James Hardie & Co Pty Ltd (2000) 50 NSWLR 388 (CA); Berriman v Cricket Australia (2007) 17 VR 528. 203. (2000) 203 CLR 503; 172 ALR 625 at [102] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 204. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Succession Act 1981 (Qld) s 66(1); Survival of Causes of Action Act 1940 (SA) s 2; Administration and Probate Act 1935 (Tas) s 27(1); Administration and Probate Act 1958 (Vic) s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1); Civil Law (Wrongs) Act 2002 (ACT) s 15(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5; Law Reform Act 1936 (NZ) s 3(1). 205. For discussion of this latter action, see 24.9. The legislation in all Australian jurisdictions other than Queensland, Tasmania and the Australian Capital Territory also exempts from survival the actions for inducing one spouse to leave the other, and for damages for adultery, but these actions have been abolished by the Family Law Act 1975 (Cth) s 120. 206. For the reasons for the current position there, see New South Wales Law Reform Commission, Report on Limitations of Actions (LRC 3, 1967), [39]–[41]. 207. Vic s 29(3)(b) and (3A). 208. Six months: SA s 4(b); 12 months: NT s 7(1)(b); Tas s 27(5)(b); two years: NZ s 3(3)(b). 209. Six months: SA s 4(b); Tas s 27(5)(b); 12 months: NT s 7(1)(b); NZ s 3(3)(b). This applies to actions brought under the local equivalents of Lord Campbell’s Act as well as personal injury actions: Blomme v Sutton (1989) 52 SASR 576 (FC). 210. In most cases the power of extension is contained in the same provision as that imposing the restriction, but a general power to extend limitation periods is contained in the Limitation of Actions Act 1936 (SA) s 48 and the Limitation Act 1981 (NT) s 44, on which see 28.23. 211. [1941] AC 1; [1940] 4 All ER 20 (HL). 212. Ibid at 21; 31. 213. Contra if the parties had merely arrived at a settlement which, though embodied in a judge’s order, is not a judgment: Rice v Reed [1900] 1 QB 54 (CA).

214. Buckland v Johnson (1854) 15 CB 145; 139 ER 375, approved in United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 16–17; [1940] 4 All ER 20 at 28 per Viscount Simon LC. 215. For an example of the operation of these principles in a personal injury action, see Talbot v Berkshire County Council [1994] QB 290; [1993] 4 All ER 9 (CA). 216. For an example of a release of an action in tort, see Phillips v Clagett (1843) 11 M & W 84; 152 ER 725. 217. Apley Estates Co v De Bernales [1946] 2 All ER 338 (aff’d [1947] Ch 217; 1 All ER (CA), where the point was not discussed). 218. Scott v English [1947] VLR 445 at 452–3 per Fullagar J; Auckland Bus Co Ltd v New Lynn Borough [1965] NZLR 542 at 556 per North P (CA). On accord and satisfaction generally, see Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 4.24.

[page 823]

CHAPTER 29 Parties

The Crown1 29.1 At common law, the Crown was immune from all liability, the theory being that it was inconsistent for the sovereign to be subject to his or her own courts. Even when this immunity was relaxed, by virtue of the procedure known as the petition of right, it did not extend to the vicarious liability of the Crown for the acts of its servants or agents. However, legislation in Australia and New Zealand now ensures that, subject to some limitations and exceptions, the Crown in right of the Commonwealth,2 the states,3 the internal territories4 and New Zealand5 is subject to the same liabilities in tort as a subject.

Meaning of ‘the Crown’ 29.2 The legislation in some jurisdictions6 expressly defines the Crown as including the relevant government and ministers of state in that government, while in the other jurisdictions that is a necessary inference from the legislative provisions. With regard to statutory bodies set up by the government — commissions, corporations, instrumentalities and the like — while the legislation in a number of jurisdictions7 imposes on them the same liabilities as are imposed on the Crown, the result in the other jurisdictions is the same; either the body is not regarded as being within the notion of ‘the Crown’, in which case it is subject to the same liabilities as any other person, natural or juristic, or it is treated as being an emanation of the Crown, and subject to the same liabilities as the government.8

Vicarious liability 29.3 The legislation makes it clear that the Crown is vicariously liable for the torts of its servants and agents and (in those cases where such liability is imposed: [page 824] see 26.20ff) its independent contractors. In most jurisdictions, this result is achieved by a general provision imposing on the Crown the same liabilities, as nearly as possible, as would be imposed on a subject,9 while in Victoria and New Zealand express provision is made for the vicarious liability of the Crown.10 But the Crown is not liable for all the torts committed by persons who, in a broad sense, are employed by the government. As has been explained in 26.57ff, if the wrong complained of was done by a public official while in the course of carrying out an independent duty or function cast upon that person by common law or statute, then, in all jurisdictions other than New South Wales, South Australia and New Zealand,11 the official alone is liable and no vicarious liability is imposed upon the Crown.

Personal liability 29.4 Although a company, if it is to be found liable in tort, is usually so liable vicariously for the acts or omissions of its servants or agents, it may also be under a direct, or personal, liability. Examples of such liability are that of an employer, to provide its employees with a safe system of work, and that of an occupier of land, for negligence or nuisance. In all jurisdictions other than Victoria and New Zealand, the Crown is under the same personal liability to persons claiming that it has breached a duty imposed by the law of torts. This result is achieved by a general provision equating the liability of the Crown with that of a subject.12 In Victoria and New Zealand, on the other hand, the only basis for the Crown’s liability is vicariously, so that it remains immune from any action in which, if it were brought against a private person, the liability would be direct.13

Violation of interest protected by statute 29.5

It has been observed in 16.10 that the action brought for the infringement of rights protected by statute — commonly referred to as one for breach of statutory duty — is dependent for all its incidents on the interpretation given to the statute in question. It follows that if the Crown is sued in such an action, an initial question must be whether the statute, either expressly or by necessary implication, binds the Crown. If it does not, the plaintiff fails in limine in seeking to establish a cause of action. Although a majority of the High Court, in Downs v Williams,14 held that certain industrial safety legislation in New South Wales did not bind the Crown in right of that state, the effect of that decision has been abrogated by subsequent amendment to the industrial safety legislation.15 Furthermore, the High Court has subsequently criticised the principles on which Downs v Williams was based as failing [page 825] to give full effect to previous observations by members of that court.16 It may be surmised that, if a suitable case were to come before the High Court, it would be prepared to overrule Downs v Williams.

Military operations 29.6

Before the Crown can be vicariously liable for the acts of its employees, the plaintiff must show, at least in an action in negligence, that the employee owed a duty of care. The High Court has accepted17 that no duty exists if the injury is inflicted during the course of military operations in time of war, although it has also held, in Groves v Commonwealth,18 that no such immunity applies to the activities of a member of the armed forces who is performing tasks, during peacetime, which might equally have been undertaken by a civilian. The court in Groves’ case left open the question of the existence or otherwise of a duty when the injury is suffered in the course of warlike operations or during a military training exercise which is designed to simulate active service.19

Foreign States 29.7 At common law — which applies in New Zealand — a foreign state is immune from action in the courts in relation to acts of a governmental nature, whether the proceedings involve that state directly or indirectly.20 However, a foreign state which engages in acts of a commercial nature may be sued in the New Zealand courts in an action in rem,21 and most probably also in an action in personam.22 Whether a particular body is to be regarded, for those purposes, as a foreign state or the department of a foreign government may apparently be determined by the New Zealand court itself.23

29.8 In Australia, on the other hand, the law has been codified24 in the Foreign States Immunities Act 1985 (Cth). By virtue of ss 13 and 14 of that Act, a foreign [page 826] state25 is not immune from suit in respect of the death of or personal injury to a person, the loss of or damage to tangible property or obligations of the state arising out of its possession or use of immovable property, provided that the tort was committed in Australia. In other respects — for example, an action for defamation — s 9 of the Act ensures that foreign states remain immune from process,26 unless they submit to the jurisdiction of an Australian court.27

Diplomatic and Consular Officers 29.9 Both Australia28 and New Zealand29 have given the force of law to various provisions of the Vienna Conventions on Diplomatic and Consular Relations, whereby the members of the diplomatic staff30 of a mission (including a mission of an international organisation) and consular officers and employees31 are immune from the jurisdiction of the local courts; the state which these officers represent may, however, waive that immunity.32

Trade Unions

29.10 A trade union registered under the federal industrial arbitration legislation has corporate status and may sue or be sued in its registered name.33 In general, unions registered under the state legislation relating to industrial arbitration (in all states other than Tasmania) may similarly sue or be sued in their corporate name.34 In Australia, a trade union registered under the federal legislation is granted some protection from an action in tort in relation to conduct undertaken in furtherance of an industrial dispute.35 In New Zealand the Employment Court has exclusive jurisdiction to hear an action founded on tort resulting from or relating to an unlawful36 strike or lockout.37 [page 827]

Unincorporated Associations 29.11 Many clubs and societies formed for social, sporting or charitable purposes acquire corporate status either by registration under the relevant legislation38 or by the formation of a company limited by guarantee. In that case, the association itself is a distinct legal entity which may sue or be sued in its corporate name. If, however, the club or society is not incorporated, it has no legal identity and can neither sue nor be sued.39 Furthermore, the totality of the members who make up the association may well have interests different from those of the association, and hence also be unable to bring proceedings and be under no common liability. The issues of the rights and the liabilities of the members of an unincorporated association require separate discussion.

As plaintiffs 29.12 Since an unincorporated association has no existence in law separate from that of the members, it cannot sue in its own name,40 and, depending on the nature of the tort alleged, the members as a body have no rights of action. Thus, defamatory words written about a club would not necessarily be sufficiently identifiable with office-bearers of the club to give them the right

to sue.41 However, a trade association, even though unincorporated, may through its members’ own goodwill be sufficiently identifiable to found an action in passing off.42

As defendants 29.13 Just as an unincorporated association is unable to sue in its own name, so also it cannot be sued because of its lack of legal identity.43 However, a person who alleges that injury has been suffered through the acts of some or all of the members of such a body has at least one, and possibly two, alternative avenues of recourse. First, action may be taken against those office-bearers of the club who may fairly be regarded as responsible for the commission of the tort. For instance, the members forming the executive committee of an association (and only those members) have been held to be jointly and vicariously liable for the negligence of an employee in the preparation of a report,44 and the same group has been regarded as jointly being the occupiers of premises for the purpose of establishing liability to an entrant to those premises.45 [page 828] Secondly, rules of court46 provide that where a number of people have the same interest in an action, proceedings may be taken against any one or more of them as representing the whole group. However, the relevant rule of court has been interpreted restrictively, as requiring ‘both a common interest in the cause or matter and a community of interest in the defence between the named defendants and those whom they represent’.47 Thus, it has been held not to be available in an action in defamation48 or in nuisance,49 because of the diversity of defences which may be open to different members of the association.50

Partners 29.14 By virtue of statutory provisions in each jurisdiction,51 partners are jointly and severally liable to any person not also a partner for torts

committed by any one of them while acting either in the ordinary course of the business of the firm52 or with the authority of the co-partners. In addition to this vicarious liability, each partner may owe a primary or personal duty in tort so that, for instance, if the partnership publishes a defamatory statement to which qualified privilege attaches, but one of the members of the firm is actuated by malice, that member alone will be liable in defamation.53

Husband and Wife 29.15 At common law, the legal personality of a woman was subsumed within that of her husband on marriage.54 This notion of the unity, for legal purposes, of a married couple had both a direct and an indirect effect on a married woman’s rights and liabilities in tort. The direct effect was that one spouse was unable to sue the other, while the indirect effect was that, since a wife could not own any separate property, her husband was joined as codefendant in any action brought against her by a third party. Both of these restrictions have been removed by legislation. [page 829] In both Australia (by virtue of federal legislation)55 and New Zealand56 spouses are entitled to sue one another, although in the latter country that right is subject to a judicial discretion to stay proceedings if it appears that ‘no substantial benefit, whether material or otherwise, would accrue to either party’ by the continuation of the action. Legislation of the states and territories of Australia, and of New Zealand,57 ensures that the fact of a woman being married has no effect on her rights or liabilities in tort.

Intellectually Disabled Persons 29.16 Whether the fact that a defendant is intellectually disabled will provide a defence to an action in tort depends, first, on the degree of that disability and, secondly, on the nature of the wrong complained of. Although there is little direct authority, it appears that if the defendant’s disability is such as to deprive him or her of the power to control any bodily

movements — if, in other words, the defendant is in a state of automatism — there will be no liability for injury inflicted on others.58 Where, however, the disability is not so severe, and the defendant retains the power of physical control, the effect of that mental impairment on liability will depend on the nature of the wrong alleged to have been committed. The tort of trespass (whether to the person or to goods or land) requires only that the defendant intended to commit the act complained of, and not that he or she intended to cause harm. Hence, a defendant will be liable for that tort provided that he or she voluntarily committed the act of invading another’s rights, even though the mental infirmity might be such as to rob the defendant of the realisation that the act was wrong.59 Similarly, negligence is committed by the failure to maintain a standard of care which is generally determined objectively (see 8.17ff), so that the fact that the defendant intended to commit the act complained of is sufficient to ground liability, even though he or she may not have realised that the act was a wrong.60 It is only in the case of a tort, one element of which is the intention to cause harm — such as inducing breach of contract, intimidation or conspiracy — that a defendant may be excused if an intellectual disability was such as to render him or her incapable of forming that intention.61 [page 830]

Minors 29.17 A person ceases to be a minor in Australia62 on attaining the age of 18 and in New Zealand63 on reaching the age of 20. A minor’s capacity to sue is no different from that of any other plaintiff, except that the minor must sue by a litigation guardian.64 With regard to a minor’s liability in tort, account is taken of his or her age in two quite separate ways: first, in determining the standard of care in an action in negligence; and secondly, if the minor’s acts are also a breach of contract.

The standard of care

29.18 It has been observed in 8.15ff that the generally objective assessment of the standard of care expected of a defendant in a negligence action is subject to an exception in the case of a defendant who is a minor. Such a person is required to observe only that degree of care to be expected of a person of similar age, experience and intelligence.65 Similarly, if it is the plaintiff who is a minor, against whom the defence of contributory negligence is raised, the degree of care for his or her own safety that is required is dependent upon the plaintiff’s age and experience: see 10.11. This approach is to be contrasted with that taken if the tort alleged against the minor is trespass rather than negligence. In such a case, the minor will be liable so long as he or she was of a sufficient age to have intended to carry out the act of trespass, even though he or she was too young to realise the wrongful nature of the act.66

Liability for tort which is also a breach of contract 29.19 With certain exceptions, a contract with a minor is not enforceable against him or her during minority.67 At least one purpose of this rule is to protect the minor against the presumed inexperience arising from youth. This purpose would be defeated if, in a case where a minor’s act constituted both a tort and a breach of contract, the plaintiff were to frame the action in tort alone. However, the fact that [page 831] many types of contract are unenforceable against a minor is a privilege granted to the minor for his or her protection,68 and ought therefore not to be abused. Despite some lack of clarity in the cases, it appears that at common law if a minor has, by the one act, committed both a breach of contract and a tort, the plaintiff will be disentitled from pursuing the claim in tort unless the defendant’s reliance on a plea of minority would be an abuse of the privilege.69 In New South Wales, statutory provisions have clarified the position and render a minor liable in tort, whether or not the minor’s acts

were also a breach of contract.70

Bankruptcy Liability 29.20 If a plaintiff’s claim against a bankrupt is for unliquidated damages, and is solely a liability in tort, legislation in Australia71 prevents the plaintiff from proving for the amount of the damages in the bankruptcy. The bankrupt remains liable for the tort and may (subject to the relevant limitation statute) be sued even after discharge. But if the claim is one that may be framed either in tort or contract, it is regarded, for these purposes, as a contractual claim, and is provable in the bankruptcy.72 In New Zealand, on the other hand, claims for unliquidated damages, even though founded on tort alone, are provable in bankruptcy.73 In both countries, the discharge of the bankrupt terminates the liability for all provable debts.74 Of more practical concern than the above legal rules is legislation in both countries whereby, if the bankrupt was insured against liability to a third person, the latter is entitled to direct recourse against the proceeds of the policy, rather than their falling into the bankrupt’s estate.75

Power to sue 29.21 In Australia, the legislation expressly provides that any action commenced by a person who subsequently becomes bankrupt (other than an action for ‘personal injury or wrong’) shall thereupon be stayed until the trustee in bankruptcy elects whether or not to proceed with it.76 Actions which are personal to the bankrupt, and which he or she may therefore continue, include, for instance, those for emotional distress and injury to reputation,77 but not an action for damages for loss of earning capacity resulting from physical injury.78 [page 832]

In New Zealand, the legislation is worded differently, but the effect is much the same as in Australia, so that an action for damages for injury to the bankrupt’s reputation or credit may be continued by him or her,79 whereas one that is for purely financial loss to property passes, on bankruptcy, to the Official Assignee, depriving the bankrupt of a cause of action.80

Assignees 29.22 As a general rule, a right to sue in tort is not assignable, as the transfer of the right savours of maintenance and champerty.81 In consequence, an assignee has no standing to commence or continue the action. There are, however, three limitations on this rule. 1.

If A assigns tangible property to B, the former may also validly assign any right of action properly incidental to that property, such as a claim for damage done to the property.82 It has also been suggested that if A’s right of action, although framed in tort, is in substance a means of determining the title to property, A may validly assign that right, since it is regarded as a transfer of the property.83

2.

Provided that the right of action is not a personal one such as for damages for personal injury, defamation or the like, one who has a genuine and substantial interest in the success of an action may validly take an assignment thereof.84

3.

If the plaintiff had taken out insurance against the loss caused by an alleged tort, and the insurer agrees to settle the plaintiff’s claim on the policy, the insurer may, in consideration of that settlement, validly take an assignment of the plaintiff’s claim in tort. Thereafter, the insurer may prosecute the tort action in its own name.85

Convicted Persons 29.23 Although in many jurisdictions one who is convicted of a crime has the same right to sue in tort as anyone else, in some jurisdictions the fact that a person is serving a sentence of imprisonment imposes some restrictions on the right to sue and on the consequences of taking action. At common law a person sentenced to death suffered attainder, whereby all

civil rights, including the right to bring an action in tort, would be lost. This restriction [page 833] continued to apply even if the sentence had been commuted to life imprisonment and the offender had been released on licence.86 It may be that the same restriction applied to one convicted of a felony.87 In Queensland, the common law has been replaced by legislation88 based on the Forfeiture Act 1870 (UK) s 8 which prohibits a convicted person, while serving the term of imprisonment, from bringing a tort action of a property nature,89 or for the recovery of any debt or damage, including one for damages for personal injury.90 In New South Wales and Tasmania, one who has been convicted of a serious crime and is serving a prison sentence may commence proceedings only with the leave of the court before which the action is to be brought.91 In the other Australian jurisdictions, and in New Zealand, a person convicted of a crime is under no civil disability, although that result is achieved by a variety of means. In South Australia and the Northern Territory there is legislative provision expressly to that effect;92 in Victoria and New Zealand, the restrictions imposed by local equivalents of the Forfeiture Act 1870 (UK) s 8 have been removed;93 and in Western Australia and the Australian Capital Territory attainder has been abolished94 and such common law restrictions as might have applied to those convicted of a felony have been removed by the abrogation of the distinction between felonies and misdemeanours.95 Despite the general reduction in the disabilities imposed on those serving a prison sentence, legislation in New South Wales imposes a different kind of restriction. Under the Civil Liability Act 2002 (NSW) Pt 2A, a prisoner who suffers personal injury or death by the negligence of those in control of the prison cannot recover compensatory or aggravated damages unless the injury results in either death or permanent impairment of the body of at least 15%, but this provision does not prevent the award of exemplary damages.96

Another set of legislative provisions in New South Wales, Queensland and Victoria97 imposes different limitations on the payment of a damages award to a prisoner. If a prisoner is entitled to an award of damages for any wrong committed against him or her by those in control of the prison, the award (subject to some exceptions) is to be paid into a separate trust fund, from which may be drawn money to provide compensation for anyone who has suffered from conduct of the prisoner which, on [page 834] the balance of probabilities, was an offence.98 The limitations imposed on damages awards in New South Wales for prisoners injured while in custody, referred to above, would appear to restrict considerably any benefit for victims of crime to be derived from this measure, while in the other jurisdictions these measures appear to serve as a major disincentive for a prisoner to bring proceedings in the first place, to the disadvantage of both prisoner and victim.99

Multiple Tortfeasors100 Categories 29.24 There are three broad categories of circumstance where one person may suffer damage as the result of wrongdoing by two or more persons: if these persons are (1) joint tortfeasors; (2) several concurrent tortfeasors; and (3) several tortfeasors causing different damage. Although legislation in each of the jurisdictions101 has substantially minimised (or, in Australia, completely removed) the need to distinguish between the first and second of these categories, the distinction between these two categories and the third remains of considerable significance: see 29.29.

Joint tortfeasors 29.25 In this category are those cases in which the plaintiff has one cause of action against two or more persons who have, in one way or another, acted

in concert. The category comprises the following: (a)

One who is vicariously liable for the acts of another, in accordance with the principles considered in Chapter 26.

(b)

Where there is breach of a duty imposed jointly on two or more persons. For instance, the occupiers of premises are joint tortfeasors if either of them has failed to take reasonable care for the safety of persons coming onto land or buildings jointly owned by them.

(c)

Where persons take ‘concerted action to a common end’102 and, in the course of executing that joint purpose, any one of them commits a tort, all of them are jointly liable. The essential fact to establish such joint liability is that there be some form of agreement, express or implied, to undertake the activity complained of.103 So, for instance, an inquiry agent who concurred in the actions of another agent and a husband in entering the wife’s apartment looking for evidence of her adultery would be a joint tortfeasor despite having played only a minor role,104 all the partners will be jointly liable for a tort committed by one [page 835] of them in connection with the firm’s business,105 and the director of a company may be jointly liable with the company, if the director has a close personal involvement in the wrongful act.106 Tacit agreement has even been found where a landlord invited his lodger to help him detect an escape of gas on the premises by striking a match; the landlord was found to be a joint tortfeasor in respect of the ensuing explosion, even though it was the lodger who had exposed the flame to the gas.107 And, assuming the necessary concurrence between the parties, it is not essential that all of them realise the wrongfulness of the activity, so that the author, printer and publisher of a book containing defamatory material may be joint tortfeasors,108 as may one radio or television station which broadcasts defamatory material by relay from another station.109

Several concurrent tortfeasors

29.26 The term several concurrent tortfeasors is applied to persons who, although not acting in concert between themselves, inflict a single injury to the plaintiff.110 A common example is that of two motorists who collide (each having acted negligently), causing injury to a passenger in one of the cars.111 Further illustrations include: successive employers of a person who claims that the injuries he or she now suffers from were caused, in part, by the negligence of each employer;112 the owners of various mines, each of whom deposited in a stream deleterious matter which in combination created a nuisance for the plaintiff, the owner of property downstream from the mines;113 and the manufacturer of a defectively designed machine and one who, being aware of the defect, allowed another to operate the machine, as a result of which that other was injured.114

Several tortfeasors causing different damage 29.27 Into this category come those who not only do not act in concert with one another but also cause different damage to the plaintiff. The difference between this category and the one previously discussed is that the defendants falling within this category are regarded as inflicting separate items of damage on the plaintiff.115 One example is that of D1, a motorist who by negligent driving causes personal injury to the plaintiff, and D2, a solicitor whose negligence results in the plaintiff being unable to proceed with an action against D1.116 A further illustration is that of D1, who negligently causes physical injury to the plaintiff, and D2, a medical practitioner [page 836] who attends to the plaintiff’s injuries but whose treatment is so inexcusably bad as to cause considerable exacerbation thereto. In such a circumstance, either the treatment by D2 is a novus actus interveniens or the resulting exacerbation of the plaintiff’s injuries is too remote a consequence of D1’s negligence;117 the result is that the initial physical injury is regarded as a damage separate and distinct from the effects of the medical practitioner’s treatment.

Differences between the categories The distinction between joint tortfeasors and several concurrent tortfeasors 29.28 It is important to bear in mind that if the defendants are joint tortfeasors, the plaintiff was regarded at common law as having only one cause of action, whereas if the defendants are several concurrent tortfeasors the plaintiff has several causes of action, but has suffered only one damage. These differences led (or in some cases continue to lead) to the following results. (a)

If the plaintiff obtained judgment against one joint tortfeasor, the cause of action merged, at common law, with the judgment. The plaintiff was therefore barred from commencing or continuing proceedings against the other joint tortfeasors, even though the judgment already obtained remained unsatisfied.118 Such was not the case if the defendants were several concurrent tortfeasors.119 However, this distinction has been removed by legislation in all jurisdictions, which is discussed in 29.31.

(b)

If the plaintiff should agree to release one joint tortfeasor, as consideration for settling the action, the common law rule was that the agreement operated to release the other joint tortfeasors, because of the unitary nature of the plaintiff’s cause of action,120 although whether the release of one of several concurrent tortfeasors had that effect depends upon the terms of the release. However, the High Court of Australia, in Thompson v Australian Capital Television Pty Ltd,121 held that the legislation providing for contribution between concurrent tortfeasors, discussed in 29.31, impliedly122 abrogated that common law rule, by severing the unitary nature of the cause of action. Thus, an award of differing amounts of exemplary damages may be made against two or more joint tortfeasors123 and, at least in Australia, a release of one joint tortfeasor has the same effect as the release of one concurrent tortfeasor, and no longer prevents the plaintiff from continuing or commencing action against another defendant. In New Zealand, on the other hand, the Court of Appeal had,

[page 837] prior to the Thompson case, rejected that interpretation of the legislation,124 and has subsequently125 declined to adopt the reasoning of the High Court. The effect of an agreement of release on the liability of the other possible defendants depends very much on the wording employed. If it is interpreted as finally settling the obligations between the plaintiff and all the defendants,126 then once it is satisfied the plaintiff’s one damage has been compensated, and he or she cannot seek recompense against any of the other defendants, even though they are several concurrent tortfeasors. But if, on the other hand, the release is interpreted as being limited to the liability between the plaintiff and the party with whom it is made,127 the plaintiff will not thereby be prevented from pursuing other defendants.128

The distinction between joint and several concurrent tortfeasors, and other several tortfeasors 29.29 The primary point of distinction between, on the one hand, joint and several concurrent tortfeasors and, on the other, several tortfeasors causing different damage, is that in the former categories liability is, in one way or another, unitary whereas in the latter category it is diverse. Liability is unitary in that there is either one cause of action (in the case of joint tortfeasors) or one damage (in the case of several concurrent tortfeasors). From this point of distinction the following consequences flow. (a)

Concurrent tortfeasors, whether joint or several, are generally129 each answerable in full for the whole damage caused to the plaintiff;130 other several tortfeasors are merely answerable for the damage which each has caused. It may therefore be of crucial importance to determine whether the defendants were acting in concert. Suppose that A and B are engaged on a hunting expedition, that both of them simultaneously fire across a highway at game on the other side, that a shot injures P on the highway, but it is not known which of A or B fired it. If A and B are joint tortfeasors acting in concert, P (assuming that he or she can establish a tort) can recover full damages from either.131 But if they are

several tortfeasors, they have not caused the same damage (for only one has caused any damage at all) and the success of the action depends on proof of the commission of a tort by the one who is sued.132 [page 838] (b)

Satisfaction by any concurrent tortfeasor of the whole of the loss suffered by the plaintiff discharges the liability of all the others (see 29.43), whereas satisfaction by a several non-concurrent one does not.133

(c)

As will be seen in the following pages, there is in general a right of contribution between concurrent tortfeasors (whether joint or several), but not in respect of other tortfeasors.

Effect of injured party bringing more than one action 29.30 If a plaintiff has been injured by two or more concurrent tortfeasors, he or she may sue either of them separately. While such a proceeding does not prevent the plaintiff from subsequently suing any of the other tortfeasors, legislation in all jurisdictions determines the effect in the second proceedings of any damages awarded in the first proceedings. A provision which is identical in New South Wales, Queensland, Western Australia, the Northern Territory and New Zealand, and which is to the same effect as that in the Australian Capital Territory, states (in part) that the sums recoverable by way of damages ‘shall not in the aggregate exceed the amount of the damages awarded by the judgment first given’.134 The High Court135 has held that if the first action is settled, a consent judgment signed as a result of that settlement is not ‘the judgment first given’ within the meaning of that provision, allowing the plaintiff, in the second proceedings, to recover compensation in excess of the amount of the consent judgment. The court was of the view that a consent judgment signed after settlement of proceedings does not necessarily reflect the full amount of the plaintiff’s loss,

and that consequently the right to recover further compensation in the second action did not offend against the common law principle against double satisfaction. On the contrary, the interpretation adopted by the court was regarded as being the only one that upheld the principle that, in the absence of very clear language to the contrary, a statute should not be construed as infringing the common law principle that a plaintiff is entitled to recoup fully the damage suffered as a result of the joint/concurrent tort.136

Contribution 29.31 Apart from those circumstances, discussed in 29.42ff, in which liability is proportionate rather than solidary, legislation in each of the jurisdictions137 allows [page 839] one concurrent tortfeasor (whether joint or several) to recover from the others contribution towards the amount paid to the plaintiff;138 such contribution may in some circumstances amount to a complete indemnity.

Scope 29.32 In all jurisdictions other than South Australia and Victoria, the legislation applies only when all the persons who might be liable to the plaintiff are so liable in tort, as distinct from breach of trust,139 contravention of the Australian Consumer Law s 18,140 or breach of a strict contractual obligation.141 Thus, if a plaintiff’s complaint is of damage caused by a product sold by D1 and manufactured by D2, neither of the defendants, if sued alone, can claim contribution from the other, since D1’s liability (it is assumed) is in contract alone, whereas D2’s may be in tort142 or under the consumer guarantee provisions of the Australian Consumer Law. However, the difficulties which this may cause for the particular defendant who is sued have been substantially reduced in recent years by a variety of means. If, for instance, D1 is liable to P under the Australian Consumer Law and D2 is liable in negligence,143 or D1 is liable for breach of contract and

D2 is liable in negligence,144 each defendant may seek equitable contribution from the other. And, if D1’s obligations in contract are concurrent and coextensive with his or her duty in negligence,145 legislation in some jurisdictions146 mirrors the approach taken by the courts,147 that D1 may claim contribution from D2, even though the plaintiff has framed the action against D1 solely in contract. Furthermore, the obligation of a company liquidator to exercise reasonable care and skill,148 and a statutory right of direct recourse against an insurer149 have both been classified as ‘tortious’ for these purposes. In South Australia and Victoria, any such difficulties are removed entirely by the legislation, which, in South Australia permits a claim for contribution if the defendants’ various liabilities arise under the law of torts, or for breach of a [page 840] contractual duty of care or under statute150 and, in Victoria permits a claim for contribution to be made, whatever the legal basis of the liability of the claimant and the person against whom the claim is made.151

Who may claim contribution? 29.33 The legislation provides that, if a plaintiff suffers damage as the result of a tort, any tortfeasor who is ‘liable in respect of that damage’152 is entitled to claim contribution. Such a person ‘liable’ for these purposes includes not only one who has been sued to judgment,153 but also one who has submitted to a consent judgment or who has settled the claim made by the plaintiff.154 In the former circumstance, it is not open to D2 (the person from whom contribution is claimed) to re-open the issue of the liability of D1 (the person claiming contribution) nor the amount of damages payable to the plaintiff.155 In the latter case, in which D1 has settled the plaintiff’s claim, in all jurisdictions other than Tasmania and Victoria it is open to D2 to argue either the fact or the extent of D1’s liability to the plaintiff.156 Since such a result is a disincentive to a defendant to settle a claim (and in view of the cost involved and the adverse shift in the onus of proof for D1), the legislation in

Tasmania and Victoria permits D1 to rely on a bona fide or reasonable settlement in making a claim for contribution.157

Those from whom contribution may be claimed 29.34 Contribution may be claimed only from one who has caused the plaintiff the ‘same damage’ as that brought about by the claimant; that is, in general, D1 and D2 must be joint, or several concurrent, tortfeasors.158 D1 may seek contribution from D2, even though D2 is a ‘one man’ company, owned and controlled by the plaintiff.159 The legislation in most jurisdictions is couched in terms of a claim being available against one who ‘is, or would if sued have been, liable’ for that damage. A person ‘is liable’ for these purposes if that person is (at least partially) ‘responsible in law’ for the damage suffered by the plaintiff. The legislation thus excludes one who has been [page 841] sued by the injured person and held by the court (for whatever reason) not to be liable,160 or one in whose favour a consent order has been made,161 but includes one against whom action has been taken but the proceedings have been dismissed for want of prosecution162 or other reason falling short of an unequivocal determination so as to give rise to res judicata and issue estoppel.163 A person ‘would if sued have been liable’ so long as there was some point of time at which the injured party might have successfully brought proceedings against that other.164 It is therefore immaterial that, at the time when D1 commences proceedings for contribution against D2, P’s claim against D2 has become statute-barred.165 D1 must, nevertheless, bring the contribution proceedings within the separate limitation period specified in the relevant jurisdiction: see 28.34. It is also immaterial for these purposes that D2 has settled P’s claim prior to D1’s commencing an action for contribution, since D2 was still under a potential liability prior to the settlement.166 But a court must decide that D2 was under a potential liability, and cannot merely assume that fact.167

However, a person is not obliged to make contribution if, prior to the occurrence of the tort, either the injured party168 or the other tortfeasor169 has given an indemnity against liability.

29.35 The contribution legislation discussed in the preceding paragraphs is not the only statutory provision relating to the persons from whom contribution may (or may not) be sought. Many claims for contribution have been made by insurance companies which, after satisfying the liability of D1 to P, have sought contribution from another tortfeasor in the exercise of their rights of subrogation. But if that other tortfeasor is not insured, the effect of the insurer taking this action is to shift part of the loss from a good to a poor loss distributor. For this reason, the Insurance Contracts Act 1984 (Cth) s 65 prevents an insurer, in the exercise of its rights of subrogation, from claiming contribution against an uninsured third party who has a family relationship with the insured.170 [page 842]

Amount of contribution recoverable 29.36 The contribution legislation provides that the amount of contribution which may be recovered by D1 from D2 is ‘such as may be found by the court to be just and equitable having regard to the extent of [D2’s] responsibility for the damage’;171 it may take the form of a complete exemption of D2, or of D2 providing complete indemnity to D1. This provision grants to a trial judge a very wide discretion, one the exercise of which should be disturbed on appeal only in exceptional circumstances.172 In assessing the relative share of responsibility of two or more defendants, while all the circumstances must be taken into account, the two principal factors are (a) the relative causal potency of each defendant’s acts, and (b), where relevant, the degree to which each of them departed from the standard of conduct required by the particular tort of which each is guilty.

29.37 If each defendant has committed an act of negligence, the proportion of the total damages which each must pay depends upon the extent to which each fell below the standard of care expected of the reasonable person.173 It has been said174 that if one defendant is liable as the plaintiff’s employer and

the other is liable by reason of the breach of occupancy duties to the plaintiff, the former owes a ‘higher duty’ than the latter, and should therefore shoulder a greater proportion of the responsibility. However, with the absorption of separate occupancy duties into the general principles of negligence (see 7.37), these views no longer hold true.175

29.38 Where one defendant is ‘strictly’ liable to the plaintiff, by reason (say) of the breach of a statutory duty, while the other defendant is liable in negligence, it naturally becomes more difficult to judge the comparative degrees to which each has departed from different standards. In consequence, much greater weight is placed upon the relative causative potency of each defendant’s acts or omissions.176 And, when both defendants are strictly liable, so that questions of degrees of departure from a certain standard of conduct are irrelevant, the virtually exclusive determinant of their respective share of responsibility is the causative effect of the conduct of each.177

29.39 In those circumstances where D1 is a joint tortfeasor solely by reason of being vicariously liable for the acts of D2 it appears that, in the absence of countervailing [page 843] legislative provision, D1 is entitled to a complete indemnity from D2.178 This was the result of the decision of the House of Lords in Lister v Romford Ice & Cold Storage Co Ltd.179 D2 had injured P in a motor accident in the course of D2’s employment with D1. On P being paid his damages by D1, its insurers, exercising their right of subrogation, succeeded in recovering a full indemnity from D2. That decision was arrived at by a bare majority of the House, the two of their Lordships in the minority being prepared to imply into the contract of employment between D1 and D2 a term that D1 would keep D2 insured against such liability. Of the majority, two based their decision in favour of the right of indemnity on an implied term in the contract of employment, while the other one based his decision on the terms of the contribution legislation. Despite the consequent uncertainty as to the true ratio of Lister’s case, subsequent decisions have accepted as correct the right to claim an indemnity, in these circumstances, under the statute.180

29.40 The decision in Lister’s case is clearly unsatisfactory, both in shifting a loss from a good to a bad distributor of that loss and in being likely to cause industrial unrest.181 The effect of the decision has been abrogated by legislation in New South Wales, South Australia and the Northern Territory,182 recommended for abrogation by legislation in Queensland183 and has been substantially restricted by both the Insurance Contracts Act 1984 (Cth) s 66, which abolishes the right of an insurer to be subrogated to the claims of an employer against an employee,184 and by the scheme of compulsory third party motor vehicle insurance for personal injury and death throughout Australia, which requires an employer to insure against any liability incurred by its employees in the use of the employer’s motor vehicles.185 In England, the same effect as the federal legislation has been achieved by agreement among insurers,186 while in New Zealand, although an employer, or its insurer, still has the right to claim an indemnity from the employee, that right has only rarely been exercised.187 Even in those cases where Lister’s case might still be applicable (for example, when the employer is a governmental department or instrumentality which does not carry insurance), it is limited to circumstances where the employer’s responsibility for the [page 844] damage rests solely on its being vicariously liable. An employer who is also partly responsible for the damage — such as by the breach of an independent and nondelegable (see 26.26ff) duty owed to the injured party — must bear a due proportion of the loss.188 Where the employer has instigated the activity which resulted in the plaintiff’s loss, the employee may be entitled to a complete indemnity.189

29.41 If there is a limit on the amount for which a particular defendant could be liable to the plaintiff — whether by prior agreement between the parties or by force of statutory provision — that limitation is applied (if necessary) only after that defendant’s proportion of responsibility has been determined.190 If the plaintiff has been guilty of contributory negligence, the method of assessing each party’s liability is taken in two stages. First, the

court must compare the plaintiff’s responsibility for the damage with that of all the defendants considered as a group, and reduce the damages otherwise claimable by the plaintiff by the proportion thus arrived at. Secondly, a comparison is to be made between the various defendants as to their respective shares of responsibility inter se, in order to arrive at the proportion of the (reduced) amount which each must pay.191

Proportionate liability 29.42

The preceding discussion concerning contribution between tortfeasors is premised on the assumption that the various defendants are each liable for the whole of the loss suffered by the plaintiff. This is historically the case with respect to joint tortfeasors and several concurrent tortfeasors, and remains true in relation to actions for personal injury or death. The tortfeasors, in these circumstances, are said to be under a solidary liability. However, in relation to actions for property damage and for purely economic loss caused by negligence, disquiet was for some time felt at the application of solidary liability. It was said that such liability is unduly protective of plaintiffs, in throwing the burden of the insolvency of any one or more of the defendants onto the remaining defendants. It was also said that solidary liability is unduly harsh on defendants, in possibly imposing the full extent of the plaintiff’s loss onto one (solvent and insured) defendant who might have played only a minor part in causing the loss.192 These perceived difficulties were largely overcome in the building industry, by the enactment of uniform legislation in all states and territories, other than Queensland and Western Australia, providing that any person involved in the design, construction [page 845] or inspection of any building work who was sued in respect thereof would be liable in damages only to the extent of that person’s individual responsibility for the whole of the loss or damage.193 Subsequently, more extensive reforms were introduced throughout

Australia, by amendments both in the federal sphere,194 and in each of the states and territories.195 The legislation is uniform in being limited to claims for purely economic loss or property damage — thereby excluding a claim for damages arising from personal injury or death — and generally196 applies if there are two or more defendants to an action for ‘damages (whether in tort, under contract or otherwise) arising from a failure to take reasonable care’ or to an action for damages resulting from misleading or deceptive conduct in breach of the Australian Consumer Law s 18.197 While there is no doubt that the legislation applies to claims in negligence, it is not clear whether a claim for damages arising from the breach of a strict contractual duty comes within this form of words, if it can be proved that the defendant in fact failed to take reasonable care. The legislation in Queensland and South Australia makes it clear that it is limited to claims for breach of contract only when the contractual duty is concurrent and co-extensive with that imposed by the law of torts.198 If the plaintiff’s claim comes within the above provisions, the legislation goes on generally199 to provide that all of those ‘whose acts or omissions causes, independently of each other or jointly, the damage or loss’ claimed are to be regarded as concurrent wrongdoers.200 The legislation does not, regrettably, make it clear whether a person may be regarded as a concurrent wrongdoer merely if there is a causal link between that person’s conduct and the damage or loss claimed, or whether each potential concurrent wrongdoer must be legally liable to the plaintiff.201 It is, however, arguable that this ambiguity might be resolved by a redrafting of the legislation. It might, for instance, be confined to those circumstances where liability arises only from (a) a breach of a tortious duty of care, or from a breach of a contractual obligation which is concurrent and co-extensive with such a tortious duty, or (b) a breach of the [page 846] statutory prohibition on misleading conduct.202 In such a case, the only concurrent wrongdoers, for the purpose of the legislation, would be those who were in breach of any of those respective obligations. Among the concurrent wrongdoers, the liability of each is limited to an

amount reflecting that proportion of the loss or damage claimed which the court considers just, having regard to the extent of each defendant’s responsibility for the damage.203 In arriving at the amount payable by each defendant, the court must exclude any proportion of the damage attributable to the plaintiff’s contributory negligence,204 but, in most jurisdictions, may have regard to the comparative responsibility of any other concurrent wrongdoer, whether or not he or she is a party to the proceedings.205 However, in South Australia, Tasmania and Western Australia the court must consider any concurrent wrongdoers, even if they are not parties to the litigation,206 whereas in Victoria the court must not have regard to the comparative responsibility of any other person who is not a party to the proceedings unless the reason for not being a party is that the person has ceased to exist.207 Once judgment has been given against a defendant, he or she cannot be required to contribute to any damages or contribution recovered against another wrongdoer, or indemnify another wrongdoer.208 The legislation in Queensland prohibits the parties to litigation involving proportionate liability from contracting out of the legislative scheme,209 while that in New South Wales, Tasmania and Western Australia expressly permits contracting out,210 and the other examples of the legislation say nothing one way or the other on that issue. In view of the fact that the legislation was introduced in order to protect defendants from the perceived injustice of solidary liability, it is surprising that the legislation in three jurisdictions permits a plaintiff with sufficient bargaining power to demand that a party with whom the plaintiff deals must accept solidary liability, and the concomitant possibility of being responsible for the whole of any loss which the plaintiff may suffer, regardless of the extent of that party’s responsibility for the loss. It would appear that the Queensland provision is more in keeping with the overall purpose of this legislative scheme. The lack of uniformity in some aspects of the legislation and the ambiguity in some of the provisions led the Standing Committee of Attorneys-General to consider what changes might be made to achieve clarity and national uniformity, but no conclusions had been reached by that body at the time of going to press. _______________

1.

Hogg, Monahan and Wright, Liability of the Crown, 4th ed, 2011; Kneebone, Tort Liability of Public Authorities, 1998.

2.

Judiciary Act 1903 (Cth) s 64.

3.

Crown Proceedings Act 1988 (NSW); Crown Proceedings Act 1980 (Qld); Crown Proceedings Act 1992 (SA); Crown Proceedings Act 1993 (Tas); Crown Proceedings Act 1958 (Vic); Crown Suits Act 1947 (WA).

4.

Court Procedures Act 2004 (ACT); Crown Proceedings Act 1993 (NT).

5.

Crown Proceedings Act 1950 (NZ).

6.

ACT s 20; NSW s 3; NT s 4(1); SA s 4(1); Tas s 4(1); NZ s 2(2).

7.

ACT s 20; NSW s 3; NT s 4(1); Qld s 7; SA s 4(1); Tas s 4(1); Vic s 23(3).

8.

Skinner v Commr for Railways (1937) 37 SR (NSW) 261 at 273 per Jordan CJ.

9.

Cth s 64; ACT s 21; NSW s 5; NT s 5(1); Qld s 9(2); SA s 5(1); Tas s 5(1); WA s 5; and see Western Australia v Bond Corp Holdings Ltd (1991) 5 WAR 40 (FC).

10.

Vic s 23(1)(b); NZ s 6(1)(a).

11.

The Crown in right of New South Wales, South Australia and New Zealand is vicariously liable for the tortious acts of all public officials: see 26.57 at fn 273.

12.

Referred to in fn 9 above.

13.

Vic s 23(1)(b), NZ s 6(1)(a); Hall v Whatmore [1961] VR 225 at 225 per Herring CJ and Dean J, at 229 per Hudson J (FC). On the limitations which this form of words may impose on litigants, see Anderson, ‘“Grave Injustice”, “Despotic Privilege”: the Insecure Foundations of Crown Liability for Torts in New Zealand’ (2009) 12 Otago Law Rev 1.

14.

(1971) 126 CLR 61.

15.

See the Factories, Shops and Industries Act 1962 (NSW) s 6A (inserted in 1983).

16.

Maguire v Simpson (1977) 139 CLR 362 at 385–6; 18 ALR 469 at 485–6 per Gibbs J, at 401; 489 per Mason J; Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 264–6; 66 ALR 412 at 416–17.

17.

Shaw Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344 (the exception was found not to be applicable on the facts of that case: see Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 251–2 per Dixon J); and see Mulcahy v Ministry of Defence [1996] QB 732; 2 All ER 758 (CA).

18.

(1982) 150 CLR 113; 40 ALR 193; and see Commonwealth v Jenner (1989) 9 MVR 387 (NSWCA).

19.

150 CLR at 119; 40 ALR at 197 per Gibbs CJ, at 125; 201 per Stephen, Mason, Aickin and Wilson JJ, at 136; 210 per Murphy J. See also Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321.

20.

Buckingham v Hughes Helicopters Inc [1982] 2 NZLR 738; Littrell v United States of America (No 2) [1994] 4 All ER 203 (CA); Governor of Pitcairn v Sutton [1995] 1 NZLR 426 (CA).

21.

Reef Shipping Co Ltd v The Ship ‘Fua Kavenga’ [1987] 1 NZLR 550, following The Philippine Admiral [1977] AC 373; [1976] 1 All ER 78 (PC).

22.

Marine Steel Ltd v Government of the Marshall Islands [1981] 2 NZLR 1 at 6 per Barker J; Buckingham v Hughes Helicopters Inc [1982] 2 NZLR 738 at 739 per Hardie Boys J; Reef

Shipping Co Ltd v The Ship ‘Fua Kavenga’ [1987] 1 NZLR 550 at 569 per Smellie J. 23.

Marine Steel Ltd case, fn 22 above, holding that the government of a United Nations Trust Territory is not a sovereign state; cf Duff Development Co v Kelantan Government [1924] AC 797 (HL).

24.

But see Holland v Lampen-Wolff [2000] 3 All ER 833 (HL) (common law immunity still available, despite the enactment of the State Immunity Act 1978 (UK) in terms similar to the Commonwealth legislation).

25.

Defined in s 3(1) and (3). The Act also applies to a person (such as an ambassador) or a corporation acting as an agent or instrumentality of the state: s 22 and Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623 at 629 per Cole J, but does not apply to a separate entity of a foreign state, as defined in s 3; for a discussion of the meaning of that phrase, see PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2011) 192 FCR 393; 277 ALR 67 (FC) (an appeal to the High Court was heard on 8 May 2012, but the court reserved its decision: [2012] HCA Trans 101).

26.

For an example of the application of s 9, see Victoria Aircraft Leasing Ltd v United States (2005) 12 VR 340 (CA).

27.

As to what constitutes submission, see, eg, Robinson v Kuwait Liaison Office (1997) 145 ALR 68 (IR Ct).

28.

Diplomatic Privileges and Immunities Act 1967 (Cth); Consular Privileges and Immunities Act 1972 (Cth).

29.

Diplomatic Privileges and Immunities Act 1968 (NZ); Consular Privileges and Immunities Act 1971 (NZ).

30.

Vienna Convention on Diplomatic Relations, Art 31.

31.

Vienna Convention on Consular Relations, Art 43. The protection extends to honorary consuls, in relation to acts performed in the capacity: Kiraly v Richards (1993) 113 FLR 348 (WASC).

32.

Vienna Convention on Diplomatic Relations, Art 32; Vienna Convention on Consular Relations, Art 45.

33.

Fair Work (Registered Organisations) Act 2009 (Cth) s 27.

34.

See Creighton and Stewart, Labour Law, 5th ed, 2010, [20.23].

35.

Fair Work Act 2009 (Cth) Pt 3-3 Div 2.

36.

The circumstances in which a strike or lockout is unlawful are specified in the Employment Relations Act 2000 (NZ) s 86.

37.

Employment Relations Act 2000 (NZ) s 99.

38.

See, in Australia, the various Associations Incorporation Acts (ACT, 1991; NSW, 2009; NT, 2003; Qld, 1981; SA, 1985; Tas, 1964; Vic, 1981; WA, 1987) and the Incorporated Societies Act 1908 (NZ).

39.

Such an association ceases to exist once the membership falls below two: Hanchett-Stamford v Attorney- General [2009] Ch 173; [2008] 4 All ER 323.

40.

Hall v Leyshon (1895) 6 QLJ 232 (FC); Cother v John Fairfax and Sons Pty Ltd (1947) 64 WN (NSW) 154.

41.

Cf Cother v John Fairfax and Sons Pty Ltd, fn 40 above.

42.

Artistic Upholstery Ltd v Art Forma (Furniture) Ltd [1999] 4 All ER 277.

43.

London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 (HL); City of Gosnells v Roberts (1994) 85 LGERA 214 (WAFC), noted by Keeler (1995) 3 TLJ 7; Trustees of the Roman Catholic Church for the Diocese of Sydney v Ellis (2007) 70 NSWLR 565 (CA).

44.

Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 (CA).

45.

Smith v Yarnold [1969] 2 NSWR 410 (CA); cf Robertson v Ridley [1989] 2 All ER 474 (CA); Hrybynyuk v Mazur (2004) Aust Torts Reports 81-774 (NSWCA) in both of which office-bearers were held not to be liable to a fellow member.

46.

For references to the specific rules, see Cairns, Australian Civil Procedure, 9th ed, 2011, 9.300 and the New Zealand High Court Rules, r 78.

47.

Clark v University of Melbourne [1978] VR 457 at 475 per Kaye J (rev’d in part on another issue: [1979] VR 66 (FC)).

48.

Mercantile Marine Service Assn v Toms [1916] 2 KB 243 (CA).

49.

A-G (Vic) v City of Brighton [1964] VR 59.

50.

The one case in which this rule of court has been successfully availed of in a tort action is Campbell v Thompson [1953] 1 QB 445; 1 All ER 831, a case of occupiers’ liability; it would seem, however, that only the office-bearers of the association, rather than the membership as a whole, are to be regarded as the occupiers for this purpose: Smith v Yarnold [1969] 2 NSWR 410 (CA).

51.

See the various Partnership Acts: ACT 1963 ss 14 and 16; NSW 1892 ss 10 and 12; NT 1997 ss 14 and 16; Qld 1891 ss 13 and 15; SA 1891 ss 10 and 12; Tas 1891 ss 15 and 17; Vic 1958 ss 14 and 16; WA 1895 ss 17 and 19; NZ 1908 ss 13 and 15 and the discussion thereon in Fletcher, The Law of Partnership in Australia, 9th ed, 2007, 6.60; Webb and Molloy, Law of Partnership, 6th ed, 1996, [66].

52.

Which may include conduct which is intentionally wrongful: Proceedings Commr v Ali Hatem [1999] 1 NZLR 305 (CA) (sexual harassment); Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; 1 All ER 97 (HL) (fraud).

53.

Meekins v Henson [1964] 1 QB 472; [1962] 1 All ER 899.

54.

See, eg, Blackstone, Commentaries, 9th ed, 1783, Vol 1, p 442.

55.

Family Law Act 1975 (Cth) s 119.

56.

Property (Relationships) Act 1976 (NZ) s 51.

57.

Married Persons Property Act 1986 s 3(1) (ACT); Married Persons (Equality of Status) Act 1996 s 5 (NSW); Married Persons (Equality of Status) Act 1989 s 3(1) (NT); Law Reform Act 1995 s 12 (Qld); Law of Property Act 1936 s 92 (SA); Married Women’s Property Act 1935 s 3(2) (Tas); Marriage Act 1958 s 156 (Vic); Law Reform (Miscellaneous Provisions) Act 1941 s 3 (WA); Property (Relationships) Act 1976 s 49 (NZ).

58.

Buckley v Smith Transport Ltd [1946] 4 DLR 721 (Ont CA), as explained in Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 at 67 per Wolff SPJ; Roberts v Ramsbottom [1980] 1 All ER 7 at 15 per Neill J (negligence); Morriss v Marsden [1952] 1 All ER 925 at 927 per Stable J (trespass).

59.

Morriss v Marsden [1952] 1 All ER 925; Donaghy v Brennan (1901) 19 NZLR 289 (CA), as explained in Beals v Hayward [1960] NZLR 131 at 138 per McGregor J; Lawson v Wellesley Hospital (1975) 61 DLR (3d) 445 (Ont CA) (aff’d (1978) 76 DLR (3d) 688 (SCC)).

60.

Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56; Carrier v Bonham [2002] 1 Qd R 474 (CA).

61.

For a trenchant criticism of the current state of the law and proposals for change, see Goudkamp, ‘Insanity as a Tort Defence’ (2011) 31 OJLS 727.

62.

Age of Majority Act 1974 s 5 (ACT); Minors (Property and Contracts) Act 1970 s 9 (NSW); Age of Majority Act 1974 s 4 (NT); Law Reform Act 1995 s 17 (Qld); Age of Majority (Reduction) Act 1971 s 3 (SA); Age of Majority Act 1973 s 3 (Tas); Age of Majority Act 1977 s 3 (Vic); Age of Majority Act 1972 s 5 (WA).

63.

Age of Majority Act 1970 (NZ) s 4.

64.

See Cairns, Australian Civil Procedure, 9th ed, 2011, 9.580 and the New Zealand High Court Rules, r 83.

65.

For a recent example, see Zanner v Zanner (2010) 79 NSWLR 702 (CA) (eleven-year-old boy held to be in breach of his duty of care in driving a motor vehicle).

66.

Ellis v D’Angelo 253 P 2d 675 (Calif, 1953) (four-year-old liable for battery); Hart v A-G (Tas) (SC(Tas), Burbury CJ, 29 May 1959, unreported) (six-year-old liable in battery); O’Brien v McNamee [1953] IR 86 (seven-year-old liable in trespass to land); cf Hogan v Gill (1992) Aust Torts Reports 81-182 (Qld SC) (six-year-old not liable for battery by firing a loaded gun, as he did not know that the gun was loaded); Tillander v Gosselin (1966) 60 DLR (2d) 18 (Ont HC) (three-year-old regarded as being incapable of intending the alleged act).

67.

For the effect, in Australia, of one party’s minority on his or her contractual liability, see Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 17.2ff. In New Zealand, see the Minors’ Contracts Act 1969, for the purposes of which a minor is one who is under the age of 18 and unmarried.

68.

Jennings v Rundall (1799) 8 TR 335 at 336; 101 ER 1419 at 1420 per Lord Kenyon; Nelson v Stocker (1859) 4 De G & J 458 at 465; 45 ER 178 at 181 per Turner LJ.

69.

See, in particular, Nelson Guarantee Corp v Farrell [1955] NZLR 405 and generally Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed, 2012, 17.39, 17.40.

70.

Minors (Property and Contracts) Act 1970 (NSW) s 48.

71.

Bankruptcy Act 1966 (Cth) s 82(2).

72.

Re Southern Cross Coaches Ltd (1932) 49 WN (NSW) 230; Re Great Orme Tramways Co (1934) 50 TLR 450.

73.

Insolvency Act 2006 (NZ) s 232.

74.

Bankruptcy Act 1966 (Cth) s 153(1); Insolvency Act 2006 (NZ) s 304.

75.

Bankruptcy Act 1966 (Cth) s 117; Law Reform Act 1936 (NZ) s 9, discussed in Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd [2008] 3 NZLR 685.

76.

Bankruptcy Act 1966 (Cth) s 60(2) and (4).

77.

See generally Faulkner v Bluett (1981) 52 FLR 115; Bullock v Goodluck (1983) 48 ALR 217 (Tas SC).

78.

Ord v Upton [2000] Ch 352; 1 All ER 193 (CA).

79.

Official Assignee v Dowling [1964] NZLR 578 at 583 per McGregor J.

80.

Timmings v Treadgold [1923] NZLR 73.

81.

New Zealand Loan & Mercantile Agency Co Ltd v Mitchell (1906) 26 NZLR 433; Poulton v Commonwealth (1953) 89 CLR 540 at 602. Maintenance and champerty are discussed in 25.33ff.

82.

Re Kenneth Wright Distributors Pty Ltd; W J Vine Pty Ltd v Hall [1973] VR 161.

83.

Dawson v Great Northern & City Railway Co [1905] 1 KB 260 at 271 per Stirling LJ (CA): ‘… an assignment of property is valid, even although that property may be incapable of being recovered without litigation’. See further, Marshall, The Assignment of Choses in Action, 1950, pp 62–5.

84.

First City Corp Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 at 757 per Gault J (aff’d on different grounds [1990] 3 NZLR 265 (CA); [1993] AC 295; 3 All ER 626 (PC)); Monk v ANZ Banking Group Ltd (1994) 34 NSWLR 148 at 152 per Cohen J; SA Management Corp v Sheahan (1995) 16 ACSR 45 at 57–8 per Debelle J (SASC); National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 at 537–9 per Lindgren J (Fed Ct); Beatty v Brashs Pty Ltd [1998] 2 VR 201.

85.

King v Victoria Insurance Co [1896] AC 250; Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101; [1964] 1 All ER 216.

86.

Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; 22 ALR 439; and see Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216.

87.

See the comments in Dugan’s case (1978) 142 CLR 583 at 603; 22 ALR 439 at 454 per Jacobs J, with whom Gibbs, Stephen and Mason JJ agreed on this point.

88.

Public Trustee Act 1978 (Qld) s 95 (applies to those sentenced for a term of three years or more).

89.

For example, conversion of a cheque: Milera v Wilson (1980) 23 SASR 485.

90.

Fitzpatrick v Jackson [1989] 2 Qd R 542 (FC).

91.

Felons (Civil Proceedings) Act 1981 (NSW) s 4 (applies only to those convicted of a felony); (Jol v New South Wales (1998) 45 NSWLR 283 (CA); Prisoners (Removal of Civil Disabilities) Act 1991 (Tas) s 4 (applies to those sentenced for a term of more than two years); (Smith v Coleman (1996) 5 Tas R 469).

92.

Criminal Law Consolidation Act 1935 s 329 (SA); Criminal Code Act 1983 s 435A (NT).

93.

Crimes Act 1958 (Vic) s 549, repealed by Crimes (Amendment) Act 1973; Prisons Act 1908 (NZ) s 54 repealed by Penal Institutions Act 1954.

94.

Criminal Code s 683 (WA); Crimes (Amendment) Act 1983 (ACT), which abolished the death penalty.

95.

WA: see Criminal Code s 3; ACT: Crimes Act 1900 s 9.

96.

New South Wales v Corby (2010) 76 NSWLR 439 (CA).

97.

Civil Liability Act 2002 (NSW) Pt 2A Div 6, Corrective Services Act 2006 (Qld) Ch 6, Pt 12B; Div 6; Corrections Act 1986 (Vic) Pt 9C.

98.

NSW: s 26K(1); Qld s 319S(1); Vic s 104Q.

99.

For a trenchant criticism of the New South Wales provisions, see Watson, ‘Civil Claims and Civil Death: “Offender Damages” and the Civil Liability Act 2002 (NSW)’ (2008) 16 TLJ 81.

100. See generally Williams, Joint Torts and Contributory Negligence, 1951. 101. Discussed in 29.31ff. 102. The Koursk [1924] P 140 at 152 per Bankes LJ (CA).

103. See, eg, XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639 (trespass to land directed by one party, carried out by another, resulted in both being jointly liable); cf Louis Vuitton Malletier SA v Toea Pty Ltd (2006) 237 ALR 118 at [152] per Dowsett J (Fed Ct) (operator of market and stallholders therein held not to be joint tortfeasors). 104. Schumann v Abbott [1961] SASR 149; see also Myer Stores Ltd v Soo [1991] 2 VR 597 (App Div). 105. See 29.14. 106. The precise formulation of the circumstances in which a company and one of its directors may be joint tortfeasors has yet to be established. For a recent and wide-ranging discussion, see Keller v LED Technologies Pty Ltd (2010) 185 FCR 449; 268 ALR 613 Emmett J at [83], Besanko J at [291], Jessup J at [404]–[406]. 107. Brooke v Bool [1928] 2 KB 578. 108. Dougherty v Chandler (1946) 46 SR (NSW) 370 (FC); Mihaka v Wellington Publishing Co (1972) Ltd [1975] 1 NZLR 10; see generally 18.19. 109. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1. 110. See, eg, Nilon v Bezzina [1988] 2 Qd R 420 at 424 per McPherson J (FC). 111. Cf Chapman v Hearse (1961) 106 CLR 112; 9.14. 112. Thomas Borthwick & Sons (A’asia) Ltd v Samco Meats Pty Ltd [1995] 2 VR 474 (CA). 113. Costello v O’Donnell (1882) 1 NZLR (CA) 105. 114. Shepherd v SJ Banks & Son Pty Ltd (1987) 45 SASR 437; Suosaari v Steinhardt [1989] 2 Qd R 477 (FC); see also TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 (CA); Sparks v Van Den Ham [2003] WASCA 143. 115. See Dingle v Associated Newspapers Ltd [1961] 2 QB 162 at 188–9; 1 All ER 897 at 916 per Devlin LJ (CA) (the point was not discussed on appeal to the House of Lords [1964] AC 371; [1962] 2 All ER 737). 116. Little v Suncorp Insurance & Finance (No 2) [1994] 2 Qd R 273; see also Lauren v Jolly [1996] 1 VR 189 (App Div) (liability of D1 held to be alternative to, rather than concurrent with, that of D2). 117. See Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 530; 59 ALR 722 at 726–7 and 9.15. 118. Brinsmead v Harrison (1872) LR 7 CP 547. 119. The Koursk [1924] P 140 (CA). 120. Duck v Mayeu [1892] 2 QB 511 (CA); this rule still applies in England: Bryanston Finance Ltd v de Vries [1975] QB 703 at 732; 2 All ER 609 at 626 per Lord Diplock (CA). 121. (1996) 186 CLR 574; 141 ALR 1. 122. The Wrongs Act 1954 (Tas) s 3(3) expressly provides for this consequence. 123. De Reus v Gray (2003) 9 VR 432 (CA). 124. Brooks v New Zealand Guardian Trust Co Ltd [1994] 2 NZLR 134 (aff’d on different grounds [1995] 1 WLR 96 (PC)). 125. Robinson v Tait [2002] 2 NZLR 30 at [62] per Keith, Blanchard and McGrath JJ, at [98] per Tipping J; contra, Thomas J at [27].

126. As was held to be the case in Jameson v Central Electricity Generating Board [2000] 1 AC 455; [1999] 1 All ER 193. 127. As was the case in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616; Allison v KPMG Peat Marwick [2000] 1 NZLR 560 (CA) and Heaton v AXA Equity & Law Life Assurance Society plc [2002] 2 AC 329; 2 All ER 961. 128. See generally Broadfoot, ‘Multiple Defendant Litigation and the Rule Against Double Recovery’ (2002) 10 TLJ 255. 129. There is an exception to this general rule when the defendants’ liability is proportionate and not solidary: see 29.42. 130. Dougherty v Chandler (1946) 46 SR (NSW) 370 at 375 per Jordan CJ (FC); Spiers v Caledonian Collieries Ltd (1956) 57 SR (NSW) 483 (FC) (aff’d (1957) 97 CLR 202); this principle does not, however, apply to a tort, such as conspiracy, which is capable of being committed only by two or more persons: McKernan v Fraser (1931) 46 CLR 343 at 407 per Evatt J. 131. Arneil v Paterson [1931] AC 560 (HL). 132. See Cook v Lewis [1952] 1 DLR 1 (SCC). 133. Eyre v New Zealand Press Association Ltd [1968] NZLR 736 at 745 per McGregor J. 134. Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(b); Law Reform Act 1995 (Qld) s 6(b); Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7(1)(b); Civil Law (Wrongs) Act 2002 (ACT) s 20(2)(a); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 12(3)(a); Law Reform Act 1936 (NZ) s 17(1)(b). The Law Reform (Contributory Negligence and Apportionment of Liability) Act 2002 (SA) s 12 and the Wrongs Act 1954 (Tas) s 3(1)(b) are to broadly similar effect, but worded quite differently, while the Wrongs Act 1958 (Vic) s 24AB deals only with the award of costs in subsequent actions for the same damage. 135. Newcrest Mining Ltd v Thornton (2012) 293 ALR 493, agreeing with the earlier decision of the NSWCA in Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687. 136. Ibid at [30] per French CJ, and see Heydon J at[35]–[41], Bell J at [125]. 137. Civil Law (Wrongs) Act 2002 (ACT) Pt 2.5; Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Pt 3; Law Reform (Miscellaneous Provisions) Act 1956 (NT) Pt IV; Law Reform Act 1995 (Qld) Pt 3; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA); Wrongs Act 1954 (Tas) s 3; Wrongs Act 1958 (Vic) Pt IV; Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) Pt 3; Law Reform Act 1936 (NZ) Pt 5. 138. The right to contribution extends to any costs recoverable by the plaintiff: James Hardie & Coy Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679 (CA). 139. Fletcher v National Mutual Life Nominees Ltd [1990] 1 NZLR 97 at 103 per Henry J. 140. Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 at 11; 154 ALR 534 at 544 (FC); but see the limitations to this general principle referred to in fn 143. 141. See, eg, Glenmont Investments Pty Ltd v O’Loughlin (No 3) (2001) 79 SASR 288 at [12] per Doyle CJ (FC); this limitation does not apply if D1’s obligation in contract is concurrent and coextensive with an obligation in negligence: see fns 146, 147 below. 142. Erwin v Iveco Trucks Australia Ltd (2010) 267 ALR 752 (NSWCA). The plaintiff may, however, choose to sue both defendants in the one action, in which case their respective shares of

responsibility for the plaintiff’s injury may be assessed: see Adastra Aviation Ltd v Airparts (NZ) Ltd [1964] NZLR 393; Coppin v Tobler Bros Canberra Marine Centre Pty Ltd [1980] 1 NSWLR 183. 143. See Burke v LFOT Pty Ltd (2002) 209 CLR 282; 187 ALR 612. 144. See Glenmont Investments Pty Ltd v O’Loughlin (No 3) (2001) 79 SASR 288 at [18] per Doyle CJ (FC). 145. See, in this context, Macpherson & Kelley v Kevin J Prunty & Associates [1983] 1 VR 573 (FC); Morton v Douglas Homes Ltd [1984] 2 NZLR 548 at 587–9 per Hardie Boys J. 146. ACT s 19, definition of ‘wrong’; Qld s 5, definition of ‘wrong’; Tas s 2, definition of ‘wrongful act’. 147. AWA Ltd v Daniels (1992) 7 ACSR 759 at 856–7 per Rogers CJ Com D (NSWSC) (aff’d on different grounds (1995) 37 NSWLR 438 (CA)); Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 at 548–9 (Fed Ct, FC); Duke Group Ltd v Pilmer (No 2) (2000) 78 SASR 216 at [8] (FC). 148. See Sydlow Pty Ltd v TG Kotselas Pty Ltd (1996) 65 FCR 234 at 244–5; 144 ALR 159 at 168–9 per Tamberlin J. 149. See Mathieson v Workers’ Compensation Board [1990] 2 Qd R 57 (FC). 150. SA s 4(1); no doubt a liability arising under statute includes one for a breach of the Australian Consumer Law s 18. 151. Vic s 23A(1). A claim for contribution may be made by a defendant who is alleged to have engaged in misleading or deceptive conduct, contrary to the Australian Consumer Law s 18: Pricom Pty Ltd v Sgarioto (1994) ATPR 41-365 (Vic SC); Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 at 13; 154 ALR 534 at 546 (FC). 152. ACT s 21(1); NSW s 5(1)(c); NT s 12(4); Qld s 6(c); SA s 6(1); Vic s 23B(1); WA s 7(1)(c); NZ s 17(1)(c). 153. Bitumen & Oil Refineries (Australia) Ltd v Commr for Government Transport (1955) 92 CLR 200. 154. Baylis v Waugh [1962] NZLR 44; Bakker v Joppich (1980) 25 SASR 468; Ahrens Engineering Pty Ltd v Leroy Palmer & Assocs (2010) 106 SASR 160; Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651; 3 All ER 534 (CA); and see Re Securitibank Ltd [1986] 2 NZLR 280 at 287–8 per Barker J. 155. Bitumen & Oil Refineries (Australia) Ltd v Commr for Government Transport (1955) 92 CLR 200; Hunnerup v Goodyear Tyre & Rubber Co (Australia) Ltd (1974) 7 SASR 215 at 227–8 per Jacobs J; Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540 (CA). 156. Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651; 3 All ER 534 (CA); the amount of the settlement may be used as a basis for determining the amount of D2’s contribution (Bakker v Joppich (1980) 25 SASR 468 at 475 per Wells J), but there is no presumption in favour of D1 that the settlement was reasonable: Saccardo Constructions Pty Ltd v Gammon (1991) 56 SASR 552 (FC); and see the further proceedings in that case (1994) 63 SASR 333 (FC). 157. Tas s 3(1)(d); Vic s 23B(4). 158. See 29.25–29.26. In South Australia and Victoria, the ‘same damage’ may have been brought about by a breach of contract, contravention of a statute or breach of trust, as well as by a tort: see 29.32. For an example of tortfeasors held not to have caused the same damage, see

Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171. 159. Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387. 160. George Wimpey & Co Ltd v British Overseas Airways Corp [1955] AC 169; [1954] 3 All ER 661; Cyril Smith & Assocs Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181; see also Calderwood v Nominal Defendant [1970] NZLR 296 (CA) (defendant not obliged to make contribution if he or she has been sued, found liable and satisfied that judgment). 161. James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268. 162. Hart v Hall & Pickles Ltd [1969] 1 QB 405; [1968] 3 All ER 291 (CA); Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1 at 19 per Blackburn CJ; whether such a person is obliged to make contribution depends on whether he or she ‘would, if sued, have been liable’. 163. CSR Ltd v Page (2002) 37 MVR 376 (NSWCA). 164. Moore v WA Government Railways Commn (1990) 3 WAR 409; Clout Industrial Pty Ltd v Baiada Poultry Pty Ltd (2004) 61 NSWLR 111 (CA) (D2 liable for contribution, even though legislation enacted subsequent to the commission of the tort had abolished relevant rights of action against D2); cf Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136; 173 ALR 619 (D2 protected from liability by legislation enacted prior to the accrual of P’s cause of action). 165. Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; the effect of that decision is contained in the legislation in SA s 6(8)(d); Tas s 3(1)(c); Vic s 23B(3); NZ s 27(1)(c). 166. Harper v Gray & Walker [1985] 2 All ER 507; SA s 6(8)(b); Vic s 23B(3). 167. Amaca Pty Ltd v New South Wales (2003) 199 ALR 596 (HCA); Deloitte Touche Tohmatsu v Cridlands Pty Ltd (2003) 204 ALR 281 (Fed Ct). 168. Alex Kay Pty Ltd v Fife (1966) 9 FLR 246 (ACTSC). 169. This circumstance is expressly provided for in the contribution legislation; for references thereto, see fn 152 above, and for consideration thereof see Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 (CA). 170. Claims for contribution by an employer against an employee are also limited by a variety of statutory provisions, discussed in 29.40. 171. ACT s 21(2); NSW s 5(2); NT s 13; Qld s 7; SA s 6(5) and (7); Tas s 3(2); Vic s 24(2); NZ s 17(2). WA s 7(2) does not include the last phrase of this formula. 172. Jennings (AV) Construction Pty Ltd v Maumill (1956) 30 ALJ 100; Sinclair v William Arnott Pty Ltd (1963) 64 SR (NSW) 88 at 95–6 (FC); Ramco v Gan Soo Swee [1971] 3 All ER 320 at 327 per Lord Cross (PC). 173. Dare v Dobson [1960] SR (NSW) 474; McFarlane v Neshausen [1952] NZLR 292; Morton v Douglas Homes Ltd [1984] 2 NZLR 548 at 612 per Hardie Boys J; Covacevich v Thomson (1988) Aust Torts Reports 80-153 (Qld FC); Nikolic v Commonwealth Accommodation & Catering Services Ltd (1992) 106 FLR 413 (ACTSC); Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39 (FC); the issue is much the same as in determining the amount of reduction of damages to be suffered by a contributorily negligent plaintiff: Pantalone v Alaouie (1989) 18 NSWLR 119 at 140–1 per Giles J. 174. Sinclair v William Arnott Pty Ltd (1963) 64 SR (NSW) 88 at 96 (FC); Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1 at 24 per Blackburn CJ.

175. Hanson v Matthew Bros Contractors Ltd (1990) 55 SASR 183. 176. Jerred v Roddom Dent & Son Ltd [1948] 2 All ER 104; Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271; Sherras v Van der Maat [1989] 1 Qd R 114 at 117–18 per Thomas J; Keeffe v McLean-Carr (1993) Aust Torts Reports 81-224 at 62,281 per Olsson J (SASC). 177. Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 at 656 (CA); Fatur v IC Formwork Pty Ltd (2000) 155 FLR 70 at [48] per Miles CJ (ACTSC). 178. But this is generally the only circumstance in which an indemnity will be ordered: Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd (2001) 53 NSWLR 626 at [70] per Stein JA (CA). 179. [1957] AC 555; 1 All ER 125. 180. Harvey v RG O’Dell Ltd [1958] 2 QB 78; 1 All ER 657; Richardson v O’Neill [1959] NZLR 540; Voli v Inglewood Shire Council (1963) 110 CLR 74 at 100 per Windeyer J. 181. See the comments of Fox J in the ACT Supreme Court in Marrapodi v Smith-Roberts (unreported), noted in (1970) 44 ALJ 4, and of Lord Denning MR in Morris v Ford Motor Co Ltd [1973] QB 792 at 798; 2 All ER 1084 at 1088 (CA). 182. Employees Liability Act 1991 (NSW); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), s 6(9)(c); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 22A. These provisions do not protect an employee who is guilty of serious or wilful misconduct. 183. Queensland Law Reform Commission, Vicarious Liability (Report No 56, 2001), [5.1]–[5.8]. 184. The Act does not apply to compulsory third party motor vehicle insurance: s 9(1)(e). 185. See Commercial & General Insurance Co Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374 at 380–1; AR Griffiths & Sons Pty Ltd v Richards [2000] 1 Qd R 116 at 142 (CA); an application for special leave to appeal, designed to canvass the continued applicability in Australia of Lister’s case, was dismissed: FAI General Insurance Co Ltd v AR Griffiths & Sons Pty Ltd (1997) 71 ALJR 651. 186. See the Report of an Inter-Departmental Committee, noted in (1959) 22 MLR 652. 187. The last reported case in which the right was exercised was Richardson v O’Neill [1959] NZLR 540. In 1959 an Employees’ Indemnity Bill was introduced into the New Zealand Parliament, but not proceeded with: see Editorial (1959) 35 NZLJ 161. 188. Voli v Inglewood Shire Council (1963) 110 CLR 74 at 100 per Windeyer J; Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1 at 25–6 per Blackburn CJ. 189. Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729 at 744 per Mahon J. 190. Unsworth v Commr for Railways (1958) 101 CLR 73; Roads and Traffic Authority v Ryan (2005) 62 NSWLR 609 (CA); Wrongs Act 1958 (Vic) s 24(2A). As to the effect of of the Workers Compensation Act 1987 (NSW) s 151Z(2) on contribution proceedings, see Leonard v Smith (1992) 27 NSWLR 5; Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 (CA). 191. Barisic v Devenport [1978] 2 NSWLR 111 (CA); Andriolo v G & G Construction Pty Ltd (1989) Aust Torts Reports 80-235 (ACTSC); Commr of Main Roads v Hennessey (1996) 24 MVR 440 (WAFC); Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; Fitzgerald v Lane [1989] AC 328; [1988] 2 All ER 961 (HL); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7(2); Wrongs Act 1958 (Vic) s 24(2A). 192. See, eg, Inquiry into the Law of Joint and Several Liability, Report of Stage Two (1995), pp 11–

13; Rogers, ‘Fairness or Joint and Several Liability’ (2000) 8 TLJ 107; Tilbury, ‘Fairness Indeed? A Reply to Andrew Rogers’ (2000) 8 TLJ 113. 193. See Building Act 2004 (ACT) s 141; Development Act 1993 (SA) s 72. For an example of the application of these provisions, see Boral Resources (Vic) Pty Ltd v Robak Engineering & Construction Pty Ltd [1999] 2 VR 507 (CA). Similar provisions in the Environmental Planning and Assessment Act 1979 (NSW) s 109ZJ, Building Act 1993 (NT) s 155, Building Act 2000 (Tas) s 252 and Building Act 1993 (Vic) s 131 were repealed on the coming into force of the more widely applicable proportionate liability regime discussed below. 194. See Competition and Consumer Act 2010 (Cth) (‘CCA’) Pt VIA (ss 87CB–87CI); Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) Pt 2 Div 2 Subdiv GA (ss 12GP–12GW); Corporations Act 2001 (Cth) (‘CA’) Pt 7.10 Div 2A (ss 1041L–1041S). 195. Civil Law (Wrongs) Act 2002 (ACT) Chap 7A; Civil Liability Act 2002 (NSW) Pt 4; Proportionate Liability Act 2005 (NT); Civil Liability Act 2003 (Qld) Chap 2, Pt 2; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) Pt 3; Civil Liability Act 2002 (Tas) Pt 9A; Wrongs Act 1958 (Vic) Pt IVAA; Civil Liability Act 2002 (WA) Pt 1F (subsequent references are to the jurisdiction only). For an excellent review of the legislation, see McDonald, ‘Proportionate Liability in Australia: The Devil in the Detail’ (2005) 26 Aus Bar Rev 29. 196. The exceptions are Queensland and South Australia, discussed below. 197. CCA s 87CB(1); ASIC Act s 11GP(1); CA s 1041L(1); ACT s 107B(2); NSW s 34(1); NT s 4(2); Tas s 43A(1); Vic s 24AF(1); WA s 5AI(1). 198. Qld s 28(1); SA s 4(1). 199. The exceptions to the quoted phrase are Qld s 30(1) and SA s 3(1), definition of ‘wrongdoer’. 200. ACT s 107D; NSW s 34(2); NT s 6(1); Tas s 43A(2); Vic s 24AH(1); WA s 5AI(1); CCA s 87CB(3); ASIC Act s 12GP(3); CA s 1041L(3); see St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666; Metzke & Allen v Sali [2010] VSCA 267. 201. See, eg, Reinhold v NSW Lotteries Corp (No 2) [2008] NSWSC 187 at [28] per Barrett J. 202. As is currently the case in Qld and SA: see fn 199 above. 203. ACT s 107F(1); NSW s 35(1); NT s 13(1); Qld s 31(1); SA s 8(2); Tas s 43B(1); Vic s 24AI(1); WA s 5AK(1); CCA s 87CD(1); ASIC Act s 12GR(1); CA s 1041N(1) 204. ACT s 107F(2)(a); NSW s 36 (3)(a); NT s 13(2)(a); Qld s 32G; SA s 8(2)(b); Tas s 43B(3)(a); Vic s 24AN; WA s 5AK(3)(a); CCA s 87CD(3)(a); ASIC Act s 12GR(3)(a); CA s 1041N(3)(a). 205. ACT s 107F(2)(b); NSW s 36(3)(b); NT s 13(2)(b); Qld s 31(3); CCA s 87CD(3)(b); ASIC Act s 12GR(3)(b); CA s 1041N(3)(b). 206. SA s 8(2)(b); Tas s 43B(3)(b); WA s 5AK(3)(b). 207. Vic s 24AI(3). A person ceases to exist if he or she is dead or, if a corporation, has been wound up. 208. ACT s 107H; NSW 36; NT s 15; Qld s 32A; SA s 9(a); Tas s 43C; Vic s 24AJ; WA s 5AL; CCA s 87CF; ASIC Act s 12GT; CA s 1041P. 209. Qld s 7(3). 210. NSW s 3A(2); Tas s 3A(3); WA s 4A.

Index References are to paragraphs A Abatement of nuisance costs of abatement .… 6.26 overview .… 6.26, 14.53 trespass .… 6.26 Absolute privilege abuse of privilege .… 19.49 excessive publication .… 19.56 extraneous matter .… 19.55 joint publishers .… 19.57 knowledge of falsity .… 19.53–19.54 malicious or improper purpose .… 19.50–19.52 vicarious liability .… 19.57 judicial proceedings .… 19.23, 19.33, 19.36 communications .… 19.34 documents .… 19.34 Royal Commissions .… 19.33 scope of privilege .… 19.33, 19.34 tribunals .… 19.33 malicious or improper purpose .… 19.50 causative factor .… 19.51 incidental resentment .… 19.51 responses to attack .… 19.52 ministerial communications .… 19.35

overview .… 19.31 parliamentary proceedings .… 6.53, 19.23, 19.32, 19.40 ministerial communications .… 19.35 scope of protection .… 19.32 solicitor–client communications .… 19.36 Abuse of privilege see Absolute privilege; Qualified privilege Abuse of process see Misuse of process Accessorial liability inducing contract breach .… 21.4, 21.26 Accident compensation (NZ) amounts of compensation .… 12.48 benefits available .… 12.44, 12.47 common law claims .… 12.44 development of scheme .… 12.43 funding of scheme .… 12.44 overview .… 12.43, 16.5 personal injuries .… 12.45 adverse medical treatment .… 12.47 definition .… 12.45 gradual process, disease or infection .… 12.46 purpose of legislation .… 12.44 surviving dependants .… 12.49 trespass to person .… 2.5 visitors to New Zealand .… 12.47 Accord and satisfaction overview .… 28.46 Accountants duty of care .… 13.27, 13.28 reasonable reliance .… 13.28 Acquiescence defamation .… 19.71

Action on the case bailment .… 4.65 credit agreements .… 4.65 limits to interests .… 4.66 lost or destroyed goods .… 4.65 overview .… 4.65 scope of protection .… 4.66 Action for loss of services see Loss of services Agents defamation .… 19.28 employee or contractor .… 23.35, 26.12 holding by principal .… 26.13 deceit .… 23.35, 26.13 defamation .… 26.14 directors .… 26.15 motor vehicle drivers .… 26.16 imposition of liability .… 26.17 no-fault compensation schemes .… 26.18 property damage .… 26.19 rebuttable presumption .… 26.17 vicarious liability .… 23.35, 26.2, 26.12 deceit .… 23.35, 26.13 defamation .… 26.14 directors .… 26.15 employee or contractor .… 23.35, 26.12 malicious prosecution .… 25.4 misleading or deceptive conduct .… 23.37 motor vehicle drivers .… 26.16–26.19 negligent misstatement .… 23.36 Aggravated damages availability .… 27.7, 27.8, 27.9

defamation .… 19.81 false imprisonment .… 3.37 injured feelings .… 27.7, 27.8 overview .… 27.7, 27.10 personal injuries .… 27.9 trespass to land .… 5.19 Aircraft see also Civil aviation compensation trespass or nuisance .… 5.9 Airspace ordinary user concept .… 5.9 trespass to land .… 5.9 Animals cattle trespass see Cattle trespass dangerous animals see Scienter action dogs .… 15.19 contributory negligence .… 15.23 defences .… 15.22–15.25 nature of liability .… 15.20 persons liable .… 15.20 provocation .… 15.24 trespassers on land .… 15.25 type of damage .… 15.21 voluntary assumption of risk .… 15.24 negligence .… 7.62, 15.1, 15.11, 15.20 nuisance .… 15.1, 15.11, 15.20 overview .… 15.1 straying animals .… 7.56, 7.62, 15.4 abolition of rule .… 7.62 duty of care .… 7.62, 15.1 Architects duty of care .… 13.71, 13.72

Arrest detention of suspect .… 6.43 delay .… 6.44, 6.45 questioning .… 6.46 questioning without charge .… 6.44 substitute charges .… 6.46 force in arrest .… 6.40 confrontation arrest .… 6.40 fleeing offenders .… 6.41 fugitive arrest .… 6.40 lethal or dangerous force .… 6.41 manner of arrest .… 6.42 overview .… 6.35 reasonable cause .… 6.39 unlawful arrest .… 6.35 with warrant .… 6.36 without warrant .… 6.37 statutory powers .… 6.38 Assault act of defendant .… 3.16 ability to carry out threat .… 3.18 conditional threats .… 3.19 protective intervention .… 3.17 verbal threats .… 3.19 words .… 3.19 apprehension of contact .… 3.16, 3.18, 3.20 imminent physical violence .… 3.20 reasonable apprehension .… 3.18, 3.20 battery, distinction .… 1.5, 3.16 consent .… 3.7, 6.5 medical procedures .… 6.8

criminal law, and .… 3.15 defences .… 6.35 consent .… 6.5, 6.8 defence of another .… 6.17, 19.45 self-defence .… 6.15, 19.44 statutory authority .… 6.49 exemplary damages .… 27.12 intention .… 3.15, 3.18 overview .… 3.15 state of mind of plaintiff .… 3.20 apprehension of contact .… 3.16, 3.18, 3.20 use of term .… 3.16 vicarious liability .… 26.43 Assignment of cause of action maintenance and champerty .… 25.41, 27.41, 29.22 standing of assignee .… 29.22 Assumption of risk see Voluntary assumption of risk Auctioneers conversion .… 4.27, 4.28 Auditors duty of care .… 13.27, 13.28 reasonable reliance .… 13.28 liability .… 1.20 Australian Consumer Law see also Misleading or deceptive conduct application of law .… 17.14, 22.2, 22.5 breach of provisions .… 16.1 consumer guarantees .… 10.27, 13.64, 29.32 defective goods .… 11.35, 13.64 contribution between tortfeasors .… 29.32 fair trading acts, and .… 22.2 overview .… 17.14, 22.2

proportionate liability .… 29.42 recreational services .… 10.27 Automatism battery .… 3.6 B Bailiffs execution of process .… 6.47 failure to act in accordance .… 6.48 Bailment action on the case .… 4.65 bailment at will .… 4.5, 4.6 contractual terms .… 4.7 conversion .… 4.5 bailment at will .… 4.5, 4.6 contractual terms .… 4.7 fraudulent sale .… 4.27 involuntary bailees .… 4.29, 4.32 jus tertii .… 4.14, 4.15 lost or destroyed goods .… 4.32 misdelivery of goods .… 4.30 statutory provisions .… 4.8 hire–purchase agreements .… 4.7 involuntary bailees .… 4.29 statutory provisions .… 4.8 trespass to goods .… 4.49 Bankruptcy damages .… 27.42, 29.20 liability of bankrupt .… 29.20 maintenance and champerty .… 25.38, 25.42 malicious prosecution .… 25.17

overview .… 29.20 power of bankrupt to sue .… 29.21 Barristers immunity duty of care .… 7.56, 7.57 policy considerations .… 7.57 scope of immunity .… 7.57 Battery act of defendant .… 3.8, 3.11 consequential acts .… 3.11 consequential injuries .… 3.11, 3.12 contact with plaintiff .… 3.9, 3.13 direct acts .… 3.11 direct injuries .… 3.11, 3.12 everyday contacts .… 3.10 force or insult .… 3.13 permitted contacts .… 3.10 assault, distinction .… 1.5, 3.16 consent .… 3.7 burden of proof .… 3.7 implied consent .… 3.10 medical procedures .… 6.8, 6.9 damage requirement .… 3.14 damages .… 3.14 exemplary damages .… 27.12 injured feelings .… 3.14 defences .… 6.8, 6.9 arrest .… 6.35 defence of another .… 6.17, 19.45 recaption of chattels .… 6.24 self-defence .… 6.15, 19.44 statutory authority .… 6.49

exemplary damages .… 27.12 intention .… 3.2 deemed intention .… 3.3 transferred intent .… 3.4 voluntariness .… 3.6 negligence, and .… 3.2 overview .… 3.1, 3.2 state of mind of defendant .… 3.2 automatism .… 3.6 hostility .… 3.5 intention .… 3.2–3.4, 3.6 mental illness .… 3.6 motive and malice .… 3.5 voluntariness .… 3.6 Breach of contract actions in tort and contract .… 27.38 commission in another country .… 27.44 assessment of damages .… 27.45 assignability of right to sue .… 27.41 bankruptcy .… 27.42 contribution .… 27.40, 29.32 contributory negligence .… 27.39 limitation period .… 27.46 minors .… 27.43, 29.19 apportionment legislation .… 10.15, 10.18 damages .… 13.41, 21.21 actions in tort and contract .… 27.38–27.46 detinue, and .… 4.59 implied terms .… 1.13 inducing breach see Inducing contract breach intimidation .… 21.36, 21.37, 21.38

limitation period .… 27.46 minors .… 4.59, 29.17, 29.19 overview .… 1.2, 1.3 Breach of duty see also Standard of care negligent misstatement .… 13.19 overview .… 7.3, 8.1 public authorities .… 7.31 Breach of statutory duty availability of action .… 16.10 conduct of defendant .… 16.10 legislative intent .… 16.10 restrictions .… 16.6–16.9 basis of action .… 16.10, 16.11 plaintiff’s interest .… 16.11, 16.12–16.15 specified class .… 16.10, 16.11 conduct of defendant .… 16.10, 16.30 contribution between tortfeasors .… 29.38 contributory negligence .… 16.35, 16.36 apportionment legislation .… 16.37 criminal breach .… 1.5, 16.1, 16.32 Crown .… 29.5 defences .… 16.32 act of third party .… 16.38 contributory negligence .… 16.35, 16.36–16.37 criminal breach .… 16.32 delegation of duties to employee .… 16.34 voluntary assumption of risk .… 16.33 development of action .… 16.2, 16.4 abolition proposals .… 16.9 Canada .… 16.7 England .… 16.2, 16.3, 16.8

general rule .… 16.2 New Zealand .… 16.5 workplace health and safety .… 16.3, 16.4, 16.6 factors in proving .… 16.16 burden on defendant .… 16.18 causation .… 16.31 conduct of defendant .… 16.30 duty on defendant .… 16.17, 16.18 harm suffered within risk .… 16.26–16.28 legislative intent .… 16.19–16.25 plaintiff’s interests .… 16.19 pre-existing state of the law .… 16.20–16.22 public and private rights .… 16.23 specified class .… 16.29 harm suffered within risk .… 16.26 dangerous machinery .… 16.27 foreseeable risk .… 16.28 independent contractors .… 26.23 legislative intent .… 16.1, 16.10, 16.19 alternative remedies .… 16.24, 16.25 pre-existing state of the law .… 16.20–16.22 public and private rights .… 16.23 overview .… 16.1, 16.2, 29.5 plaintiff’s interests .… 16.11, 16.12, 16.19 economic interests .… 16.14 industrial workers .… 16.12 motorists or pedestrians .… 16.12 other interests .… 16.15 property interests .… 16.13 statutory interpretation .… 16.12 pre-existing state of the law .… 16.20, 16.22

higher standard of care .… 16.21 limited rights .… 16.22 restrictions on availability .… 16.6, 16.9 Canada .… 16.7 England .… 16.8 specified class .… 16.10, 16.11, 16.29 strict liability .… 16.10 workplace health and safety .… 16.3, 16.4, 16.6, 16.21 availability of action .… 16.6 causation .… 16.31 conduct of defendant .… 16.30 contributory negligence .… 16.35, 16.36, 16.37 dangerous machinery .… 16.27 delegation of duties to employee .… 16.34 duty on defendant .… 16.18 specified class .… 16.29 statutory interpretation .… 16.12 voluntary assumption of risk .… 16.33 Brokers conversion .… 4.28 Builders duty of care .… 13.68, 13.72 exclusion clauses .… 13.72 statutory warranties .… 13.70 Burden of proof causation .… 9.3, 9.4 consent .… 2.17, 3.7 negligence .… 8.38 trespass and negligence .… 2.6, 2.13–2.17, 2.20 highway cases .… 2.13, 2.16, 2.18–2.19 Business interests see also Economic torts; Misleading or deceptive

conduct C Cattle trespass cattle, definition .… 15.3 character of the act .… 15.4 conduct of defendant .… 15.5 contributory negligence .… 15.10 damages .… 15.8 personal injuries .… 15.9 defences .… 15.10 development of action .… 15.2, 15.10 excluded animals .… 15.3 historical background .… 15.2, 15.8, 15.10 nature of liability .… 15.2 nuisance, distinction .… 15.2 overview .… 15.1 persons liable .… 15.6 scienter action, and .… 15.11 standing to sue .… 15.7 trespass, distinction .… 15.2 Causation see also Remoteness of damage accelerated death .… 9.18 pre-existing conditions .… 9.18 accelerated injury .… 9.19 breach of statutory duty .… 16.31 ‘but for’ test .… 9.5 causal concepts .… 9.5, 9.6 chain of causation .… 9.13 concurrent causes .… 9.17 novus actus interveniens .… 9.13, 9.14, 9.16

unreasonable subsequent acts .… 9.15, 9.16 civil liability legislation .… 9.1 complex of conditions .… 9.5, 9.6 concurrent causes .… 9.17 separate tortious acts .… 9.17 vicissitudes principle .… 9.21 contributory negligence .… 10.5, 10.6 apportionment legislation .… 10.17 deceit .… 23.32 evidence of causation .… 9.2 balance of probabilities .… 9.2, 9.3, 9.4 evidentiary onus .… 9.3, 9.4 medical treatment .… 9.3, 9.4 mesothelioma .… 9.3, 9.4 occupiers’ liability .… 9.2 shifting of onus .… 9.3, 9.4 factual causation .… 9.7 false imprisonment .… 3.34 inducing contract breach .… 21.12 legal causation .… 9.7 medical treatment .… 9.3, 9.4, 9.5 unreasonable subsequent acts .… 9.15 misleading or deceptive conduct .… 22.27, 22.48, 23.24, 23.34 negligent acts or omissions .… 13.57 negligent misstatements .… 13.37, 13.38, 23.33 external factors .… 13.39 novus actus interveniens .… 9.13, 9.14, 9.16, 27.14, 27.16 act of plaintiff .… 27.18 natural events .… 27.17 overview .… 1.14, 9.1, 9.24 policy considerations .… 9.6

question of fact .… 9.6 successive acts .… 9.17 successive injuries .… 9.20 taking victims as you find them .… 9.23 vicissitudes principle .… 9.21, 9.22, 9.23 ulterior harm .… 9.13 foreseeability .… 9.13, 9.14, 9.16 novus actus interveniens .… 9.13, 9.14, 9.16 principle of risk .… 9.16 unreasonable subsequent acts .… 9.15, 9.16 value judgments .… 9.6 Champerty see Maintenance and champerty Chattels see also Defective goods; Interference with goods nuisance .… 14.34 replevin .… 6.29 Cheques conversion .… 4.16, 4.27, 4.29 co-ownership .… 4.34 Children see Minors; Parent and child Civil aviation compensation aircraft operator’s liability .… 12.41 surviving family members .… 12.42 deep vein thrombosis .… 12.42 international conventions .… 12.40, 12.42 limitation period .… 28.7 overview .… 12.40 types of accident .… 12.42 types of injury .… 12.42 Civil liability legislation causation .… 9.1 damages .… 11.4, 11.5, 12.1

earning capacity, loss .… 11.12 gratuitous nursing care .… 11.17 non-pecuniary damages .… 11.31 pure mental harm .… 7.42, 7.44 basis of liability .… 7.45 relationship between victims .… 7.49 rescuers .… 7.48 secondary victims .… 7.48, 7.49 voluntary acceptance of risk .… 7.54 voluntary assumption of risk .… 7.54, 10.20 volunteers .… 7.61 Civil proceedings see also Maintenance and champerty malicious prosecution .… 25.17, 25.21 Collateral abuse of process civil liability immunity, distinction .… 25.24 damages .… 25.26 essence of tort .… 25.25 improper purpose .… 25.25 malicious prosecution, distinction .… 25.23 overview .… 25.22, 25.25 stay of proceedings, distinction .… 25.22 Compensation see also Damages civil aviation see Civil aviation compensation criminal injuries see Criminal injuries compensation interests of plaintiff .… 1.10, 1.11 developments in law .… 1.11, 1.12, 1.13 intentional interference .… 1.11 personal injuries .… 1.14 types of interests .… 1.11 nature of conduct .… 1.10, 1.11 developments in law .… 1.11, 1.12

overview .… 1.7, 1.10 personal injuries .… 1.14, 12.1 accident compensation (NZ) .… 12.43–12.49 civil aviation .… 12.40–12.42 criminal injuries compensation .… 12.12–12.19 social security .… 12.2–12.6 transport accidents .… 12.20–12.39 workers’ compensation .… 12.7–12.11 social security see Social security benefits transport accidents see No-fault compensation schemes workers’ compensation see Workers’ compensation Concealment limitation period .… 28.33 Concurrent causes overview .… 9.17 separate tortious acts .… 9.17 vicissitudes principle .… 9.21 Conflict of laws limitation periods, and .… 28.40, 28.41 Consent see also Voluntary assumption of risk assault .… 3.7, 6.5, 6.8 assumption of risk, distinction .… 6.4 battery .… 3.7, 6.8 implied consent .… 3.10 medical procedures .… 6.8, 6.9 burden of proof .… 2.17, 3.7 criminal acts .… 6.11 defamation .… 19.71 forms of consent .… 6.4, 10.19 fraud or duress .… 6.7 grievous harm .… 6.11

inferred consent .… 3.10, 6.5 medical procedures .… 6.8, 8.2 mental disability .… 6.10 minors .… 6.9 temporary incapacity .… 6.10 nuisance .… 14.45 overview .… 6.4, 6.5 sporting injuries .… 6.6 trespass to land .… 6.5 revocation of licences .… 6.12 trespass to person .… 2.17, 6.5, 6.10 withdrawal of consent .… 6.13 Consortium see Loss of consortium Conspiracy agreement between persons .… 21.47 direct evidence .… 21.47 performance .… 21.48 commission of another tort .… 21.51 defences .… 21.56 joint tortfeasors .… 21.52 common elements of liability .… 21.46 agreement between persons .… 21.47 damage requirement .… 21.49 performance of agreement .… 21.48 development of tort .… 21.44 reconciliation of views .… 21.45 heads of liability .… 21.43 intimidation, distinction .… 21.31 lawful means .… 21.43, 21.45, 21.57 common disinterested malevolence .… 21.59 difficulties in establishing .… 21.59, 21.60

High Court .… 21.58 motive or purpose .… 21.58 overview .… 20.1, 20.2, 20.4, 20.6, 21.2, 21.43 unlawful means .… 21.43, 21.45, 21.50 commission of another tort .… 21.51–21.52, 21.56 commission of crime .… 21.53, 21.56 defences .… 21.56 defendant’s state of mind .… 21.55 other unlawful means .… 21.54 Constitutionally protected privilege availability of defence .… 19.63 High Court decision .… 19.62 improper purpose .… 19.64 nature of discussions .… 19.63 New Zealand .… 19.66 overview .… 19.62, 19.66 reasonable publication .… 19.64, 19.65 scope of defence .… 19.63 statutory defence .… 19.65 United Kingdom .… 19.67 Consular officers immunity from liability .… 29.9 Competition and Consumer Act see also Australian Consumer Law overview .… 22.2 Consumer guarantees defective goods .… 13.64 contribution between tortfeasors .… 29.32 supply of services .… 10.27 Consumer products manufacturer’s liability .… 1.20 deceased’s family members .… 11.36

Consumer protection see Australian Consumer Law Contract bailment .… 4.7 breach of contract see Breach of contract duties .… 1.2, 1.3 employment see Employment contracts exclusion clauses .… 10.23 false imprisonment .… 3.31 illegal contracts .… 6.58 implied terms .… 1.2 breach of good faith .… 1.12 inducing breach see Inducing contract breach limitation clauses .… 10.23 maintenance and champerty .… 25.33 minors .… 29.19 overview .… 1.2 privity of contract .… 1.2, 13.14 protection of interests .… 1.3 pure economic loss, and .… 13.12 duty of care .… 13.13, 13.14 tort, distinction .… 1.1, 1.2 concurrent duties .… 1.3 protection of interests .… 1.3 Contribution between tortfeasors actions in tort and contract .… 27.40, 29.32 amount recoverable .… 29.36 breach of occupancy duties .… 29.37 breach of statutory duty .… 29.38 limit to amount .… 29.41 strict liability .… 29.38 vicarious liability .… 29.39, 29.40

entitlement to claim .… 29.33 liability for claims .… 29.34 insurance companies .… 29.35 limitation period .… 28.34 overview .… 28.34, 29.31 scope of legislation .… 29.32 Contributory negligence actions in tort and contract .… 27.39 apportionment legislation .… 10.2, 10.6, 10.15 amendments .… 10.15 assessment of fault .… 10.16, 10.17 breach of statutory duty .… 16.37 cattle trespass .… 15.10 causation .… 10.17 courts’ considerations .… 10.16, 10.17 damage, definition .… 10.16 effect of application .… 10.18 fatal accidents legislation .… 11.39 fault, definition .… 10.16 ‘just and equitable’ apportionment .… 10.17 minors .… 10.11 nuisance .… 14.45 breach of statutory duty .… 16.35, 16.36 apportionment legislation .… 16.37 cattle trespass .… 15.10 causation .… 10.5, 10.6 apportionment legislation .… 10.17 conduct constituting .… 10.3 injury within the risk .… 10.4 negligent conduct contributory .… 10.5–10.8 conversion .… 6.14

disabled persons .… 8.17 dog attacks .… 15.23 elements .… 10.3 employees .… 10.14, 20.21 fatal accidents legislation .… 11.39 imputed contributory negligence .… 10.14 injury within the risk .… 10.4 intentional torts .… 6.14 intoxication .… 10.9, 10.12, 10.28 motor vehicle passengers .… 10.12 ‘last opportunity’ rule .… 10.5, 10.6 minors .… 8.15, 10.9, 10.11 mitigation of damage, distinction .… 27.21 negligent conduct contributory .… 10.5 apportionment legislation .… 10.6 causation .… 10.5, 10.6 common-sense principles .… 10.6 crash helmet cases .… 10.7, 10.8 ‘last opportunity’ rule .… 10.5, 10.6 proximate cause .… 10.6 seat belt cases .… 10.7, 10.8 substantial cause .… 10.6 timing of acts .… 10.6 negligent misstatements .… 13.42 nervous shock .… 7.53 overview .… 6.14, 10.1, 10.2 standard of care .… 10.9 apportionment legislation .… 10.11, 10.17, 10.18 assumptions of compliance .… 10.10 doctrine of alternative danger .… 10.13 general principles .… 10.10

imputed contributory negligence .… 10.14 intoxication .… 10.9, 10.12 minors .… 10.9, 10.11 obvious risk .… 10.9 reasonable care .… 10.10 Conversion acts of conversion .… 4.19 alteration of goods .… 4.21 court’s discretion .… 4.19, 4.33 deprivation of goods .… 4.20 destruction of goods .… 4.21 disposition and delivery .… 4.27–4.29 disposition without delivery .… 4.26 dispossession of goods .… 4.20 duress .… 4.20 goods left on land .… 4.31 lost or destroyed goods .… 4.32 misdelivery of goods .… 4.19, 4.30 receiving goods .… 4.24, 4.25 refusal to surrender on demand .… 4.31 residual acts .… 4.33 taking goods .… 4.20 using goods .… 4.22, 4.23 bailment .… 4.5 at will bailment .… 4.5, 4.6 contractual terms .… 4.7 fraudulent sale .… 4.27 involuntary bailees .… 4.29, 4.32 jus tertii .… 4.14, 4.15 lost or destroyed goods .… 4.32 misdelivery of goods .… 4.30

statutory provisions .… 4.8 cheques .… 4.16, 4.27, 4.29, 4.34 contributory negligence .… 6.14 co-ownership .… 4.34 damages .… 4.35, 4.64 appropriate measure of loss .… 4.38 bailment .… 4.5 copyright infringement .… 4.38 greater than market value .… 4.40 hire purchase agreements .… 4.37 less than market value .… 4.41 negotiable instruments .… 4.38 restrictions on amount .… 4.36, 4.37 right to possession .… 4.36 time of determining value .… 4.39 value of plaintiff’s interest .… 4.35 date of conversion .… 4.39 defences .… 6.14 execution of process .… 6.47 illegal contracts .… 6.58 jus tertii .… 4.14, 4.15 definition .… 4.3 detinue, distinction .… 4.55, 4.59, 4.60, 4.61, 4.64 disposition and delivery .… 4.27 auctioneers .… 4.27, 4.28 brokers .… 4.28 fraudulent sale .… 4.27 innocent transfer .… 4.27 involuntary bailees .… 4.29 finders of goods .… 4.12, 4.13 historical background .… 4.1

intention .… 4.18, 4.19 interest of plaintiff .… 4.4 joint ownership .… 4.34 jus tertii .… 4.14, 4.15 licensees .… 4.11 liens .… 4.9, 4.27 limitation of actions .… 4.42 lost or destroyed goods .… 4.32, 4.65 co-ownership .… 4.34 mistake .… 1.5, 4.18, 4.30 nature of goods .… 4.16 human body parts .… 4.16 intangible property .… 4.16, 4.17 negotiable instruments .… 4.16, 4.29 damages .… 4.38 non-negotiable instruments .… 4.17 overview .… 4.1, 4.2, 4.19, 4.65 pledges .… 4.9, 4.27 receiving goods .… 4.24 exceptions to principle .… 4.25 sale of goods .… 4.10 acts of conversion .… 4.19 expiry of credit period .… 4.10 non-delivery of goods .… 4.10 scope of protection .… 4.3 shares .… 4.17 state of mind of defendant .… 4.18 intention .… 4.18 mistaken belief .… 4.18 subject matter .… 4.16 human body parts .… 4.16

intangible property .… 4.16, 4.17 third party rights .… 4.14, 4.15 trespass, and .… 4.1 Convicted persons right to sue in tort .… 29.23 Co-ownership conversion .… 4.34 Copyright infringement conversion .… 4.38 Criminal acts consent .… 6.11 vicarious liability .… 26.53 sexual abuse of minors .… 26.54–26.56 Criminal injuries compensation conduct of victim .… 12.18 deceased victims .… 12.17 maximum amount .… 12.16 mental disorders .… 12.15 nervous shock .… 12.15 other sources of compensation .… 12.19 overview .… 12.12 pregnancy .… 12.15 property damage .… 12.15 reduction of amount .… 12.18 reimbursement by offender .… 12.19 relationship between victim and offender .… 12.18 reporting of crime .… 12.18 right to claim .… 12.12, 12.13 family members of deceased .… 12.17 prevention of offence .… 12.14 status of offender .… 12.13

standard of proof .… 12.13 trespass to person .… 3.38 types of injury .… 12.15 Criminal law assault, and .… 3.15 breach of statutory duty .… 16.1 deterrence .… 1.8 function .… 1.6 incidence of liability .… 1.5 tort, distinction .… 1.1, 1.5, 1.6 transferred intent .… 3.4 Criminal liability breach of statutory duty .… 1.5, 16.1 defences .… 16.32 defamation .… 1.5 exemplary damages, and .… 1.6, 27.13 Trade Practices Act .… 22.32, 22.33 Criminal offences conspiracy .… 21.53 defences .… 21.56 defamation .… 18.8, 19.4 minor criminal convictions .… 19.8 proof of conviction .… 19.4 Criminal proceedings see also Malicious prosecution maintenance and champerty .… 25.34 Crown breach of statutory duty .… 29.5 definition .… 29.2 immunity from liability .… 26.57, 26.60, 29.1 rationale for immunity .… 26.58 statutory modification .… 29.1

meaning .… 29.2 military operations .… 29.6 misfeasance in public office .… 25.29 misleading or deceptive conduct .… 22.6 overview .… 29.1 personal liability .… 29.4 prerogative powers .… 6.56 vicarious liability .… 26.57, 29.3 immunity .… 26.57, 26.58, 26.60, 29.1 rationale for immunity .… 26.58 D Damage requirement see also Causation; Remoteness of damage battery .… 3.14 conspiracy .… 21.49 inducing contract breach .… 21.17 injurious falsehood .… 23.2 maintenance or champerty .… 25.43 malicious prosecution .… 25.16 misfeasance in public office .… 25.32 negligence .… 2.21, 9.1, 27.15 nuisance .… 14.6, 27.15 Damages see also Contribution between tortfeasors actions both in tort .… 27.34 different causes of action .… 27.36–27.37 different heads of damage .… 27.35 actions in tort and contract .… 27.38, 27.45 assignability of right to sue .… 27.41 bankruptcy .… 27.42 commission in another country .… 27.44 contribution .… 27.40, 29.32

contributory negligence .… 27.39 limitation period .… 27.46 minors .… 27.43 actions in tort and restitution .… 27.47 measure of damages .… 27.48 aggravated damages see Aggravated damages bailment .… 4.5 bankruptcy .… 27.42, 29.20 battery .… 3.14 breach of contract .… 13.41, 21.21 actions in tort and contract .… 27.38–27.46 cattle trespass .… 15.8 personal injuries .… 15.9 collateral abuse of process .… 25.26 contemptuous damages .… 27.4 conversion .… 4.35, 4.64 appropriate measure of loss .… 4.38 bailment .… 4.5 copyright infringement .… 4.38 damages greater than market value .… 4.40 damages less than market value .… 4.41 hire purchase agreements .… 4.37 negotiable instruments .… 4.38 restrictions on amount .… 4.36, 4.37 right to possession .… 4.36 time of determining value .… 4.39 value of plaintiff’s interest .… 4.35 deceit .… 23.14, 23.15, 23.16, 23.28 exemplary damages .… 23.31 defamation .… 19.75 aggravated damages .… 19.81

aggravation .… 19.80 determination of amount .… 19.76 exemplary damages .… 19.82 mitigation .… 19.77–19.79 detinue .… 4.60, 4.63 increases in value .… 4.63 measure of damages .… 4.63, 4.64 different causes of action .… 27.33 both in tort .… 27.34–27.37 tort and contract .… 27.38–27.46 tort and restitution .… 27.47–27.48 exemplary damages see Exemplary damages false imprisonment .… 3.37 fatal accidents legislation .… 11.43, 11.45 acceleration of benefit .… 11.51 apportionment among family .… 11.44 capitalisation of loss .… 11.43 claimant partly at fault .… 11.50 discount rate .… 11.43 extent of loss suffered .… 11.46–11.48 pecuniary advantage from another .… 11.52 pecuniary advantage from death .… 11.51 reduction of award .… 11.49–11.52 workers compensation .… 11.48 general damages .… 27.5 inducing contract breach .… 21.21 injurious falsehood .… 23.4 interest .… 27.24 common law rule .… 27.26 discretion to award .… 27.28–27.32 judicial developments .… 27.27

legislative developments .… 27.28–27.32 nature of interest .… 27.25 intimidation .… 21.41 limitations on recovery .… 27.14 mitigation of damage .… 27.19–27.21 new intervening force .… 27.16–27.18 remoteness of damage .… 27.15 loss of consortium .… 24.4, 24.5 material and temporal loss .… 24.5 medical and nursing expenses .… 24.5 loss of services .… 20.11, 20.17 contributory negligence .… 20.21 large business .… 20.19, 20.25 small business .… 20.18 workers’ compensation .… 20.20 malicious prosecution .… 26.16, 25.26 minors .… 27.43 earning capacity, loss .… 11.10, 11.11 misfeasance in public office .… 25.32 misleading or deceptive conduct .… 22.46, 23.3, 23.4, 23.30 causal connection .… 22.48 exemplary damages .… 23.31 extent of liability .… 22.49, 22.50, 23.30 inducement of plaintiff .… 22.50 limitation period .… 22.51, 22.52 loss recoverable .… 22.47 other liable persons .… 22.53 mitigation of damage .… 27.19 contributory negligence, distinction .… 27.21 defamation .… 19.77–19.79 meaning .… 27.19

medical treatment .… 27.19 plaintiff’s actions .… 27.20 negligent misstatements .… 13.41, 23.29 exemplary damages .… 23.31 nominal damages .… 27.3 non-pecuniary damages .… 11.6, 11.27, 27.9 loss of amenities .… 11.29 loss of expectation of life .… 11.30 pain and suffering .… 11.2, 11.28, 11.29 statutory limits .… 11.31 nuisance .… 14.34, 14.49, 27.6, 27.15 chattels .… 14.34 continuing nuisance .… 14.50 personal injuries .… 14.34 overview .… 27.2 pecuniary damages .… 11.6, 11.18 administration costs .… 11.20 capitalisation of loss .… 11.25, 11.26 discount rate .… 11.26 earning capacity .… 11.7–11.12, 11.14, 11.18 home modifications .… 11.21 household services .… 11.19 medical and nursing care .… 11.13–11.17, 11.18 monetary benefits from other sources .… 11.22–11.24 purpose-built accommodation .… 11.21 personal injuries .… 1.14, 11.1, 11.32, 12.1 aggravated damages .… 27.9 aim of awards .… 11.2 categories of loss .… 11.6 cattle trespass .… 15.9 common law deficiencies .… 11.2, 11.3, 11.4, 12.1

future earning capacity .… 11.3 general damages .… 27.5 gratuitous nursing services .… 1.17 levels of award .… 11.5 limitation on items .… 11.5 limitation period .… 28.4 loss of consortium .… 24.4, 24.5 lump sum awards .… 11.1 non-pecuniary losses .… 11.6, 11.27–11.31 nuisance .… 14.34 pain and suffering .… 11.2, 11.28 parents right of action .… 24.12, 24.13 pecuniary losses .… 11.6, 11.7–11.26 periodical payments .… 11.4 social security benefits .… 11.23, 12.6 special damages .… 27.5 statutory modification .… 11.4, 11.5, 12.1 prisoners .… 29.23 quantification issues .… 27.22 income tax .… 27.23 interest .… 27.24–27.32 secondary interests .… 27.6 special damages .… 27.5 survival of actions .… 11.54, 11.55, 11.56 taxation .… 27.23 trespass to goods .… 4.52, 27.15 mitigation of damage .… 27.19 trespass ab initio .… 4.53 trespass to land .… 5.15, 27.15 aggravated damages .… 5.19 consequential loss .… 5.16

cost of repairs .… 5.15 exemplary damages .… 5.19 mitigation of damage .… 27.19 non-pecuniary losses .… 5.19 severance of resources .… 5.18 special damages .… 5.16 wilful or innocent acts .… 5.18 wrongful occupancy .… 5.17 types of damages .… 27.3–27.13 wrongful birth .… 7.58 United Kingdom .… 7.59 Dangerous animals see Scienter action Death accelerated death .… 9.18 pre-existing conditions .… 9.18 accident compensation scheme (NZ) .… 12.44, 12.49 cause of action .… 11.32, 11.53, 28.42 survival of actions .… 11.53–11.60 civil aviation compensation .… 12.42 limitation period .… 28.7 criminal injuries compensation .… 12.17 dependants action see Fatal accidents legislation dog attacks .… 15.21 limitation period .… 28.42 loss of services .… 20.11 no-fault compensation schemes .… 12.20 Northern Territory .… 12.34, 12.36 Tasmania .… 12.27, 12.31, 12.32 Victoria .… 12.21, 12.24 overview .… 11.32 social security benefits .… 12.5

survival of actions .… 11.32, 11.53, 11.54, 11.57 benefit of victim’s estate .… 11.54 defamation .… 18.12 exemplary damages .… 27.12 fatal accident legislation, distinction .… 11.57 funeral expenses .… 11.58 independent cause of death .… 11.56 losses or gains consequent on death .… 11.55 non-pecuniary losses .… 11.55, 11.56 original injury causing death .… 11.55 subsisting against deceased .… 11.59–11.60 workers’ compensation .… 12.10 Deceit agents .… 23.35, 26.13 basis of liability .… 23.13 causation .… 23.32 checking of statement .… 23.41 damages .… 23.14, 23.15, 23.16, 23.28 exemplary damages .… 23.31 definition .… 23.17 disclaimers of liability .… 23.25 exemplary damages .… 23.31 historical background .… 23.13, 23.14 Derry v Peek .… 23.16 inducement by fraud .… 23.14, 23.15, 23.16 negotiating a bargain .… 23.14 remedies .… 23.14, 23.15, 23.16 intentional interference .… 1.11 knowledge of falsity .… 23.41 misleading or deceptive conduct, and .… 20.3, 20.4, 22.1, 22.3, 22.4, 22.30, 23.1, 23.12, 23.17, 23.41

advantage of action .… 23.40 agents .… 23.37 causation .… 23.34 disclaimers of liability .… 23.27 exemplary damages .… 23.31 losses recoverable .… 23.30 nature of misrepresentation .… 23.20 scope of liability .… 23.24 state of mind of defendant .… 23.21 vicarious liability .… 23.37 written requirement .… 23.39 nature of misrepresentation .… 23.18 negligent misstatements, comparison .… 23.17, 23.42 causation .… 23.33 disclaimers of liability .… 23.26 duty of care .… 23.23 nature of misrepresentation .… 23.19 state of mind of defendant .… 23.21 written requirement .… 23.39 overview .… 20.1, 20.2, 20.6, 22.1, 23.12, 23.17, 23.40 qualification of statement .… 23.41 recoverable losses .… 23.28 remedies .… 23.14, 23.15, 23.16 scope of liability .… 23.22 recoverable losses .… 23.28 state of mind of defendant .… 23.21 vicarious liability .… 23.35, 26.13 written requirement .… 23.38 Defamation agents .… 26.14 civil liability .… 1.5

communication .… 17.1, 18.1, 18.18 criminal liability .… 1.5 criminal offences .… 18.8, 19.4 minor criminal convictions .… 19.8 proof of conviction .… 19.4 damages .… 19.75 aggravated damages .… 19.81 aggravation .… 19.80 apology to plaintiff .… 19.78 determination of amount .… 19.76 exemplary damages .… 19.82, 27.11 mitigation .… 19.77–19.79 several liability .… 19.79 death .… 28.42 defamatory statements .… 18.1, 18.2, 18.11 caricatures or cartoons .… 18.3 context of statement .… 18.4 coupled with other statements .… 18.10 definition .… 18.2 dishonouring plaintiff .… 18.3 interpretation .… 18.8–18.10 members of group .… 18.5, 18.6 moral behaviour .… 18.3 photographs .… 18.3, 18.8 professional reputation .… 18.7 trading reputation .… 18.7 duty of care .… 17.3 elements .… 18.1 exemplary damages .… 19.82, 27.11 historical development .… 17.6, 17.7, 17.13 codification of law .… 17.9, 17.10, 17.11

difficulties in applying law .… 17.12 early reform attempts .… 17.8 libel and slander .… 17.2, 17.7, 17.8 spiritual damage .… 17.7 statutory reforms .… 17.9, 17.10, 17.11 temporal damage .… 17.7 uniform law proposal .… 17.13 identification of plaintiff .… 18.14 derivation from other statements .… 18.15 third parties .… 18.15 innocent disseminators .… 18.23, 18.26 booksellers .… 18.26 establishment of principle .… 18.23 internet search engines .… 18.24 libraries .… 18.26 newsagents .… 18.26 printers of material .… 18.25 interpretation of statements .… 18.8 court’s approach .… 18.10 criminal offences .… 18.8 innuendos .… 18.8, 18.9, 18.10 photographs .… 18.8 types of implication .… 18.8, 18.9 libel .… 17.2, 17.7 reform attempts .… 17.8 slander, distinction .… 17.7 limitation period .… 28.6 malicious prosecution, and .… 25.2, 26.17 misleading or deceptive conduct .… 17.14, 17.15 circumstances for use .… 17.16 restrictions on application .… 17.15

overview .… 17.1, 17.6 partnerships .… 18.13, 29.14 persons who can be defamed .… 18.12 business partnerships .… 18.13 survival of actions .… 18.12 trade unions .… 18.13 trading corporations .… 18.13 unincorporated associations .… 18.13 privacy, and .… 17.4 publication .… 17.12, 18.1, 18.17, 19.73 awareness of defamatory nature .… 18.22, 18.23–18.26 communication .… 18.18 examples .… 18.18 innocent disseminators .… 18.23–18.26 intention internet postings .… 18.19, 19.73 interstate publication .… 19.73 letters .… 18.18 liability .… 18.19, 18.22 misleading or deceptive conduct .… 17.15 omission, by .… 18.21 overhearing words .… 18.18 participants in dissemination .… 18.19 qualified privilege, and .… 18.20 subsequent disseminations .… 18.20 reference to plaintiff .… 18.1, 18.11 groups of persons .… 18.16 identification of plaintiff .… 18.14, 18.15 persons who can be defamed .… 18.12, 18.13 remedies .… 19.74 damages .… 19.75–19.82

injunctions .… 19.83 reputation .… 17.3 professional reputation .… 18.7 trading reputation .… 18.7 slander .… 17.2, 17.7, 26.17 libel, distinction .… 17.7 reform attempts .… 17.8 uniform legislation .… 17.2, 17.5, 17.13 background to introduction .… 17.13 unincorporated associations .… 18.13, 29.12, 29.13 vicarious liability .… 19.28, 19.29 abuse of privilege .… 19.57 agents .… 26.14 Defamation defences absolute privilege .… 19.30, 19.31 abuse of privilege .… 19.49 judicial proceedings .… 19.23, 19.33, 19.34, 19.36 ministerial communications .… 19.35 parliamentary proceedings .… 6.53, 19.23, 19.32, 19.35 solicitor-client communications .… 19.36 abuse of privilege .… 19.49 excessive publication .… 19.56 extraneous matter .… 19.55 joint publishers .… 19.57 knowledge of falsity .… 19.53–19.54 malicious or improper purpose .… 19.50–19.52 vicarious liability .… 19.57 acquiescence .… 19.71 consent .… 19.71 constitutionally protected privilege .… 19.62, 19.66 availability of defence .… 19.63

High Court decision .… 19.62 improper purpose .… 19.64 nature of discussions .… 19.63 New Zealand .… 19.66 reasonable publication .… 19.64, 19.65 scope of defence .… 19.63 statutory defence .… 19.65 United Kingdom .… 19.67 honest opinion .… 19.6, 19.13 facts on which opinion based .… 19.16, 19.18, 19.19, 19.21–19.23 honesty requirement .… 19.24–19.27 privileged statements .… 19.22 public interest .… 19.13, 19.14, 19.15 publishers of comment .… 19.28, 19.29 statements of opinion not fact .… 19.16, 19.17–19.20 interstate publications, and .… 19.73 justification .… 19.2, 19.3 accuracy of statement .… 19.3 accurate repetition to third person .… 19.5 common sting of imputations .… 19.11 completeness of defence .… 19.7 contextual truth .… 19.12 criminal offences .… 19.4, 19.8 evidence after publication .… 19.7 fact and opinion .… 19.6 inferences and innuendoes .… 19.3 meaning of statement .… 19.9 minor criminal convictions .… 19.8 several imputations .… 19.10, 19.11 offer of amends .… 19.68 New Zealand .… 19.69

requirements .… 19.70 overview .… 17.3, 17.11, 19.1 parliamentary privilege .… 6.53, 19.23, 19.32 ministerial communications .… 19.35 qualified privilege .… 18.20, 19.30, 19.37, 19.61, 19.62 abuse of privilege .… 19.49 categories of occasions .… 19.38 community of interest .… 19.48 consent, distinction .… 19.71 criminal activity information .… 19.43 general principle .… 19.38 judicial proceeding reports .… 19.41 parliamentary proceeding reports .… 19.40 public interest .… 19.39–19.43 public registers extracts .… 19.42 publisher’s interest .… 19.44 recipient’s interest .… 19.45–19.47, 19.48, 19.59, 19.60 statutory qualified privilege .… 19.58–19.61, 19.67 tribunal proceeding reports .… 19.41 triviality .… 19.72 Defective buildings architects .… 13.71, 13.72 builders .… 13.68, 13.70, 13.72 exclusion clauses .… 13.72 statutory warranties .… 13.70 engineers .… 13.69, 13.71, 13.72 limitation period .… 28.5 commencement of period .… 28.15 local authorities .… 13.73, 13.75 certificates of occupancy and use .… 13.74, 13.75 overview .… 13.6, 13.44, 13.63, 13.66

reliance on skill .… 13.67 sub-contractors .… 13.76 Defective goods contribution between tortfeasors .… 29.32 latent defects .… 13.65 manufacturer’s liability .… 11.35, 13.64 overview .… 13.63 Defences arrest .… 6.35 detention of suspect .… 6.43–6.46 force in arrest .… 6.40, 6.41 manner of arrest .… 6.42 reasonable cause .… 6.39 statutory powers .… 6.38 unlawful arrest .… 6.35 with warrant .… 6.36 without warrant .… 6.37, 6.38 assault .… 6.5, 6.8 arrest .… 6.35 defence of another .… 6.17, 19.45 self-defence .… 6.15, 19.44 statutory authority .… 6.49 battery .… 6.8, 6.9 arrest .… 6.35 defence of another .… 6.17, 19.45 recaption of chattels .… 6.24 self-defence .… 6.15, 19.44 statutory authority .… 6.49 breach of statutory duty .… 16.32 act of third party .… 16.38 contributory negligence .… 16.35, 16.36, 16.37

criminal breach .… 16.32 delegation of duties to employee .… 16.34 voluntary assumption of risk .… 16.33 cattle trespass .… 15.10 consent see Consent conspiracy .… 21.56 contractual exclusion clauses .… 10.23 contributory negligence see Contributory negligence conversion .… 6.14 execution of process .… 6.47 illegal contracts .… 6.58 jus tertii .… 4.14, 4.15 defamation see Defamation defences defence of property .… 6.18, 6.20 nuisance .… 14.47 detinue .… 4.57 discipline .… 6.30 children .… 6.31–6.33 public transport passengers .… 6.34 dog attacks .… 15.22 contributory negligence .… 15.23 provocation .… 15.24 trespassers on land .… 15.25 voluntary assumption of risk .… 15.24 employers .… 1.8 execution of process .… 6.47 failure to act in accordance .… 6.48 executive acts .… 6.54 acquisitions on just terms .… 6.56 acts of state .… 6.55 prerogative powers .… 6.56

false imprisonment .… 3.34 arrest .… 6.35, 6.44 execution of process .… 6.47 mistake .… 6.2 questioning without charge .… 6.44 statutory authority .… 6.49 illegal activities .… 6.58, 6.59, 10.1 illegal contracts .… 6.58 inevitable accident .… 6.3 intellectual disability .… 29.16 intentional torts .… 6.1 abatement of nuisance .… 6.26, 14.53 arrest .… 6.35–6.46 assumption of risk .… 6.4 consent .… 6.4–6.11 contributory negligence .… 6.14 defence of another .… 6.17, 19.45 defence of another’s property .… 6.19 defence of property .… 6.18, 6.20 discipline .… 6.30–6.34 distress damage feasant .… 6.28 distress for rent .… 6.27 execution of process .… 6.47, 6.48 executive acts .… 6.54–6.56 inevitable accident .… 6.3 judicial acts .… 6.51, 6.52 military acts .… 6.57 mistake .… 6.2 necessity .… 6.20–6.23 parliamentary privilege .… 6.53 plaintiff a wrongdoer .… 6.58, 6.59

recaption of chattels .… 6.24 re-entry on land .… 6.25 replevin .… 6.29 self-defence .… 6.15, 6.16, 6.20, 19.44 statutory authority .… 6.49, 6.50 joint illegal activities .… 6.59, 10.1 judicial acts .… 6.51 extent of immunity .… 6.51 levels of immunity .… 6.51, 6.52 outside jurisdiction .… 6.51 justification see Justification meaning .… 6.5 necessity .… 6.20, 6.21 defence of property, distinction .… 6.20 justifiable actions .… 6.21, 6.23 medical treatment .… 6.22 negligent acts .… 6.23 nuisance .… 14.47 private sector, in .… 6.22 public sector, in .… 6.22 scope of defence .… 6.21 self-defence, distinction .… 6.20 no breach of duty .… 10.22 non-contractual notice of exculpation .… 10.24 nuisance .… 14.44, 14.47 abatement .… 6.26, 14.53 conduct of plaintiff .… 14.45 easement by prescription .… 14.44 fire .… 14.48 statutory authority .… 14.46 overview .… 6.1

parliamentary privilege .… 6.53, 19.23, 19.32, 19.40 ministerial communications .… 19.35 scope of protection .… 19.32 plaintiff a wrongdoer .… 6.58 breach of statutory duty .… 6.58 illegal contracts .… 6.58 joint illegal activities .… 6.59 public policy considerations .… 6.58, 6.59 scienter action .… 15.18 self-defence .… 6.15, 19.44 disproportionate force .… 6.16 reasonable force .… 6.15, 6.16 statutory authority .… 6.49 intention of legislature .… 6.50 nuisance .… 14.46 scope of protection .… 6.49 search and entry powers .… 6.49 trespass to goods .… 6.18 jus tertii .… 4.51 trespass to land .… 6.5, 6.18 jus tertii .… 5.14 recaption of chattels .… 6.24 re-entry on land .… 6.25 revocation of licence .… 6.12 trespass to person .… 6.5 consent .… 6.5, 6.10 inevitable accident .… 6.3 voluntary assumption of risk see Voluntary assumption of risk Definitions act of state .… 6.55 cattle .… 15.3

conversion .… 4.3 corporation .… 22.5 Crown .… 29.2 damage .… 10.16 deceit .… 23.17 defamatory statement .… 18.2 false imprisonment .… 3.24 fault .… 10.16 injurious falsehood .… 23.2 personal injury .… 12.45, 28.4 reasonable and probable cause .… 25.8 reasonable person .… 8.14 standard of care .… 8.1 Detinue abolition in England .… 4.2, 4.54 breach of contract, and .… 4.59 choosing detinue .… 4.59–4.61 conversion, distinction .… 4.55, 4.59, 4.60, 4.61, 4.64 damages .… 4.60, 4.63 increases in value .… 4.63 measure of damages .… 4.63, 4.64 demand and detention .… 4.55 delivery to third party .… 4.57 lost or destroyed goods .… 4.56 oral demands .… 4.55 forms of judgment .… 4.60 historical background .… 4.1, 4.54 interest of plaintiff .… 4.58 limitation of actions .… 4.62 overview .… 4.1, 4.2, 4.54 recovery of goods .… 4.60

Diplomatic officers immunity from liability .… 29.9 Directors action for loss of services .… 20.13 inducing contract breach .… 21.14 vicarious liability .… 26.15 Disabled persons see also Mental disabilities contributory negligence .… 8.17 standard of care .… 8.1, 8.17 motor vehicle drivers .… 8.18, 8.19 physical mental division .… 8.18 Discipline children .… 6.30 parents .… 6.31 schoolteachers .… 6.32, 6.33 overview .… 6.30 public transport passengers .… 6.30, 6.34 Disclaimers deceit .… 23.25 misleading or deceptive conduct .… 22.25, 22.41, 23.27 contract negotiations .… 22.43 qualifying original statement .… 22.42, 23.27 negligence .… 10.23 negligent misstatements .… 13.36, 23.26 Distress distress damage feasant .… 6.28 distress for rent .… 6.27 replevin .… 6.29 Doctor–patient relationship see Medical practitioners Dogs see Animals Duress

consent, by .… 6.7 conversion .… 4.20 Duty of care see also Standard of care air traffic controllers .… 7.7 architects .… 13.71, 13.72 breach of duty .… 7.3, 8.1 negligent misstatement .… 13.19 public authorities .… 7.31 builders .… 13.68, 13.72 children .… 7.23 loco parentis .… 7.23 concept of duty .… 7.4 complexity .… 7.4 Donoghue v Stevenson .… 7.5 rationalisation .… 7.5 contract, and .… 13.13 privity of contract .… 13.14 contributory negligence .… 10.9 defamation .… 17.3 directly owed to plaintiff .… 7.15 Donoghue v Stevenson .… 7.5 application of principle .… 7.8 extension of concept .… 7.7 duty to act .… 7.17, 7.18, 7.19, 7.28 special relationships .… 7.20 education authorities .… 7.7 employer–employee .… 7.30 non-delegable duties .… 26.28 employers .… 7.30, 26.26 non-delegable duties .… 26.2, 26.26, 26.28 engineers .… 13.69, 13.71, 13.72

established relationships .… 7.5 doctor–patient .… 7.22 gaoler–prisoner .… 7.24 parent–child .… 7.23 rescuers .… 7.25–7.27 school authorities .… 7.21 teachers .… 7.21 existence of new duties .… 7.6, 7.7, 7.13 Anns case .… 7.8, 7.11, 7.14 application of principle .… 7.8 expansion by analogy .… 7.11, 7.14 examples of new categories .… 7.7 fairness, justice and reasonableness .… 7.12, 7.13, 7.14 incremental approach .… 7.11, 7.14 need for clarity .… 7.13 policy considerations .… 7.12, 7.14 proximity .… 7.9, 7.10, 7.11, 7.13, 7.14 reasonable foreseeability .… 7.9, 7.12 salient features .… 7.13 three-stage test .… 7.12, 7.13 two-stage test .… 7.8, 7.11, 7.14 good Samaritans .… 7.27 joint illegal activities .… 6.59 law and fact .… 8.36 local authorities .… 13.73, 13.75 manufacturers .… 7.5 military operations .… 29.6 motor vehicle drivers .… 8.11, 8.12 negligent acts or omissions .… 13.47, 13.49, 13.50, 13.78 negligent misstatements .… 7.38, 13.19, 13.21, 13.24, 23.23 accountants .… 13.27, 13.28

auditors .… 13.27, 13.28 indirect reliance .… 13.30 intention to induce .… 13.29 knowledge of communication .… 13.29 oral statements .… 13.22 persons owed duty .… 13.24–13.30, 23.23 reasonable reliance .… 13.22, 13.23, 13.28, 13.30 reliance on certificates .… 13.26 responses to requests .… 13.23, 13.25 nervous shock .… 7.41 basis of liability .… 7.45 contributory negligence .… 7.53 development of law .… 7.43, 7.44 direct perception of events .… 7.48, 7.49 extent of mental harm .… 7.52 factors to consider .… 7.46–7.54 High Court approach .… 7.44 pre-existing relationship .… 7.50, 7.51 property damage .… 7.55 psychiatric illness resulting from shock .… 7.47 reasonable foreseeability .… 7.45, 7.55 recognisable psychiatric injury .… 7.42 relationship between plaintiff and defendant .… 7.50, 7.51 relationship between victims .… 7.49 voluntary acceptance of risk .… 7.54 no duty situations .… 7.4, 7.56 barristers immunity .… 7.57 straying animals .… 7.62 volunteers .… 7.61 wrongful birth .… 7.56, 7.58, 7.59 wrongful life .… 7.56, 7.60

non-delegable duties .… 26.27 categories of activity .… 26.27 dangerous users of land .… 26.31, 26.32 employers .… 26.2, 26.26, 26.28 hospitals .… 26.7, 26.29 invitors .… 26.34 land developers .… 26.33 prison authorities .… 26.30 school authorities .… 26.29, 26.56 occupiers’ liability .… 1.11, 7.30, 7.37, 26.34 assimilation of duties .… 7.39 categories of entrant .… 7.37, 7.38 co-existence doctrine .… 7.38 content of duty .… 7.39 contractual entrants .… 7.40 dual duty approach .… 7.38 historical background .… 7.37, 7.38, 7.39 landlord’s duty to tenants .… 7.40 public authorities .… 7.39 relationship between parties .… 7.39 skill or knowledge of visitor .… 7.40 special duties .… 7.37, 7.38, 7.39 trespassers .… 7.39, 7.40 omission to act .… 7.17, 7.28 duty to act .… 7.19, 7.20 mere omission .… 7.18 public authorities .… 7.35, 7.36 special relationships .… 7.20 overview .… 7.3, 7.4, 8.1, 8.36 parent–child relationship .… 7.23, 24.16 wrongful acts of children .… 7.28, 24.14

police officers .… 7.26 injury to third parties .… 7.30 prison authorities .… 7.24 injury to third parties .… 7.30 non-delegable duties .… 26.30 proximity .… 7.9, 7.11, 7.13, 7.14 application of test .… 7.10 public authorities .… 7.36 relevant factors .… 7.9 usefulness of test .… 7.10 public authorities .… 7.31, 7.36 antecedent acts .… 7.35, 7.36 occupiers’ liability .… 7.39 omissions .… 7.35, 7.36 planning/operational dichotomy .… 7.32–7.34, 7.36 principles .… 7.31 tort reform measures .… 7.31 ultra vires principle .… 7.34 vulnerability of plaintiff .… 7.36 pure economic loss .… 13.78 contract .… 13.13, 13.14 reasonable foreseeability .… 7.9, 7.12, 7.17 mere omission to act .… 7.18 nervous shock .… 7.45, 7.55 rescuers .… 7.26 recreational activities .… 10.27 rescuers .… 7.25, 7.27 firefighters .… 7.26 good Samaritans .… 7.27 nervous shock .… 7.25, 7.48 police officers .… 7.26

reasonable foreseeability .… 7.26 school authorities .… 7.21, 7.30 injury to third parties .… 7.29 non-delegable duties .… 26.29, 26.56 special relationships .… 7.20 standard of care, and .… 8.11 courts’ approach .… 8.13 motor vehicle drivers .… 8.11, 8.12 obviousness of risk .… 8.12 particularising duty .… 8.12, 8.13 straying animals .… 7.62, 15.1 sub-contractors .… 13.76 testator’s professional adviser .… 13.78 third parties .… 7.28 employer–employee .… 7.30 foreseeability of injury .… 7.28 occupier-entrant .… 7.30 parole boards .… 7.30 parent and child .… 7.28 police officers .… 7.30 prison authorities .… 7.30 school authorities .… 7.29, 7.30 teachers .… 7.29, 7.30 teachers .… 7.21, 7.30 injury to third parties .… 7.29 transport authorities .… 7.7 unborn plaintiffs .… 7.16 volunteers .… 7.61 wrongful birth .… 7.56, 7.58, 7.59 United Kingdom .… 7.59 wrongful life .… 7.56, 7.60

E Easements nuisance .… 14.6, 14.44 Economic analysis law of torts .… 1.20, 1.21 Economic loss see also Pure economic loss insurance .… 1.19 overview .… 13.3 Economic torts action for loss of services see Loss of services attempts at generalisation .… 20.4, 20.5 conspiracy see Conspiracy deceit see Deceit developments in law .… 20.7 distinctions between actions .… 20.2 legislative incursions .… 20.3, 20.4 inducing contract breach see Inducing contract breach injurious falsehood see Injurious falsehood interference with trade see Unlawful interference with trade intimidation see Intimidation overview .… 20.1, 20.6 passing off see Passing off range of torts .… 20.1 Employees see also Loss of services contractor or employee .… 26.1, 26.2, 26.6, 26.11 agents .… 23.35, 26.12 borrowed employees .… 26.9, 26.10 control test .… 26.3, 26.4, 26.9, 26.10 criteria for distinguishing .… 26.3–26.10 hospital staff .… 26.7–26.8

organisation test .… 26.8 relevant factors .… 26.4, 26.5 superannuation contributions .… 26.6 totality of relationship .… 26.4 contributory negligence .… 10.14, 20.21 defamation .… 19.28 nuisance .… 14.38 res ipsa loquitur .… 8.45 voluntary assumption of risk .… 10.25, 10.31 workers’ compensation see Workers’ compensation workplace safety see Workplace health and safety Employers breach of statutory duty .… 16.3, 16.4, 16.6, 16.21 burden on defendant .… 16.18 causation .… 16.31 conduct of defendant .… 16.30 contributory negligence .… 16.35, 16.36, 16.37 dangerous machinery .… 16.27 delegation of duties to employee .… 16.34 duty on defendant .… 16.18 restrictions on availability .… 16.6 specified class .… 16.29 statutory interpretation .… 16.12 voluntary assumption of risk .… 16.33 defences .… 1.8 duty of care .… 7.30, 26.26 non-delegable duties .… 26.2, 26.26, 26.28 liability .… 1.20 loss of services see Loss of services non-delegable duties .… 26.26 employer-employee .… 26.28

independent contractors .… 26.2, 26.26 vicarious liability see Vicarious liability Employment finders of goods .… 4.13 Employment contracts contract of service .… 26.1 contract for services, distinction .… 26.3 inducing breach .… 21.2, 21.3, 21.4, 21.5 continuing breach .… 21.9 termination of employment .… 21.13 Engineers duty of care .… 13.69, 13.71, 13.72 Enticement father’s right of action .… 24.9, 24.10 historical background .… 24.10 marital relationship .… 24.2 Evidence see also Res ipsa loquitur causation .… 9.2 balance of probabilities .… 9.2, 9.3, 9.4 evidentiary onus .… 9.3, 9.4 medical procedures .… 9.3, 9.4 mesothelioma .… 9.3, 9.4 occupiers’ liability .… 9.2 shifting of onus .… 9.3, 9.4 negligence actions .… 8.36, 8.38 conflict of evidence .… 8.40 inferences .… 8.39, 8.40 no evidence rule .… 8.37 Executive acts acts of state .… 6.55 overview .… 6.54

prerogative powers .… 6.56 acquisitions on just terms .… 6.56 Exemplary damages assault and battery .… 27.12 availability .… 27.10, 27.11 criminal liability, and .… 1.6, 27.13 death .… 27.12 deceit .… 23.31 defamation .… 19.82, 27.11 deterrence .… 1.9 fatal accidents legislation .… 27.12 insurance .… 1.9 intentional torts .… 27.11 limitations on award .… 27.12, 27.13 misfeasance in public office .… 25.32 misleading or deceptive conduct .… 23.31 negligent misstatement .… 23.31 overview .… 1.6, 27.10 personal injuries .… 27.10, 27.11 punitive purpose .… 1.6, 27.10 trespass to land .… 5.19, 27.11 vicarious liability .… 26.40 F Fair comment see Honest opinion Fair Trading Act (NZ) misleading or deceptive conduct .… 17.14, 22.1 Crown .… 22.6 Fair trading acts Australian Consumer Law, and .… 22.2 breach of provisions .… 16.1

misleading or deceptive conduct .… 13.20, 17.14, 22.1 Crown .… 22.6 failure to take reasonable care .… 22.36 False imprisonment arrest .… 6.35 questioning without charge .… 6.44 aggravated damages .… 3.37 causation .… 3.34 character of act .… 3.26 assertions of authority .… 3.29 boundaries or barriers .… 3.27, 3.29, 3.33 contractual obligations .… 3.31 indirect acts .… 3.34 initially lawful confinement .… 3.26, 3.32 means of escape .… 3.28 non-physical barriers .… 3.29, 3.33 omissions .… 3.31 partial obstruction .… 3.26 period of detention .… 3.30 place of confinement .… 3.27 solitary confinement .… 3.26 threats of force .… 3.29, 3.33 damages .… 3.37 defences .… 3.34 arrest .… 6.35, 6.44 execution of process .… 6.47 mistake .… 6.2 statutory authority .… 6.49 definition .… 3.24 intention .… 3.25 knowledge of plaintiff .… 3.33

liability .… 3.34, 3.35 indirect acts .… 3.34 interposed judicial acts .… 3.36 malicious prosecution, and .… 3.34, 25.2 negligence .… 3.25 overview .… 3.24 state of mind of defendant .… 3.25 False representations see Deceit Family relations see Marital relationship; Parent and child Fatal accidents legislation basis for recovery .… 11.33 class of claimants .… 11.34 commencement of action .… 11.34, 28.36 contributory negligence .… 11.39 damages .… 11.43, 11.45 acceleration of benefit .… 11.51 apportionment among family .… 11.44 capitalisation of loss .… 11.43 claimant partly at fault .… 11.50 discount rate .… 11.43 exemplary damages .… 27.12 extent of loss suffered .… 11.46–11.48 pecuniary advantage from another .… 11.52 pecuniary advantage from death .… 11.51 reduction of award .… 11.49–11.52 survival of actions .… 11.54, 11.55, 11.56 workers compensation .… 11.48 death of tortfeasor .… 11.60 exemplary damages .… 27.12 historical background .… 11.33 limitation of actions .… 11.39, 28.35

deceased’s right of action .… 28.38 dependants’ right of action .… 28.39 extension of period .… 28.37–28.39 general principles .… 28.36 nature of act .… 11.35, 11.38 contributory negligence .… 11.39 defective goods .… 11.35 misleading or deceptive conduct .… 11.35 remoteness of damage .… 11.36 successive acts of negligence .… 11.37 voluntary assumption of risk .… 11.38 nature of interests protected .… 11.40 class of claimants .… 11.41 financial support of deceased .… 11.41 solatium for grief .… 11.42 overview .… 11.32, 11.32, 11.57, 13.4, 20.11, 28.35 survival of actions, distinction .… 11.57 Financial loss see Economic loss; Pure economic loss Finders of goods conversion .… 4.12, 4.13 course of employment .… 4.13 rights of finder .… 4.12, 4.13 Fire nuisance .… 14.48 Foreign states immunity from liability .… 29.7, 29.8 overview .… 29.7 Fraud consent, by .… 6.7 limitation period .… 28.33 Fraudulent misrepresentation see Deceit

G Good faith breach of implied term .… 1.12 Good Samaritans duty of care .… 7.27 Goods see Chattels; Interference with goods Government bodies see also Public authorities misleading or deceptive conduct .… 22.10 Government employees see Public employees H Harbouring father’s right of action .… 24.9, 24.10 historical background .… 24.10 marital relationship .… 24.2 Highway authorities trespass to land .… 5.7 Highways see also Motor vehicle accidents nuisance .… 14.43, 14.58 public nuisance .… 14.3, 14.55, 14.58 adjoining premises .… 14.56 straying animals .… 7.56, 7.62, 15.4 abolition of rule .… 7.62 duty of care .… 7.62 trespass .… 2.3, 2.4, 2.11 burden of proof .… 2.13, 2.16, 2.18–2.19 trespass to land .… 5.7, 5.8 Hire–purchase agreements bailment .… 4.7 conversion .… 4.7 damages .… 4.37

Honest opinion facts on which opinion based .… 19.16, 19.18, 19.19, 19.21 privileged statements .… 19.23 proof of facts .… 19.22 honesty requirement .… 19.24, 19.25 common law .… 19.27 medical practitioners .… 19.26 reasonableness .… 19.27 overview .… 19.6, 19.13 public interest .… 19.13, 19.14 types of materials .… 19.15 publishers of comment .… 19.28 employees or agents .… 19.28 independent contractors .… 19.29 statements of opinion not fact .… 19.16, 19.17 dishonourable motive .… 19.20 facts on which opinion based .… 19.18, 19.19 reasonable reader .… 19.17 Hospitals non-delegable duties .… 26.7, 26.29 vicarious liability .… 26.7, 26.29 organisation test .… 26.8 part-time engagement .… 26.7 Husband and wife see Marital relationship I Illegal activities defences .… 6.58, 6.59, 10.1 Illegal contracts conversion .… 6.58 defences .… 6.58

Independent contractors contract for services .… 26.1 contract of service, distinction .… 26.3 duty of care .… 13.76 defamation .… 19.29 employee or contractor .… 26.1, 26.2, 26.6, 26.11 agents .… 23.35, 26.12 borrowed employees .… 26.9, 26.10 control test .… 26.3, 26.4, 26.9, 26.10 criteria for distinguishing .… 26.3–26.10 hospital staff .… 26.7–26.8 organisation test .… 26.8 relevant factors .… 26.4, 26.5 superannuation contributions .… 26.6 totality of relationship .… 26.4 nuisance .… 14.38, 26.23 overview .… 26.1 vicarious liability .… 26.2, 26.20, 26.45 agents .… 23.35, 26.12 authorisation to commit tort .… 26.21, 26.22 breach of statutory duty .… 26.23 collateral negligence .… 26.35, 26.36, 26.45 dangerous users of land .… 26.31, 26.32 employee or contractor .… 26.1, 26.2, 26.3–26.11, 26.12 employer’s non-delegable duties .… 26.2, 26.26, 26.28 land developers .… 26.33 negligence by employer .… 26.25 nuisance .… 14.38, 26.23 prison authorities .… 26.30 reasonable care not taken .… 26.24–26.36 Inducing contract breach

accessorial liability .… 21.4, 21.26 acts constituting breach .… 21.8 continuing breach .… 21.9 acts constituting inducement .… 21.11 causation .… 21.12 directors .… 21.14 inconsistent dealings .… 21.16 persuasion or procurement .… 21.12–21.14 prevention of performance .… 21.15 termination of employment .… 21.13 damage requirement .… 21.17 development of tort .… 21.2 expansion of liability .… 21.2, 21.3, 21.4, 21.24, 21.25 historical development .… 21.5 restoration of orthodoxy .… 21.4, 21.26 employment contracts .… 21.2, 21.3, 21.4, 21.5 continuing breach .… 21.9 termination of employment .… 21.13 essential element .… 21.6 expansion of liability .… 21.2, 21.3, 21.4, 21.24 Australian approach .… 21.25 restoration of orthodoxy .… 21.4, 21.26 injunctions .… 21.22 industrial disputes .… 21.23 intentional interference .… 1.11 intimidation, distinction .… 21.31 justification defence .… 21.19 industrial disputes .… 21.18 superior proprietary rights .… 21.19 kinds of contracts .… 21.7 knowledge of contract .… 21.10

loss of services, distinction .… 20.9 overview .… 20.1, 20.2, 20.4, 20.6, 21.2 remedies .… 21.20 damages .… 21.21 injunctions .… 21.22, 21.23 state of mind of defendant .… 21.6 unlawful interference with trade, and .… 21.4, 21.24 Australian approach .… 21.25 void contracts .… 21.7 Industrial disputes see Interference with trade or business Industrial safety legislation see Workplace health and safety Inevitable accident mistake, distinction .… 6.3 overview .… 6.3 Injunctions defamation .… 19.83 discretionary nature .… 14.51, 21.22, 27.51 inducing contract breach .… 21.22 industrial disputes .… 21.23 interlocutory injunctions .… 27.50 defamation .… 19.83 industrial disputes .… 21.23 intimidation .… 21.42 mandatory injunctions .… 27.49 misleading or deceptive conduct .… 22.45, 23.3 nuisance .… 14.5, 14.51 public interest .… 14.52 quia timet actions .… 14.6 overview .… 27.49 prohibitory injunctions .… 27.49 special circumstances .… 14.51

trespass to land .… 5.20 conduct of defendant .… 5.21 preconditions for grant .… 5.22 privacy protection .… 5.1 suppression of after-effects .… 5.22 unconscionability .… 5.22 Injuries see Personal injuries Injurious falsehood damage requirement .… 23.2 damages .… 23.4 definition .… 23.2 development of tort .… 23.2, 23.3 elements .… 22.4, 23.3 false statements .… 23.3, 23.4 misleading or deceptive conduct, and .… 20.3, 20.4, 22.1, 22.3, 22.4, 23.1, 23.3, 23.4 overview .… 20.1, 20.2, 20.6, 22.1, 23.2 Insolvency maintenance and champerty .… 25.38, 25.42 Insurance application of legal rules, and .… 1.15, 1.16 exemplary damages, and .… 1.9 indemnity insurance .… 1.15 overview .… 1.7, 1.8, 1.15 personal injuries .… 1.16, 1.17 gratuitous nursing services .… 1.17 property damage .… 1.18 pure economic loss .… 1.19, 13.17 third party insurance .… 1.15, 1.16 Intellectual handicap see Mental disability Intentional interference with economic interests see Economic torts

Intentional physical harm intention .… 3.22 invasion of privacy .… 3.23 motive .… 3.22 nervous shock .… 3.21, 3.23 overview .… 3.21 proving .… 3.22 scope of action .… 3.23 Interest damages awards .… 27.24, 27.25 common law rule .… 27.26 discretion to award .… 27.28–27.32 judicial developments .… 27.27 legislative developments .… 27.28–27.32 nature of interest .… 27.25 Interference with goods see also Action on the case conversion see Conversion detinue see Detinue historical background .… 4.1, 4.2 negligent interference .… 4.2 overview .… 4.1 remedies .… 4.1, 4.2 trespass see Trespass to goods Interference with trade or business conspiracy see Conspiracy inducing contract breach see Inducing contract breach industrial disputes .… 21.1 statutory provisions .… 21.1 United Kingdom .… 21.1 intimidation see Intimidation overview .… 21.2

unlawful interference .… 20.1, 20.2, 20.4, 20.6, 21.2, 21.24, 21.27 Australian approach .… 21.25, 21.30 elements .… 21.27 expansion of liability .… 21.2, 21.3, 21.4, 21.24, 21.25 inducing contract breach, and .… 21.4, 21.24, 21.25 intention to cause loss .… 21.27, 21.29, 21.30 primary liability .… 21.4, 21.26 scope of tort .… 21.28 wrongful interference .… 21.27, 21.28, 21.30 International conventions civil aviation compensation .… 12.40, 12.42 Intimidation conspiracy, distinction .… 21.31 elements of action .… 21.32 compliance with demand .… 21.39 threat coupled with demand .… 21.33–21.35 unlawful or illegal act .… 21.36–21.38 inducing contract breach, distinction .… 21.31 justification defence .… 21.40 overview .… 20.1, 20.2, 20.4, 20.6, 21.2, 21.31 remedies .… 21.41 damages .… 21.41 injunctions .… 21.42 threat coupled with demand .… 21.33, 21.58 actions .… 21.34 coercion .… 21.33, 21.34, 21.38 compliance with demand .… 21.39 made personally to plaintiff .… 21.35 oral expression .… 21.34 unlawful or illegal act .… 21.36 breach of contract .… 21.36, 21.37, 21.38

Intoxication contributory negligence .… 10.9, 10.12, 10.28 motor vehicle passengers .… 10.12 motor vehicle drivers .… 10.12, 10.28 no-fault compensation schemes .… 12.25, 12.32, 12.37 voluntary assumption of risk .… 10.28, 10.30 Invasion of privacy see Privacy J Joint illegal activities defences .… 6.59, 10.1 duty of care .… 6.59 Joint ownership conversion .… 4.34 Joint tenants trespass to land .… 5.12 Joint tortfeasors conspiracy .… 21.52 Judge and jury malicious prosecution .… 25.9, 25.10 negligence actions .… 8.36 no evidence rule .… 8.37 standard of proof .… 8.38 Judgment effect of final judgment .… 28.44 res judicata .… 28.44 Judicial immunity acting outside jurisdiction .… 6.51 distinction between courts .… 6.51, 6.52 misuse of process see Misuse of process overview .… 6.51, 25.1

scope of immunity .… 6.51, 25.1 Judicial proceedings absolute privilege .… 19.23, 19.33, 19.36 communications .… 19.34 documents .… 19.34 Royal Commissions .… 19.33 scope of privilege .… 19.33 tribunals .… 19.33 Judicial proceedings reports qualified privilege .… 19.41 Jus tertii conversion .… 4.14 bailment .… 4.14, 4.15 detinue .… 4.57 overview .… 4.14 trespass to goods .… 4.51 trespass to land .… 5.14 Justification defamation .… 19.2, 19.3 accuracy of statement .… 19.3 accurate repetition to third person .… 19.5 common sting .… 19.11 completeness of defence .… 19.7 contextual truth .… 19.12 criminal offences .… 19.4, 19.8 evidence after publication .… 19.7 fact and opinion .… 19.6 inferences and innuendoes .… 19.3 meaning of statement .… 19.9 minor criminal convictions .… 19.8 several imputations .… 19.10, 19.11

inducing contract breach .… 21.19 industrial disputes .… 21.18 superior proprietary rights .… 21.19 intimidation .… 21.40 K Knowledge false imprisonment .… 3.33 reasonable person .… 8.21 expert knowledge .… 8.23 memory and experience .… 8.21, 8.22 surrounding facts and circumstances .… 8.22 voluntary assumption of risk .… 10.20, 10.30 L Land see also Nuisance; Occupiers’ liability actions by reversioners .… 5.23 goods left on land .… 4.31 trespass to land see Trespass to land Land developers non-delegable duties .… 26.33 Landlords see also Tenants distress for rent .… 6.27 nuisance .… 14.33, 14.35 authorisation of nuisance .… 14.37 lack of repairs .… 14.42 occupier’s duty to tenants .… 7.40 re-entry on land .… 6.25 remedies .… 5.23 Landowners non-contractual notices of exculpation .… 10.24 Liability see Occupier’s liability; Professional liability schemes

Libel see Defamation Licensees conversion .… 4.11 Liens conversion .… 4.9, 4.27 Limitation of actions actions in both tort and contract .… 27.46 breach of contract .… 27.46 commencement of period .… 22.52, 28.8 aggravated injuries .… 28.19, 28.20 childhood sexual abuse .… 28.14 continuing torts .… 28.21 deceased estates .… 28.8 defective buildings .… 28.15 defectively drawn documents .… 28.16 exceptions and limitations .… 28.11 extension of period .… 28.12 general principles .… 28.8 negligent misrepresentation .… 28.17 negligent omissions .… 28.18 personal injuries .… 28.13, 28.19, 28.20 successive occurrence of damage .… 28.20 torts actionable per se .… 28.9 torts derived from case .… 28.10–28.21 conflict of laws, and .… 28.40, 28.41 contribution between tortfeasors .… 28.34 conversion .… 4.42 death .… 28.42 defamation .… 28.6 defective buildings .… 28.5 commencement of period .… 28.15

detinue .… 4.62 disability of plaintiff .… 28.30 effect of disability .… 28.32 nature of disability .… 28.31 extension of period .… 28.12, 28.22 Australian Capital Territory .… 28.24, 28.25 childhood sexual abuse .… 28.14 fatal accidents legislation .… 28.37–28.39 fraud and concealment .… 28.33 New South Wales .… 28.24, 28.25 New Zealand .… 28.29 Northern Territory .… 28.23 Queensland .… 28.27 South Australia .… 28.23 Tasmania .… 28.28 Victoria .… 28.24, 28.25 Western Australia .… 28.26 fatal accidents legislation .… 11.39, 28.35 deceased’s right of action .… 28.38 dependants’ right of action .… 28.39 extension of period .… 28.37–28.39 general principles .… 28.36 fraud and concealment .… 28.33 minors .… 28.30, 28.31 effect of disability .… 28.32 sexual abuse .… 28.14 negligence and trespass .… 2.8, 2.10, 2.24 overview .… 22.52, 28.1, 28.2 period of limitation .… 28.3 civil aviation actions .… 28.7 commencement .… 22.52, 28.8–28.21

defamation actions .… 28.6 defective buildings .… 28.5 personal injuries .… 28.4 personal injuries .… 28.4 aggravated injuries .… 28.19, 28.20 civil aviation .… 28.7 commencement of period .… 28.13 definition .… 28.4 purpose of legislation .… 28.2 trespass and negligence .… 2.8, 2.10, 2.24 Local authorities certificates of occupancy and use .… 13.74, 13.75 negligent misrepresentation .… 13.74 duty of care .… 13.73, 13.75 misfeasance in public office .… 25.30 misleading or deceptive conduct .… 22.10 Loss of consortium abolition of action .… 24.3, 24.6 availability of action .… 24.3 damages .… 24.4, 24.5 material and temporal loss .… 24.5 medical and nursing expenses .… 24.5 partial fault of wife .… 24.4 developments in law .… 1.12 nervous shock .… 24.4 overview .… 1.12, 24.3 physical injuries .… 24.4 pure economic loss .… 24.3 statutory modifications .… 24.3 Loss of services actio per quod servitium amisit .… 20.8

abolition of action .… 20.10 argument for abolition .… 20.22–20.25 availability of action .… 20.10 breach of contract, distinction .… 20.9 damages .… 20.11, 20.17 contributory negligence .… 20.21 large business .… 20.19, 20.25 small business .… 20.18 workers’ compensation .… 20.20 death of employee .… 20.11 derivative action .… 20.23 development of tort .… 20.8, 20.9 future of tort .… 20.11, 20.22 arbitrariness .… 20.24 argument for abolition .… 20.22–20.25 derivative action .… 20.23 relevance of tort .… 20.26 liability in negligence, and .… 20.11 nature of relationship .… 20.11, 20.12 contract of service .… 20.13 directors .… 20.13 domestic partners .… 20.15 employee and employer relationship .… 20.14 master and servant .… 20.13 public sector .… 20.13, 20.16 spouses .… 20.15 overview .… 20.1, 20.2, 20.4, 20.6, 20.8, 24.11 parents right of action .… 24.11, 24.13 M Maintenance and champerty

abolition of torts .… 25.33 assignment of cause of action .… 25.41, 27.41, 29.22 bankruptcy .… 25.38, 25.42 champerty, meaning .… 25.33 conduct constituting .… 25.35 advancement of credit .… 25.36 assistance by legal practitioners .… 25.37 payments fixed to damages awards .… 25.36, 25.37 contracts .… 25.33 criminal proceedings .… 25.34 elements .… 25.34 insolvency .… 25.38, 25.42 justification and exception .… 25.38 aid to the impecunious .… 25.39 assignment of cause of action .… 25.41 bankruptcy .… 25.38, 25.42 bona fide interest in proceedings .… 25.40 insolvency .… 25.38, 25.42 officious intermeddling .… 25.34 litigation funding agreements .… 25.33 maintenance, meaning .… 25.33 overview .… 25.33 special damage requirement .… 25.43 Malice battery .… 3.5 false imprisonment .… 3.25 meaning .… 25.14 nuisance .… 14.23, 14.24 Malicious prosecution absence of reasonable and probable cause .… 25.7, 25.13 discharging the onus .… 25.11–25.12

disputed facts .… 25.10 honest belief .… 25.8 interpretation .… 25.8 judge’s functions .… 25.9, 25.10 jury’s function .… 25.9, 25.10 malice, and .… 25.15 mistaken view of law .… 25.12 several charges .… 25.12 state of mind of defendant .… 25.11 sufficiency of inquiry .… 25.11 categories of damage .… 25.16 bankruptcy petitions .… 25.17 civil proceedings .… 25.17, 25.21 costs .… 25.20 exclusions .… 25.17, 25.18 person, to .… 25.19 property damage .… 25.20, 25.21 reputation of plaintiff .… 26.17, 25.18 collateral abuse of process, distinction .… 25.23 conviction of plaintiff .… 25.6 damage requirement .… 25.16 damages .… 26.16, 25.26 defamation, and .… 25.2, 25.17 elements .… 25.2 false imprisonment, and .… 3.34, 25.2 favourable termination of proceedings .… 25.5, 25.6 proof by plaintiff .… 25.5 function of tort .… 25.2 institution of proceedings .… 25.3 deemed responsibility .… 25.4 defendant’s conduct .… 25.4

false statements and false witnesses .… 25.3 time of institution .… 25.4 vicarious liability .… 25.4 legal advisers .… 25.4 malice requirement .… 25.13 malice, meaning .… 25.14 reasonable and probable cause, and .… 25.15 overview .… 25.2 Manufacturers consumer products .… 1.20 defective goods .… 11.35, 13.64 contribution between tortfeasors .… 29.32 duty of care .… 7.5 Marital relationship enticement .… 24.2 entitlement to sue one another .… 29.15 harbouring .… 24.2 husband’s proprietary interest in wife .… 24.2, 24.3 loss of consortium .… 24.3 abolition of action .… 24.3, 24.6 availability of action .… 24.3 damages .… 24.4, 24.5 nervous shock .… 24.4 physical injuries .… 24.4, 24.5 pure economic loss .… 24.3 statutory modification .… 24.3 overview .… 24.1, 24.2, 29.15 Medical and hospital expenses damages .… 11.13, 11.18 gratuitous care .… 1.17, 11.15, 11.16, 11.17 home care .… 11.15

institution costs .… 11.14 loss of consortium .… 24.5 special damages .… 11.13 no-fault accident compensation .… 12.30, 12.35 parents right of action .… 24.12, 24.13 workers’ compensation .… 12.10 Medical practitioners defamation defences .… 19.26 doctor–patient relationship .… 7.22 duty of care .… 7.22 standard of care .… 8.2, 8.26, 8.27 general practice .… 8.34, 8.35 Medical treatment accident compensation (NZ) .… 12.47 causation .… 9.3, 9.4, 9.5 unreasonable subsequent acts .… 9.15 consent .… 6.8, 8.2 mental disability .… 6.10 minors .… 6.9 temporary incapacity .… 6.10 failure to warn .… 6.8 mitigation of damage .… 27.19 necessity .… 6.22 wrongful birth .… 7.56, 7.58, 7.59 New Zealand .… 12.45 United Kingdom .… 7.59 wrongful life .… 7.56, 7.60 Mental disability battery .… 3.6 consent .… 6.10 defences .… 29.16

effect on liability .… 29.16 limitation period .… 28.30, 28.31 effect of disability .… 28.32 overview .… 29.16 standard of care .… 8.17 motor vehicle drivers .… 8.18, 8.19 physical mental division .… 8.18 Mental harm see also Nervous shock criminal injuries compensation .… 12.15 developments in law .… 1.12 overview .… 7.41 Mesothelioma causation .… 9.3, 9.4 Military operations duty of care .… 29.6 liability of Crown .… 29.6 Military personnel immunity from civil suit .… 6.57 Minors see also Parent and child; School authorities age of majority .… 29.17 breach of contract .… 4.59, 29.17, 29.19 capacity to sue .… 29.17 consent .… 6.9 medical procedures .… 6.9 contracts .… 29.19 contributory negligence .… 8.15, 10.9, 10.11 damages .… 27.43 earning capacity, loss .… 11.10, 11.11 detinue, and .… 4.59 duty of care .… 7.23 loco parentis .… 7.23

limitation period .… 28.30, 28.31 effect of disability .… 28.32 sexual abuse .… 28.14 overview .… 29.17 sexual abuse .… 26.54, 28.14 limitation period .… 28.14 vicarious liability .… 26.54, 26.55, 26.56 standard of care .… 8.1, 8.3, 8.15, 8.16, 29.17, 29.18 contributory negligence .… 10.11 objective standard .… 8.16 physical mental division .… 8.18 trespass .… 29.18 Misfeasance in public office bad faith .… 25.28, 25.31 failure to act .… 25.31 intention to harm .… 25.31 knowledge of consequences .… 25.31 damage or loss .… 25.27, 25.28, 25.32 development of tort .… 25.27 elements .… 25.28 exemplary damages .… 25.32 holder of public office .… 25.28, 25.29 body corporate .… 25.30 government employees .… 25.29 local councils .… 25.30 Ministers of the Crown .… 25.29 police officers .… 25.29 public nature of position .… 25.29 statutory corporations .… 25.30 intention to cause harm .… 25.28, 25.31 judicial officers .… 25.27

overview .… 25.27 scope of liability .… 25.27 Misleading or deceptive conduct agents .… 23.37 applicable entities .… 22.5 corporation, definition .… 22.5 Crown .… 22.6 trading or financial corporations .… 22.5 application of law .… 22.3, 22.5 basis of liability .… 22.4, 23.9, 23.21 applicable entities .… 22.5, 22.6 intention or negligence .… 22.4 trade or commerce .… 22.6, 22.7–22.10 causal connection .… 22.27, 22.48, 23.24, 23.34 conduct constituting .… 22.11 denigration of plaintiff’s business .… 22.12–22.15, 23.10 misleading business relationships .… 22.16–22.25 statements relied on by plaintiff .… 22.26–22.43 corporations .… 22.5, 22.53 definition .… 22.5 trading or financial corporations .… 22.5 contract negotiations .… 22.8 subsequent exclusion clauses .… 22.43 Crown .… 22.6 damages .… 22.46, 23.3, 23.4, 23.30 causal connection .… 22.48 exemplary damages .… 23.31 extent of liability .… 22.49, 22.50, 23.30 inducement of plaintiff .… 22.50 limitation period .… 22.51, 22.52 loss recoverable .… 22.47

other liable persons .… 22.53 deceit, and .… 20.3, 20.4, 22.1, 22.3, 22.4, 22.30, 23.1, 23.12, 23.12, 23.40 agents .… 23.37 causation .… 23.34 checking of statement .… 23.41 disclaimers of liability .… 23.27 exemplary damages .… 23.31 losses recoverable .… 23.30 nature of misstatement .… 23.20 qualification of statement .… 23.41 scope of liability .… 23.24 state of mind of defendant .… 23.21 vicarious liability .… 23.37 written requirement .… 23.39 defamation .… 17.14, 17.15 circumstances for use .… 17.16 restrictions on application .… 17.15, 17.16 denigration of plaintiff’s business .… 22.12 comparative advertising .… 22.15 exaggerated claims .… 22.14 false statements .… 22.13 disclaimers .… 22.25, 22.41, 23.27 contract negotiations .… 22.43 qualifying original statement .… 22.42, 23.27 failure to speak .… 22.26, 22.37, 23.20 change in circumstances .… 22.38 correction of mistake .… 22.40 misleading impressions .… 22.39 fair trading acts .… 13.20, 17.14,\ 22.1 Crown .… 22.6 failure to take reasonable care .… 22.36

New Zealand .… 17.14, 22.1, 22.6 fatal accidents legislation .… 11.35 injunctions .… 22.45, 23.3 injurious falsehood, and .… 20.3, 20.4, 22.1, 22.3, 22.4, 23.1, 23.3, 23.4 misleading business relationships .… 22.16, 22.22, 23.11 confusion .… 22.23 disclaimers .… 22.25 similarity in public presentation .… 22.17–22.20, 22.22 target of conduct .… 22.24 unauthorised use of plaintiff’s personality .… 22.21, 22.22 uncertainty .… 22.23 negligent misstatement, distinction .… 23.20 overview .… 1.11, 13.20, 17.14, 20.3, 20.6, 22.1, 22.2, 22.34, 23.8 passing off, and .… 20.3, 20.4, 22.1, 22.3, 22.4, 23.1, 23.8, 23.9, 23.10, 23.11 predictions .… 22.28, 22.32, 22.34 criminal liability, and .… 22.32, 22.33 lack of reasonable belief .… 22.32, 22.33 state of mind of maker .… 22.33 remedies .… 22.4, 22.44 compensatory orders .… 22.54 damages .… 22.46–22.53, 23.3, 23.4 injunctions .… 22.45, 23.3 scope of liability .… 23.24 similarity in public presentation .… 22.16, 22.17, 22.22 get-up .… 22.18 verbal identification .… 22.19, 22.20 statements relied on by plaintiff .… 22.26, 22.27, 23.3, 23.40 ability to check .… 22.36 causal connection .… 22.27, 22.48 classification of statements .… 22.28, 22.31, 23.20

disclaimer of liability .… 22.41–22.43, 23.27 extravagant descriptions .… 22.35 failure to speak .… 22.37–22.40, 23.20 failure to take reasonable care .… 22.36 false statements .… 22.30, 22.32 predictions .… 22.28, 22.32–22.34 qualifying original statement .… 22.42, 23.27, 23.41 reasonable reliance .… 22.27, 22.28, 22.31, 22.35, 23.20 statements of existing fact .… 22.28, 22.29, 22.31 statements of opinion .… 22.28, 22.30, 22.31 trade or commerce .… 22.7, 23.4, 23.8, 23.12, 23.20 contract negotiations .… 22.8 Crown .… 22.6 freedom to express opinion .… 22.10 government bodies .… 22.10 included activities .… 22.7, 22.9 intangibles .… 22.5 isolated transactions .… 22.8 meaning .… 22.7 professional persons .… 22.9 vicarious liability .… 23.37 written requirement .… 23.39 Misrepresentations see Deceit; Misleading or deceptive conduct; Negligent misstatements; Passing off Mistake conversion .… 1.5, 4.18, 4.30 inevitable accident, distinction .… 6.3 malicious prosecution .… 25.12 overview .… 6.2 trespass to land .… 5.10, 6.2 Misuse of process

collateral abuse of process .… 25.22, 25.25 civil liability immunity, distinction .… 25.24 damages .… 25.26 essence of tort .… 25.25 improper purpose .… 25.25 malicious prosecution, distinction .… 25.23 stay of proceedings, distinction .… 25.22 maintenance and champerty see Maintenance and champerty malicious prosecution see Malicious prosecution misfeasance in public office see Misfeasance in public office overview .… 25.1 Mitigation of damage see Damages Motor vehicle accidents see also No-fault compensation schemes causation .… 9.2 contributory negligence .… 10.7 imputed contributory negligence .… 10.14 intoxication .… 10.12, 10.28 minors .… 10.11 reasonable care .… 10.10 statutory modification .… 10.8 types of injury .… 10.8 fatal accidents legislation .… 11.60 intoxication .… 10.12, 10.28 knowledge of risk .… 10.30 no-fault compensation schemes .… 12.25, 12.32, 12.37 voluntary assumption of risk .… 10.28, 10.30 parent and child relationship .… 24.15 standard of care .… 8.12 contributory negligence .… 10.10, 10.11, 10.12 failure to wear seatbelts .… 8.3 third parties .… 8.32

survival of actions .… 11.60 third party insurance .… 1.15, 1.16 voluntary assumption of risk .… 10.28 Motor vehicle drivers intoxication .… 10.12, 10.28 knowledge of risk .… 10.30 no-fault compensation schemes .… 12.25, 12.32, 12.37 voluntary assumption of risk .… 10.28, 10.30 non-contractual notices of exculpation .… 10.24 standard of care .… 1.15, 1.16, 8.11, 8.12 contributory negligence .… 10.12 emergency vehicles .… 8.7 mental or physical disability .… 8.18, 8.19 third parties .… 8.32 vicarious liability .… 26.16 imposition of liability .… 26.17 no-fault compensation schemes .… 26.18 property damage .… 26.19 rebuttable presumption .… 26.17 Multiple tortfeasors categories of tortfeasors .… 29.24 differences between .… 29.28, 29.29 consent judgments .… 29.30 contribution between tortfeasors .… 28.34, 29.31 actions in tort and contract .… 27.40, 29.32 amount recoverable .… 29.36–29.41 breach of occupancy duties .… 29.37 breach of statutory duty .… 29.38 entitlement to claim .… 29.33 insurance companies .… 29.35 liability for claims .… 29.34, 29.35

limit to amount .… 29.41 limitation period .… 28.34 scope of legislation .… 29.32 strict liability .… 29.38 vicarious liability .… 29.39, 29.40 joint tortfeasors .… 29.24, 29.25, 29.28, 29.29 concerted action to a common end .… 29.25 release of tortfeasor .… 29.28 several concurrent tortfeasors, distinction .… 29.28 more than one action .… 29.30 occupiers’ liability .… 29.25, 29.37 overview .… 29.24, 29.30 proportionate liability .… 29.42 several concurrent tortfeasors .… 29.24, 29.26, 29.28, 29.29 joint tortfeasors, distinction .… 29.28 release of tortfeasor .… 29.28 several tortfeasors causing different damage .… 29.24, 29.27 joint and several tortfeasors, distinction .… 29.29 N Necessity defence of property, distinction .… 6.20 justifiable actions .… 6.21, 6.23 medical treatment .… 6.22 negligent acts .… 6.23 overview .… 6.20, 6.21 private sector, in .… 6.22 public sector, in .… 6.22 scope of defence .… 6.21 self-defence, distinction .… 6.20 Negligence see also Contributory negligence

animals .… 7.62, 15.1, 15.11, 15.20 battery, and .… 3.2 breach of duty see Breach of duty burden of proof .… 8.38 causation see Causation continuing wrong .… 28.21 damage requirement .… 2.21, 9.1 defences see Contributory negligence; Voluntary assumption of risk duty of care see Duty of care elements .… 7.3 false imprisonment .… 3.25 historical background .… 7.1, 7.2 interference with goods .… 4.2 judge and jury .… 8.36 no evidence rule .… 8.37 standard of proof .… 8.38 law and fact .… 8.36 meaning .… 7.3 mentally disabled persons .… 29.16 nuisance, and .… 7.1, 7.2, 14.2 occupiers’ liability .… 7.38 overview .… 7.1, 7.3 personal injuries see Damages proving negligence .… 8.36 conflict of evidence .… 8.40 discharging burden .… 8.38 inferences .… 8.39, 8.40 matters of fact and law .… 8.36 no evidence rule .… 8.37 res ipsa loquitur .… 8.41 standard of proof .… 8.38

public nuisance .… 14.3, 14.57 remoteness of damage see Remoteness of damage standard of care see Standard of care trespass, and .… 2.1, 2.6, 2.20, 7.1, 7.2 advantages and disadvantages .… 2.20–2.24 Australian position .… 2.3, 2.6, 2.10, 2.11 avoidance of overlap .… 2.8, 2.9 burden of proof .… 2.6, 2.13–2.19, 2.20 damage requirement .… 2.21 highway cases .… 2.3, 2.4, 2.11, 2.13, 2.16, 2.18–2.19 historical background .… 2.7, 2.8 lack of care, meaning .… 2.22 limitation of actions .… 2.8, 2.10, 2.24 New Zealand position .… 2.12 non-highway cases .… 2.3, 2.4, 2.11, 2.13–2.17 remoteness of damage .… 2.23 trespass to goods .… 4.47 vicarious liability see Vicarious liability Negligent acts or omissions damage to another’s property .… 13.44, 13.45 additional transport costs .… 13.45 ambit of persons affected .… 13.50 business competition, and .… 13.51 contaminated cattle .… 13.50 disruption to power supply .… 13.46, 13.52, 13.53 duty of care .… 13.47, 13.49, 13.50 infected seed .… 13.48, 13.49, 13.51 loss of production and profits .… 13.46 vulnerability of plaintiffs .… 13.52, 13.53, 13.54 damage to plaintiff’s property .… 13.44, 13.55 causation .… 13.57

criticism of principle .… 13.61, 13.62 general principle .… 13.55, 13.56, 13.57 possessory or proprietary interest .… 13.55, 13.58, 13.59 defective buildings .… 13.6, 13.44, 13.63, 13.66 architects .… 13.71, 13.72 builders .… 13.68, 13.70, 13.72 engineers .… 13.69, 13.71, 13.72 exclusion clauses .… 13.72 local authorities .… 13.73–13.75 reliance on skill .… 13.67, 13.68 statutory warranties .… 13.70 sub-contractors .… 13.72 defective goods .… 13.63 latent defects .… 13.65 manufacturer’s liability .… 13.64 duty of care .… 13.47, 13.49, 13.50, 13.78 architects .… 13.71, 13.72 builders .… 13.68, 13.72 engineers .… 13.69, 13.71, 13.72 local authorities .… 13.73, 13.75 sub-contractors .… 13.76 limitation period .… 28.18 negligent misstatements, distinction .… 13.18 overview .… 13.18, 13.44 pure economic loss .… 1.19, 13.1, 13.6, 13.44 damage to another’s property .… 13.45 damage to plaintiff’s property .… 13.55 defective property .… 13.63 wills .… 13.77, 13.79 adviser/beneficiary relationship .… 13.78 limitation of liability .… 13.79

duty of care .… 13.78 Negligent misstatements see also Misleading or deceptive conduct agents .… 23.36 breach of duty .… 13.19 causation .… 13.37, 13.38, 23.33 external factors .… 13.39 common law .… 13.19 developments .… 13.19 overlap with statute .… 13.20 conduct constituting .… 13.31, 23.19, 23.21 disclaimer of liability .… 13.36 failure to speak .… 13.34, 13.35 imputed duty to inform .… 13.35 information or advice .… 13.32 reasonable reliance .… 13.33, 13.35, 13.36 statements .… 13.32, 13.33 contributory negligence .… 13.42 damages .… 13.41, 23.29 exemplary damages .… 23.31 deceit, comparison .… 23.17, 23.42 agents .… 23.36 causation .… 23.33 disclaimers of liability .… 23.26 exemplary damages .… 23.31 losses recoverable .… 23.29 nature of misrepresentation .… 23.19 scope of liability .… 23.23 state of mind of defendant .… 23.21 vicarious liability .… 23.36 written requirement .… 23.39 developments in law .… 13.19

disclaimers of liability .… 13.36, 23.26 duty of care .… 7.38, 13.19, 13.21, 13.24, 23.23 accountants .… 13.27, 13.28 auditors .… 13.27, 13.28 indirect reliance .… 13.30 intention to induce .… 13.29 knowledge of communication .… 13.29 oral statements .… 13.22 persons owed duty .… 13.24–13.30, 23.23 reasonable reliance .… 13.22, 13.23, 13.28 reliance on certificates .… 13.26 responses to requests .… 13.23, 13.25 extent of liability .… 13.37 causation .… 13.38, 13.39 contributory negligence .… 13.42 damages .… 13.41 professional liability schemes .… 13.43 remoteness of damage .… 13.40 failure to speak .… 13.35, 23.20 information and advice, distinction .… 13.32, 22.30, 23.19 limitation period .… 28.17 local authorities .… 13.74 misleading or deceptive conduct, distinction .… 23.20 nature of misrepresentation .… 23.19 negligent acts, distinction .… 13.18 overview .… 13.18, 13.19, 23.12 pure economic loss .… 1.19, 13.1, 13.6 reasonable reliance .… 13.18, 13.22, 13.28, 13.33, 23.19, 23.23 disclaimer of liability .… 13.36 failure to speak .… 13.35 indirect reliance .… 13.30

realisation of reliance .… 13.23 remoteness of damage .… 13.37, 13.40 statutory provisions .… 13.20 vicarious liability .… 23.36 written requirement .… 23.39 Negotiable instruments conversion .… 4.16, 4.29 damages .… 4.38 Nervous shock basis of liability .… 7.45 civil liability legislation .… 7.42, 7.44, 7.45 relationship between victims .… 7.49 secondary victims .… 7.48 voluntary acceptance of risk .… 7.54 criminal injuries compensation .… 12.15 development of law .… 1.12, 7.43 High Court approach .… 7.44 primary victims .… 7.43 secondary victims .… 7.43 ‘egg-shell skull rule’ .… 7.52 factors to consider .… 7.46 contributory negligence .… 7.53 direct perception of events .… 7.48, 7.49 extent of mental harm .… 7.52 pre-existing relationship .… 7.50, 7.51 psychiatric illness resulting from shock .… 7.47 relationship between plaintiff and defendant .… 7.50, 7.51 relationship between victims .… 7.49 voluntary acceptance of risk .… 7.54 intentional physical harm .… 3.21, 3.23 loss of consortium .… 24.4

overview .… 7.41 primary victims .… 7.43, 7.49 contributory negligence .… 7.53 property damage .… 7.55 reasonable foreseeability .… 7.45 property damage .… 7.55 recognisable psychiatric injury .… 7.42 remoteness of damage .… 9.8 rescuers .… 7.25, 7.48 secondary victims .… 7.43, 7.48 relationship with primary victim .… 7.49 threshold test .… 7.42 use of phrase .… 7.42 New South Wales no-fault compensation scheme .… 12.20, 12.38 actions to recover liability .… 12.39 benefits available .… 12.38 common law claims .… 12.39 statutory qualified privilege .… 19.58, 19.61, 19.65 common law, and .… 19.60 recipient’s interest .… 19.59, 19.60 New Zealand accident compensation .… 12.43, 16.5 adverse medical treatment .… 12.47 amounts of compensation .… 12.48 benefits available .… 12.44, 12.47 common law claims .… 12.44 development of scheme .… 12.43 funding of scheme .… 12.44 gradual process, disease or infection .… 12.46 personal injuries .… 12.45–12.47

purpose of legislation .… 12.44 surviving dependants .… 12.49 trespass to person .… 2.5 visitors to New Zealand .… 12.47 breach of statutory duty .… 16.5 criminal injuries compensation .… 12.12 defamation .… 17.3, 17.4, 17.6 constitutionally protected privilege .… 19.66 justification defence .… 19.2 offer of amends .… 19.69 limitation period .… 28.29 disability of plaintiff .… 28.32 misleading or deceptive conduct .… 17.14, 22.1, 22.6 trespass .… 2.5 negligence, and .… 2.12 wrongful birth .… 12.45 No-fault compensation schemes New South Wales .… 12.20, 12.38 actions to recover liability .… 12.39 benefits available .… 12.38 common law claims .… 12.39 Northern Territory .… 12.20, 12.34, 26.18 benefits available .… 12.34 funeral benefits .… 12.36 intoxication of driver .… 12.37 loss of earning capacity .… 12.35 medical expenses .… 12.35 rehabilitation costs .… 12.35 surviving dependants .… 12.36 unlicensed drivers .… 12.37 overview .… 12.20, 26.18

Tasmania .… 12.20, 12.27 benefits available .… 12.27 burial or cremation costs .… 12.31 common law claims .… 12.33 criminal conviction of driver .… 12.32 employees .… 12.28 household services .… 12.29 intoxication of driver .… 12.32 medical and hospital expenses .… 12.30 rehabilitation costs .… 12.30 self-inflicted injuries or death .… 12.32 surviving dependants .… 12.31 vicarious liability .… 26.18 Victoria .… 12.20, 12.21 benefits available .… 12.21 common law claims .… 12.26 criminal conviction of driver .… 12.25 failure to report .… 12.25 impairment of bodily functions .… 12.23, 12.25 intoxication of driver .… 12.25 loss of earning capacity .… 12.22, 12.25, 12.26 surviving spouse or children .… 12.24 Non-negotiable instruments conversion .… 4.17 Northern Territory no-fault compensation scheme .… 12.20, 12.34, 26.18 benefits available .… 12.34 funeral benefits .… 12.36 intoxication of driver .… 12.37 loss of earning capacity .… 12.35 medical expenses .… 12.35

rehabilitation costs .… 12.35 surviving dependants .… 12.36 unlicensed drivers .… 12.37 Nuisance see also Public nuisance abatement of nuisance .… 6.26, 14.53 aircraft .… 5.9 animals .… 15.1, 15.11, 15.20 cattle trespass, distinction .… 15.2 conduct of defendant .… 14.20 impracticability of prevention or avoidance .… 14.28 locality .… 14.25 malice .… 14.23, 14.24 natural things on land .… 14.27 ordinary use of land .… 14.26 purpose of activity .… 14.21–14.24 social utility .… 14.22 conduct of plaintiff .… 14.45 consent .… 14.45 continuing nuisance .… 14.50, 28.21 contributory negligence .… 14.45 creation of nuisance .… 14.36 authorisation of nuisance .… 14.37 employees .… 14.38 independent contractors .… 14.38, 26.23 state of affairs .… 14.39 vicarious liability .… 14.38, 26.23 damage requirement .… 14.6, 27.15 exceptions .… 14.6 damages .… 14.34, 14.49, 27.6, 27.15 chattels .… 14.34 continuing nuisance .… 14.50

personal injuries .… 14.34 defences .… 14.45 abatement .… 6.26, 14.53 conduct of plaintiff .… 14.45 defence of property .… 14.47 easement by prescription .… 14.44 fire .… 14.48 necessity .… 14.47 statutory authority .… 14.46 easements .… 14.6, 14.44 failure to remedy .… 14.40, 14.41 development of liability .… 14.40 fault .… 14.2 highways .… 14.43, 14.58 injunctions .… 14.5, 14.51 public interest .… 14.52 quia timet actions .… 14.6 landlords .… 14.33, 14.35 authorisation of nuisance .… 14.37 lack of repairs .… 14.42 liability in nuisance .… 14.35 creation of nuisance .… 14.36–14.39 failure to remedy .… 14.40–14.41 landlords .… 14.37, 14.42 tenants .… 14.37, 14.42 meanings .… 14.1 nature of act .… 14.7 physical injury to land .… 14.8–14.10 property rights .… 14.18 substantial interference .… 14.10–14.17 negligence, and .… 7.1, 7.2, 14.2

origin of interference .… 14.43 overview .… 14.1 physical injury to land .… 14.7, 14.8 locality .… 14.9, 14.9 property, meaning .… 14.9 reasonable precautions .… 14.10 sensible material injury to property .… 14.8, 14.9 property rights .… 14.2, 14.7, 14.18 public nuisance, distinction .… 14.3, 14.58 remedies .… 14.5 abatement .… 14.53 damages .… 14.34, 14.49–14.50 injunctions .… 14.5, 14.51, 14.52 scope of concept .… 14.1 seriousness of interference .… 14.20 avoidance of consequences .… 14.32 character of harm .… 14.30 extent of harm .… 14.29 locality .… 14.31 standing to sue .… 14.33 damages .… 14.34 substantial interference .… 14.2, 14.7, 14.10, 14.11, 14.19 duration of interference .… 14.14 examples .… 14.11 locality .… 14.15 origin of interference .… 14.43 sensitive and delicate operations .… 14.12 state of affairs .… 14.16, 14.17 trivial interference .… 14.11 unprotected interferences .… 14.13 telephone calls .… 14.43

tenants .… 14.33, 14.35 lack of repairs .… 14.42 unauthorised use of premises .… 14.37 trespass, and .… 14.4 unreasonableness .… 14.19, 14.20 avoidance of consequences .… 14.32 character of harm .… 14.30 conduct of defendant .… 14.21–14.28 conflict of interests .… 14.19 extent of harm .… 14.29 impracticability of prevention or avoidance .… 14.28 locality .… 14.25, 14.31 natural things on land .… 14.27 objective test .… 14.20 ordinary use of land .… 14.26 purpose of activity .… 14.21–14.24 seriousness of interference .… 14.29–14.32 vicarious liability .… 14.38, 26.23 O Occupational health and safety see Workplace health and safety Occupiers’ liability causation .… 9.2 co-existence doctrine .… 7.38 duty of care .… 1.11, 7.30, 7.37, 26.34 categories of entrant .… 7.37, 7.38 co-existence doctrine .… 7.38 content of duty .… 7.39 contractual entrants .… 7.40 dual duty approach .… 7.38 historical background .… 7.37, 7.38, 7.39

landlord’s duty to tenants .… 7.40 public authorities .… 7.39 relationship between parties .… 7.39 skill or knowledge of visitor .… 7.40 special duties .… 7.37, 7.38, 7.39 trespassers .… 7.39, 7.40 historical background .… 7.37, 7.38 assimilation of duties .… 7.39 co-existence doctrine .… 7.38 dual duty approach .… 7.38 integration with negligence .… 7.38 United Kingdom .… 7.38 joint tortfeasors .… 29.25 contribution .… 29.37 overview .… 7.37 standard of care .… 8.9 P Parent and child discipline of child .… 6.30, 6.31 duty of care .… 7.23, 24.16 wrongful acts of children .… 7.28, 24.14 exercise of parental control .… 7.28 nature of relationship .… 7.23 overview .… 24.1, 24.7 rights of action against parent .… 24.7, 24.14, 24.15 duty of care owed to child .… 24.16 motor vehicle accidents .… 24.15 rights in favour of parent .… 24.7, 24.8, 24.14 enticement .… 24.9, 24.10 father’s right of action .… 24.8

harbouring .… 24.9, 24.10 loss of services .… 24.11, 24.13 medical and like expenses .… 24.12, 24.13 personal injury to child .… 24.11, 24.12, 24.13 seduction .… 24.9, 24.10 wrongful acts of children .… 7.28, 24.14 Parliamentary privilege ministerial communications .… 19.35 overview .… 6.53, 19.23, 19.32, 19.40 scope of protection .… 19.32, 19.35 Parliamentary proceedings reports qualified privilege .… 19.40 Parole boards duty of care .… 7.30 Parties assignees .… 29.22 bankrupts .… 29.20 power to sue .… 29.21 consular officers .… 29.9 convicted persons .… 29.23 Crown see Crown diplomatic officers .… 29.9 foreign states .… 29.7 immunity from liability .… 29.7, 29.8 husband and wife .… 29.15 intellectually disabled .… 29.16 minors see Minors multiple tortfeasors see Multiple tortfeasors partnerships .… 29.14 trade unions .… 29.10 unincorporated associations see Unincorporated associations

Partnerships defamation .… 18.13, 29.14 jointly and severally liability .… 29.14 personal injury damages .… 11.8 vicarious liability .… 29.14 Passing off causal connection .… 23.11 confusing members of public .… 23.11 development of tort .… 23.5 elements .… 22.4, 23.6, 23.7 examples .… 23.7 intentional interference .… 1.11 misleading or deceptive conduct, and .… 20.3, 20.4, 22.1, 22.3, 22.4, 23.1, 23.8, 23.9, 23.10, 23.11 overview .… 20.1, 20.2, 20.4, 20.6, 22.1 scope of protection .… 23.8, 23.10 state of mind of defendant .… 23.9 statutory action .… 1.4 Personal injuries see also Death accelerated injuries .… 9.19 aggravated damages .… 27.9 aggravated injuries .… 28.19, 28.20 civil aviation see Civil aviation compensation compensation .… 1.14, 12.1 accident compensation (NZ) .… 12.43–12.49 civil aviation .… 12.40–12.42 criminal injuries compensation .… 12.12–12.19 social security .… 12.2–12.6 transport accidents .… 12.20–12.39 workers’ compensation .… 12.7–12.11 cattle trespass .… 15.9

criminal injuries see Criminal injuries compensation damages .… 1.14, 11.1, 11.32, 12.1 aggravated damages .… 27.9 aim of awards .… 11.2 categories of loss .… 11.6 cattle trespass .… 15.9 common law deficiencies .… 11.2, 11.3, 11.4, 12.1 exemplary damages .… 27.10, 27.11 future earning capacity .… 11.3, 11.7 general damages .… 27.5 gratuitous nursing services .… 1.17 levels of award .… 11.5 loss of consortium .… 24.4, 24.5 limitation on items .… 11.5 limitation period .… 28.4 lump sum awards .… 11.1 non-pecuniary losses .… 11.6, 11.27–11.31 nuisance .… 14.34 pain and suffering .… 11.2, 11.28 parents right of action .… 24.12, 24.13 pecuniary losses .… 11.6, 11.7–11.26 periodical payments .… 11.4 social security benefits .… 11.23, 12.6 special damages .… 27.5 statutory modification .… 11.4, 11.5, 12.1 definition .… 12.45, 28.4 developments in law .… 1.14 dog attacks .… 15.21 exemplary damages .… 27.10, 27.11 gratuitous nursing care .… 1.17, 11.15, 11.16 provision by defendant .… 11.16

statutory limits .… 11.17 insurance .… 1.16, 1.17 limitation period .… 28.4 aggravated injuries .… 28.19, 28.20 civil aviation .… 28.7 commencement of period .… 28.13 loss of consortium .… 24.4 lost earning capacity .… 11.7, 11.14, 11.18 children or teenagers .… 11.10, 11.11 family partnerships .… 11.8 full-time paid employment .… 11.8 future earning capacity .… 11.3, 11.7 homemakers .… 11.9 life expectancy .… 11.11 part earning capacity .… 11.9 partnerships .… 11.8 special damages .… 11.7 statutory limits .… 11.12 vicissitudes of life .… 11.8 young unmarried women .… 11.8 medical and nursing care .… 11.13, 11.18 gratuitous care .… 1.17, 11.15, 11.16, 11.17 home care .… 11.15 institution costs .… 11.14 loss of consortium .… 24.4, 24.5 special damages .… 11.13 monetary benefits from other sources .… 11.22 sick pay .… 11.24 social security benefits .… 11.23 worker’s compensation .… 11.24 motor vehicle accidents see Motor vehicle accidents

non-pecuniary damages .… 11.6, 11.27 loss of amenities .… 11.29 loss of expectation of life .… 11.30 pain and suffering .… 11.2, 11.28, 11.29 statutory limits .… 11.31 overview .… 1.14 pecuniary damages .… 11.6, 11.18 administration costs .… 11.20 capitalisation of loss .… 11.25, 11.26 discount rate .… 11.26 earning capacity .… 11.7–11.12, 11.14, 11.18 home modifications .… 11.21 household services .… 11.19 medical and nursing care .… 11.13–11.17, 11.18 monetary benefits from other sources .… 11.22–11.24 purpose-built accommodation .… 11.21 public nuisance .… 14.55 social security see Social security benefits successive injuries .… 9.20 taking victims as you find them .… 9.23 vicissitudes principle .… 9.21, 9.22, 9.23 transport accidents see No-fault compensation schemes workers’ compensation see Workers’ compensation Physical injury see Personal injuries Pledges conversion .… 4.9, 4.27 Police officers see also Arrest; False imprisonment; Malicious prosecution duty of care .… 7.26 injury to third parties .… 7.30 misfeasance in public office .… 25.29

trespass to land .… 5.5, 5.6 vicarious liability .… 26.58 Prerogative powers acquisitions on just terms .… 6.56 overview .… 6.56 Prison authorities duty of care .… 7.24 injury to third parties .… 7.30 Prisoners damages .… 29.23 right to sue in tort .… 29.23 Privacy breach of confidence .… 17.4 defamation .… 17.4 developments in law .… 1.12, 17.4 intentional physical harm .… 3.23 review of laws .… 17.4 trespass to land .… 5.1 Private nuisance see Nuisance Privilege see Absolute privilege; Constitutionally protected privilege; Qualified privilege Professional liability schemes limitation of liability .… 13.43 overview .… 13.43 Professionals see also Medical practitioners defectively drawn documents .… 28.16 misleading or deceptive conduct .… 22.9 standard of care .… 8.27, 8.35 Property damage see also Defective buildings; Defective goods criminal injuries compensation .… 12.15 insurance .… 1.18

motor vehicle accidents .… 26.19 nervous shock .… 7.55 overview .… 13.5 proportionate liability .… 29.42 remoteness of damage .… 9.8 existing physical states .… 9.12 pure economic loss .… 13.44, 13.55 another’s property .… 13.45–13.54 criticism of principle .… 13.61, 13.62 general principle .… 13.55, 13.56, 13.57 possessory or proprietary interest .… 13.55, 13.58, 13.59 Property interests breach of statutory duty .… 16.13 Property rights nuisance .… 14.7, 14.18 Public authorities see also Local authorities; Misfeasance in public office breach of duty .… 7.31 duty of care .… 7.31, 7.36 antecedent acts .… 7.35, 7.36 nonfeasance .… 7.35, 7.36 occupiers’ liability .… 7.39 omissions .… 7.35, 7.36 planning/operational dichotomy .… 7.32–7.34, 7.36 principles .… 7.31 proximity .… 7.36 tort reform measures .… 7.31 ultra vires principle .… 7.34 vulnerability of plaintiff .… 7.36 nonfeasance .… 7.35, 7.36 community reliance .… 7.36 misfeasance, distinction .… 7.35

overview .… 7.31 planning/operational dichotomy .… 7.32, 7.34 Australian approach .… 7.34 distinction between categories .… 7.32, 7.33, 7.34 English approach .… 7.33 origins .… 7.32 statutory authority defence .… 6.49 intention of legislature .… 6.50 nuisance .… 14.46 Public employees see also Misfeasance in public office vicarious liability .… 26.57 Crown immunity .… 26.57, 26.58, 26.60 independent discretions rule .… 26.59 police officers .… 26.58 rationale for immunity .… 26.58 workers’ compensation .… 12.8, 12.11 Public nuisance Attorney-General .… 14.54 elements .… 1.5, 14.3, 14.54 highways .… 14.3, 14.55, 14.58 adjoining premises .… 14.56 individual actions .… 14.54 nature of damage .… 14.54, 14.55, 14.56 negligence, and .… 14.3, 14.57 overview .… 14.3, 14.54 personal injuries .… 14.55 private nuisance, distinction .… 14.3, 14.58 remoteness of damage .… 14.3 standing to sue .… 14.54 Public service see Public employees Publication see Defamation

Pure economic loss contract and tort .… 13.12 duty of care .… 13.13, 13.14 examples .… 13.6, 13.7 unrealised gains .… 13.7 exclusions from concept .… 13.3 property damage .… 13.5 secondary actions .… 13.4 foreseeability .… 13.1, 13.8, 13.11 insurance .… 1.19, 13.17 loss of consortium .… 24.3 negligent acts or omissions .… 1.19, 13.1, 13.6, 13.44 another’s property .… 13.45 defective property .… 13.63 misstatements, distinction .… 13.18 property of plaintiff .… 13.55 wills .… 13.77 negligent misstatements .… 1.19, 13.1, 13.6, 13.19 acts, distinction .… 13.18 overview .… 1.19, 13.1, 13.2, 13.78 proportionate liability .… 29.42 reasons for limiting liability .… 13.8 business competition .… 13.15 certainty in the law .… 13.16 contract and tort, interrelationship .… 13.12–13.14 disproportionate claims .… 13.11 indeterminate liability .… 13.9, 13.10 insurance .… 13.17 Pure mental harm see Nervous shock Q

Qualified privilege see also Absolute privilege; Constitutionally protected privilege abuse of privilege .… 19.49 excessive publication .… 19.56 extraneous matter .… 19.55 joint publishers .… 19.57 knowledge of falsity .… 19.53–19.54 malicious or improper purpose .… 19.50–19.52 vicarious liability .… 19.57 categories of occasions .… 19.38 community of interest .… 19.48 consent, distinction .… 19.71 general principle .… 19.38 malicious or improper purpose .… 19.50 causative factor .… 19.51 incidental resentment .… 19.51 responses to attack .… 19.52 overview .… 18.20, 19.30, 19.37, 19.61, 19.62 public interest .… 19.39 criminal activity information .… 19.43 judicial proceeding reports .… 19.41 parliamentary proceedings reports .… 19.40 public register extracts .… 19.42 tribunal proceeding reports .… 19.41 publisher’s interest .… 19.44 recipient’s interest .… 19.45 community of interest .… 19.48 scope of protection .… 19.46 statutory qualified privilege .… 19.59, 19.60 volunteered statements .… 19.47, 19.48 statutory qualified privilege .… 19.58, 19.67

common law, and .… 19.60 malice .… 19.61 reasonable publication .… 19.61 recipient’s interest .… 19.59, 19.60 New South Wales .… 19.58, 19.59, 19.60, 19.61 R Reasonable person circumstances of plaintiff .… 8.29 definition .… 8.14 degrees of care .… 8.30 disabled persons .… 8.17 motor vehicle drivers .… 8.18, 8.19 physical mental division .… 8.18 elderly persons .… 8.17 foreseeable risk .… 8.31 third parties .… 8.32, 8.33 general practice .… 8.34 evidence of compliance .… 8.34, 8.35 professionals .… 8.35 intelligence .… 8.20 knowledge .… 8.21 expert knowledge .… 8.23 memory and experience .… 8.21, 8.22 surrounding facts and circumstances .… 8.22 medical practitioners .… 8.26, 8.27 general practice .… 8.34, 8.35 mental disabilities .… 8.17 motor vehicle drivers .… 8.18, 8.19 physical mental division .… 8.18 minors .… 8.15, 8.16

objective standard .… 8.16 physical mental division .… 8.18 motor vehicle drivers .… 8.18, 8.19 third parties .… 8.32 overview .… 8.1, 8.4 professionals .… 8.27, 8.35 reasonable anticipation .… 8.31 skill .… 8.24, 8.28 changing levels .… 8.26 duty to seek out .… 8.25 errors of judgment .… 8.28 professionals .… 8.27 unskilled undertaking skilled work .… 8.24, 8.25 susceptibilities of plaintiff .… 8.29 Recreational activities duty of care .… 10.27 supply of services .… 10.27 Release overview .… 28.45 Remedies see also Limitation of actions abatement .… 14.53 breach of statutory duty .… 16.24–16.25 damages see Damages deceit .… 23.14, 23.15, 23.16 defamation .… 19.74 damages .… 19.75–19.82 injunctions .… 19.83 distress damage feasant .… 6.28 extinction of remedies .… 28.1 accord and satisfaction .… 28.43 death .… 28.42

final judgment .… 28.44 satisfaction .… 28.43, 28.46 surrender of cause of action .… 28.45 inducing contract breach .… 21.20 damages .… 21.21 injunctions .… 21.22, 21.23 injunctions see Injunctions interference with goods .… 4.1, 4.2 intimidation .… 21.41 injunctions .… 21.42 landlords .… 5.23 misleading or deceptive conduct .… 22.4, 22.44 compensatory orders .… 22.54 damages .… 22.46–22.53, 23.3, 23.4 injunctions .… 22.45, 23.3 nuisance .… 14.5 abatement .… 14.53 damages .… 14.34, 14.49–14.50 injunctions .… 14.5, 14.51–14.52 overview .… 27.1 replevin .… 4.1, 6.29 Remoteness of damage direct consequences test .… 9.7 existing physical states .… 9.11 ‘egg-shell skull rule’ .… 9.11 latent conditions .… 9.11 property damage .… 9.12 fatal accidents legislation .… 11.36 foreseeability of harm .… 9.7, 9.8, 9.9, 27.15 class of harm .… 9.8 ‘egg-shell skull rule’ .… 9.11

kind of harm .… 9.8 means by which harm caused .… 9.9, 9.10 type of harm .… 9.8 ulterior harm .… 9.13, 9.14 law and fact .… 8.36 means by which harm caused .… 9.9 reasonably foreseeable .… 9.10 state of knowledge .… 9.9 unexpected manifestation .… 9.9 negligent misstatement .… 13.37, 13.40 overview .… 2.23, 9.1, 9.7, 9.24, 27.14, 27.15 property damage .… 9.8 existing physical states .… 9.12 public nuisance .… 14.3, 14.57 remote, meaning .… 9.7 ulterior harm .… 9.13 chain of causation .… 9.13, 9.14, 9.15, 9.16 foreseeability .… 9.13, 9.14 novus actus interveniens .… 9.13, 9.14, 9.16 principle of risk .… 9.16 unreasonable subsequent acts .… 9.15, 9.16 Replevin availability of remedy .… 4.1, 6.29 overview .… 6.29 Reputation see Defamation Res ipsa loquitur Australian approach .… 8.41 control of defendant .… 8.45 employees .… 8.45 exclusive control, meaning .… 8.45 multiple defendants .… 8.47

multiple persons in control .… 8.46 developments in law .… 8.41 effect of application .… 8.48 election not to give evidence .… 8.49 election to give evidence .… 8.50 harm not ordinarily happening .… 8.43 ordinary course of things .… 8.44 overview .… 8.41 requirements .… 8.41 absence of explanation .… 8.42 control of defendant .… 8.45–8.47 harm not ordinarily happening .… 8.43, 8.44 Rescuers duty of care .… 7.25, 7.27 firefighters .… 7.26 good Samaritans .… 7.27 nervous shock .… 7.25, 7.48 police officers .… 7.26 reasonable foreseeability .… 7.26 scope of duty .… 7.25 voluntary assumption of risk .… 10.31 Restitution actions in tort and restitution .… 27.47 measure of damages .… 27.48 overview .… 1.4 tort, distinction .… 1.1, 1.4 Reversioners actions by reversioners .… 5.23 S Sale of goods

conversion .… 4.10 Satisfaction accord and satisfaction .… 28.46 overview .… 28.43 School authorities duty of care .… 7.21 injury to third parties .… 7.29 non-delegable duties .… 26.29, 26.56 vicarious liability .… 26.29, 26.56 sexual abuse of minors .… 26.54, 26.56 School teachers discipline of children .… 6.32 reasonable force .… 6.32 sources of authority .… 6.33 duty of care .… 7.21, 7.30 injury to third parties .… 7.29 Scienter action abolition of action .… 15.11, 15.20 cattle trespass, and .… 15.11 character of harm .… 15.16 classes of animals .… 15.12 dangerous animals .… 15.13 conduct of defendant .… 15.15 defences .… 15.18 harmless animals .… 15.12 dangerous animals, distinction .… 15.13 knowledge of prior attacks .… 15.14, 15.16 proving scienter .… 15.13, 15.14 nature of action .… 15.11 overview .… 15.1, 15.11 persons liable .… 15.17

voluntary assumption of risk .… 15.18 Seduction father’s right of action .… 24.9, 24.10 historical background .… 24.10 Self-defence considerations .… 6.15 disproportionate force .… 6.16 necessity, distinction .… 6.20 overview .… 6.15, 19.44 reasonable force .… 6.15, 6.16 Self-employed persons workers’ compensation .… 12.8 Shares conversion .… 4.17 Sheriffs execution of process .… 6.47 failure to act in accordance .… 6.48 Slander see Defamation Social security benefits bereavement allowance .… 12.5 compensation from other sources .… 12.6 damages, and .… 11.23, 12.6 disability support pension .… 12.2, 12.3 overview .… 12.2 sickness allowance .… 12.2, 12.4 types of benefits .… 12.2 widowed person allowance .… 12.2 Solicitor–client communications absolute privilege .… 19.36 Sporting activities voluntary assumption of risk .… 10.26

statutory framework .… 10.27 Sporting injuries consent .… 6.6 Standard of care balance between factors .… 8.2, 8.4 public interest .… 8.2, 8.3 contributory negligence .… 10.9 apportionment legislation .… 10.11, 10.17, 10.18 assumptions of compliance .… 10.10 children .… 10.9, 10.11 doctrine of alternative danger .… 10.13 general principles .… 10.10 imputed contributory negligence .… 10.14 intoxication .… 10.9, 10.12 obvious risk .… 10.9 reasonable care .… 10.10 cost of avoiding harm .… 8.8 adequacy of resources .… 8.9 foreseeable risk .… 8.8 safe work environment .… 8.8, 8.9 definition .… 8.1 degrees of care .… 8.30 disabled persons .… 8.1, 8.17 motor vehicle drivers .… 8.18, 8.19 physical mental division .… 8.18 duty of care, and .… 8.11 courts’ approach .… 8.13 motor vehicle drivers .… 8.11, 8.12 obviousness of risk .… 8.12 particularising duty .… 8.12, 8.13 foreseeable risk .… 8.8, 8.31

third parties .… 8.32, 8.33 guiding principles .… 8.4 cost of avoiding harm .… 8.8, 8.9 likelihood of harm .… 8.5 risk of serious injury .… 8.6, 8.9 seriousness of the risk .… 8.6 utility of defendant’s act .… 8.7 law and fact .… 8.1, 8.36 medical practitioners .… 8.2, 8.26, 8.27 general practice .… 8.34, 8.35 minors .… 8.1, 8.3, 8.15, 8.16, 29.17, 29.18 contributory negligence .… 10.11 objective standard .… 8.16 physical mental division .… 8.18 motor vehicle accidents .… 8.12 contributory negligence .… 10.10, 10.11, 10.12 failure to wear seatbelts .… 8.3 intoxication .… 10.12 motor vehicle drivers .… 1.15, 1.16, 8.11, 8.12 emergency vehicles .… 8.7 intoxication .… 10.12 mental or physical disability .… 8.18, 8.19 third parties .… 8.32 overview .… 8.1 public interest .… 8.2, 8.3 reasonable care .… 1.14, 8.1, 8.12 contributory negligence .… 10.10 reasonable person see Reasonable person risk of harm .… 8.4, 8.7 cost of avoiding harm .… 8.8, 8.9 emergency vehicles .… 8.7

foreseeable risk .… 8.8, 8.31–8.33 likelihood of harm .… 8.5 obviousness of risk .… 8.10, 8.12, 10.9 serious injury .… 8.6, 8.9 seriousness of the risk .… 8.6 voluntary assumption of risk .… 10.22 Standard of proof criminal injuries compensation .… 12.13 negligence actions .… 8.38 Statutory authorities see Public authorities Statutory authority intention of legislature .… 6.50 nuisance .… 14.46 overview .… 6.49 scope of protection .… 6.49 search and entry powers .… 6.49 Statutory duty see Breach of statutory duty Statutory qualified privilege see Qualified privilege Sub-contractors see Independent contractors T Tasmania no-fault compensation scheme .… 12.20, 12.27 benefits available .… 12.27 burial or cremation costs .… 12.31 common law claims .… 12.33 criminal conviction of driver .… 12.32 employees .… 12.28 household services .… 12.29 intoxication of driver .… 12.32 medical and hospital expenses .… 12.30

rehabilitation costs .… 12.30 self-inflicted injuries or death .… 12.32 surviving dependants .… 12.31 Tenants see also Landlords nuisance .… 14.33, 14.35 lack of repairs .… 14.42 unauthorised use of premises .… 14.37 trespass to land .… 5.6, 5.11, 6.15 exemplary damages .… 5.19 joint tenants .… 5.12 Tenants in common trespass to land .… 5.12 Tortfeasors see Multiple tortfeasors Torts aims of law .… 1.2, 1.7 compensation .… 1.10–1.14 deterrence .… 1.8, 1.9 loss distribution .… 1.15–1.19 compensatory function .… 1.7, 1.10 developments in law .… 1.11, 1.12, 1.13, 1.14 insurance .… 1.7 intentional interference .… 1.11 interests of plaintiff .… 1.10, 1.11, 1.12, 1.13, 1.14 nature of conduct .… 1.10, 1.11, 1.12 personal injuries .… 1.14 types of interests .… 1.11 contract, and .… 13.12 pure economic loss .… 13.12–13.14 contract, distinction .… 1.1, 1.2, 1.3 concurrent duties .… 1.3 criminal law, distinction .… 1.1, 1.5, 1.6

defamation see Defamation defining .… 1.1 deterrence .… 1.7, 1.8 exemplary damages .… 1.9 developments in law .… 1.8, 1.11, 1.12, 1.13 personal injuries .… 1.14 duties .… 1.2, 1.3 economic analysis .… 1.20, 1.21 economic torts see Economic torts family relations see Marital relationship; Parent and child goods see Interference with goods incidence of liability .… 1.5 insurance .… 1.7, 1.15 application of legal rules, and .… 1.15, 1.16 deterrence .… 1.8 economic loss .… 1.19 exemplary damages .… 1.9 personal injuries .… 1.16, 1.17 property damage .… 1.18 third party insurance .… 1.15, 1.16 intentional physical harm see Intentional physical harm loss distribution .… 1.7, 1.15 economic analysis .… 1.20, 1.21 insurance .… 1.15–1.19 meaning .… 1.1 misuse of process see Misuse of process negligence see Negligence nuisance see Nuisance overview .… 1.1, 1.2, 1.22 protection of interests .… 1.1, 1.3, 1.4, 1.11 developments in law .… 1.11, 1.12, 1.13

intentional interference .… 1.11 physical integrity .… 1.14 types of interests .… 1.11 restitution, distinction .… 1.1, 1.4 structure of book .… 1.22 trespass see Trespass Trade Practices Act see also Competition and Consumer Act criminal liability .… 22.32, 22.33 misleading or deceptive conduct see Misleading or deceptive conduct overview .… 22.1 renaming of Act .… 22.2 Trade unions defamation .… 18.13 overview .… 29.10 statutory protection .… 29.10 Trading corporations defamation .… 18.13 overview .… 18.13 Transport accident schemes see No-fault compensation schemes Trespass see also Cattle trespass accidental trespass .… 2.2 actionable per se .… 2.20 burden of proof .… 2.6, 2.13, 2.20 highway cases .… 2.13, 2.16, 2.18–2.19 non-highway cases .… 2.13–2.17 cattle trespass, distinction .… 15.2 defences .… 6.1 abatement of nuisance .… 6.26, 14.53 arrest .… 6.35–6.46 assumption of risk .… 6.4 consent .… 6.4–6.11

contributory negligence .… 6.14 defence of another .… 6.17 defence of another’s property .… 6.19 defence of property .… 6.18, 6.20 discipline .… 6.30–6.34 distress damage feasant .… 6.28 distress for rent .… 6.27 execution of process .… 6.47, 6.48 executive acts .… 6.54–6.56 inevitable accident .… 6.3 judicial acts .… 6.51, 6.52 military acts .… 6.57 mistake .… 6.2, 6.3 necessity .… 6.20–6.23 parliamentary privilege .… 6.53 plaintiff a wrongdoer .… 6.58, 6.59 recaption of chattels .… 6.24 re-entry on land .… 6.25 replevin .… 6.29 self defence .… 6.15, 6.16, 6.20 statutory authority .… 6.49, 6.50 dog attacks .… 15.25 fault .… 2.1, 2.2, 2.6 Australian position .… 2.3, 2.4 New Zealand position .… 2.5 highway cases .… 2.3, 2.4, 2.11 burden of proof .… 2.13, 2.16, 2.18–2.19 historical background .… 1.8, 2.7, 2.8 limitation period .… 28.9 mentally disabled persons .… 29.16 minors .… 29.18

negligence, and .… 2.1, 2.6, 2.20, 7.1, 7.2 advantages and disadvantages .… 2.20–2.24 avoidance of overlap .… 2.8, 2.9 Australian position .… 2.3, 2.6, 2.10, 2.11 burden of proof .… 2.6, 2.13–2.19, 2.20 damage requirement .… 2.21 highway cases .… 2.3, 2.4, 2.11, 2.13, 2.16, 2.18–2.19 historical background .… 2.7, 2.8 lack of care, meaning .… 2.22 limitation of actions .… 2.8, 2.10, 2.24 New Zealand position .… 2.12 non-highway cases .… 2.3, 2.4, 2.11, 2.13–2.17 remoteness of damage .… 2.23 non-highway cases .… 2.3, 2.4, 2.11 burden of proof .… 2.13–2.17 nuisance, and .… 14.4 occupier’s liability .… 7.39, 7.40 standard of care .… 8.9 overview .… 2.1, 2.2 Trespass to goods act of defendant .… 4.45 causing harmful contact .… 4.46 degrees of injury .… 4.46 indirect interference .… 4.45 moving of goods .… 4.46 touching of goods .… 4.46 damages .… 4.52, 27.15 mitigation of damage .… 27.19 trespass ab initio .… 4.53 defences .… 6.18 jus tertii .… 4.51

forms of trespass .… 4.44 intention .… 4.47 interest of plaintiff .… 4.48 bailment .… 4.49 jus tertii .… 4.51 possession of goods .… 4.48, 4.49, 4.50, 4.51 right to possession .… 4.49 third parties .… 4.51 negligence .… 4.47 overview .… 4.1, 4.2, 4.43 possession of goods .… 4.48, 4.49, 4.65 exceptions to rule .… 4.50 third parties .… 4.51 scope of protection .… 4.43 state of mind of defendant .… 4.47 involuntary acts .… 4.47 trespass ab initio .… 4.53 Trespass to land actions by reversioners .… 5.23 aircraft .… 5.9 airspace .… 5.9 ordinary user concept .… 5.9 statutory provisions .… 5.9 consent .… 5.5, 6.5 revocation of licence .… 5.5, 6.12 continuing trespass .… 5.4, 5.6, 28.9 injunctions .… 5.20, 5.21 damages .… 5.15, 27.15 aggravated damages .… 5.19 consequential loss .… 5.16 cost of repairs .… 5.15

exemplary damages .… 5.19, 27.11 mitigation of damage .… 27.19 non-pecuniary losses .… 5.19 severance of resources .… 5.18 special damages .… 5.16 wilful or innocent acts .… 5.18 wrongful occupancy .… 5.17 defences .… 6.5, 6.18 jus tertii .… 5.14 recaption of chattels .… 6.24 re-entry on land .… 6.25 revocation of licence .… 6.12 dog attacks .… 15.25 exemplary damages .… 5.19, 27.11 highway authorities .… 5.7 highways .… 5.7, 5.8 injunctions .… 5.20 conduct of defendant .… 5.21 preconditions for grant .… 5.22 privacy protection .… 5.1 suppression of after-effects .… 5.22 suspension of injunction .… 5.21 unconscionability .… 5.22 intention .… 5.10 interests of plaintiff .… 5.1, 5.11 adverse possession .… 5.14 exclusive possession .… 5.11, 5.13 joint tenants .… 5.12 jus tertii .… 5.14 licence to use .… 5.13 matrimonial home .… 5.12

statutory tenants .… 5.11 tenants in common .… 5.12 licence to enter .… 5.5, 5.13 exceeding terms .… 5.6 implied licence .… 5.5 withdrawal of licence .… 5.5, 6.12 limitation period .… 28.9 mistake .… 5.10, 6.2 overview .… 5.1 privacy violation .… 5.1 scope of protection .… 5.1 state of mind of defendant .… 5.10 voluntariness .… 5.10 subject matter .… 5.7 airspace .… 5.9 below surface .… 5.7, 5.8 public roads .… 5.7, 5.8 tenants .… 5.6, 5.11, 6.25 exemplary damages .… 5.19 joint tenants .… 5.12 tenants in common .… 5.12 third parties .… 5.10 types of acts .… 5.2 direct acts .… 5.2 entry without permission .… 5.2 exceeding terms of licence .… 5.6 failure to leave .… 5.6 foreign matter entering land .… 5.3 remaining on land .… 5.4 withdrawal of licence .… 5.5 Trespass to person see also Intentional physical harm

assault see Assault battery see Battery burden of proof .… 2.13–2.17 consent .… 2.17 highway cases .… 2.13, 2.16, 2.18–2.19 consent .… 2.17, 6.5, 6.10 criminal injuries compensation .… 3.38 defences .… 6.1 consent .… 6.5, 6.10 inevitable accident .… 6.3 false imprisonment see False imprisonment negligence, and .… 2.4, 2.5, 2.8 New Zealand .… 2.5 Trover see Conversion U Unborn plaintiffs duty of care .… 7.16 Unfair business practices see Misleading or deceptive conduct Unincorporated associations defamation .… 18.13, 29.12, 29.13 formation .… 29.11 legal status .… 26.11, 29.11 members’ rights and liabilities .… 29.11 actions against office bearers .… 29.13 defendants, as .… 29.13 plaintiffs, as .… 29.12 overview .… 29.11 vicarious liability .… 26.11 Unlawful interference with trade development of tort .… 21.2

Australian approach .… 21.25, 21.30 expansion of liability .… 21.2, 21.3, 21.4, 21.24, 21.25 restoration of orthodoxy .… 21.4, 21.26 elements .… 21.27 inducing contract breach, and .… 21.4, 21.24, 21.25 intention to cause loss .… 21.27, 21.29, 21.30 overview .… 20.1, 20.2, 20.4, 20.6, 21.2, 21.24, 21.27 primary liability .… 21.4, 21.26 scope of tort .… 21.28 wrongful interference .… 21.27, 21.28, 21.30 examples of conduct .… 21.28 V Vicarious liability agents .… 23.35, 26.2, 26.12 deceit .… 23.35, 26.13 defamation .… 26.14 directors .… 26.15 employee or contractor .… 23.35, 26.12 malicious prosecution .… 25.4 misleading or deceptive conduct .… 23.37 motor vehicle drivers .… 26.16–26.19 negligent misstatement .… 23.36 assault .… 26.43 authorisation to commit tort .… 26.21 ratification of act .… 26.22 contribution between tortfeasors .… 29.39, 29.40 contributory negligence .… 10.14 course of employment .… 26.41, 26.45 authorised limits of time and space .… 26.47–26.49 authorised mode .… 26.42

connection with employer’s work .… 26.52 criminal conduct .… 26.53–26.56 detours by employee .… 26.48 express prohibitions .… 26.50, 26.51 frolic by employee .… 26.49 limits of designated tasks .… 26.44 mode of doing work .… 26.42–26.46 motivation behind act .… 26.43 permission to do an act .… 26.46 scope of authority .… 26.51 criminal conduct .… 26.53 sexual abuse of minors .… 26.54–26.56 Crown .… 26.57, 29.3 immunity .… 26.57, 26.58, 26.60, 29.1 rationale for immunity .… 26.58 defamation .… 19.28, 19.29 abuse of privilege .… 19.57 agents .… 26.14 directors .… 26.15 employee or contractor .… 26.1, 26.2, 26.6, 26.11 agents .… 23.35, 26.12 borrowed employees .… 26.9, 26.10 control test .… 26.3, 26.4, 26.9, 26.10 criteria for distinguishing .… 26.3–26.10 hospital staff .… 26.7–26.8 organisation test .… 26.8 relevant factors .… 26.4, 26.5 totality of relationship .… 26.4 exemplary damages .… 26.40 hospitals .… 26.7 non-delegable duties .… 26.7, 26.29

obligations of hospital .… 26.7 organisation test .… 26.8 part-time engagement .… 26.7 independent contractors .… 26.2, 26.20, 26.45 agents .… 23.35, 26.12 authorisation to commit tort .… 26.21, 26.22 breach of statutory duty .… 26.23 collateral negligence .… 26.35, 26.36, 26.45 dangerous users of land .… 26.31, 26.32 employee or contractor .… 26.1, 26.2, 26.3–26.11, 26.12 employer’s non-delegable duties .… 26.2, 26.26, 26.28 land developers .… 26.33 negligence by employer .… 26.25 nuisance .… 14.38, 26.23 prison authorities .… 26.30 reasonable care not taken .… 26.24–26.36 joint tortfeasors .… 29.25 mode of doing work .… 26.42 authorised mode .… 26.42 limits of designated tasks .… 26.44 motivation behind act .… 26.43 permission to do an act .… 26.46 motor vehicle drivers .… 26.16 imposition of liability .… 26.17 no-fault compensation schemes .… 26.18 property damage .… 26.19 rebuttable presumption .… 26.17 non-delegable duties .… 26.27 categories of activity .… 26.27 dangerous users of land .… 26.31, 26.32 employers .… 26.2, 26.26, 26.28

hospitals .… 26.7, 26.29 independent contractors .… 26.2, 26.26 invitors .… 26.34 land developers .… 26.33 prison authorities .… 26.30 school authorities .… 26.29, 26.56 nuisance .… 14.38, 26.23 overview .… 10.14, 26.1, 26.37 public employees .… 26.57 Crown immunity .… 26.57, 26.58, 26.60 independent discretions rule .… 26.59 police officers .… 26.58 rationale for immunity .… 26.58 relationships akin to employment .… 26.11 school authorities .… 26.29, 26.56 sexual abuse of minors .… 26.54, 26.56 theories of liability .… 26.37 application of theories .… 26.40 master’s tort theory .… 26.38, 26.40 strict liability theory .… 26.38, 26.39, 26.40 unincorporated associations .… 29.13 Victims of crime see Criminal injuries compensation Victoria no-fault compensation scheme .… 12.20, 12.21 benefits available .… 12.21 common law claims .… 12.26 criminal conviction of driver .… 12.25 failure to report .… 12.25 impairment of bodily functions .… 12.23, 12.25 intoxication of driver .… 12.25 loss of earning capacity .… 12.22, 12.25, 12.26

surviving spouse or children .… 12.24 Voluntary assumption of risk appreciation of risk .… 10.20, 10.30 breach of statutory duty .… 16.33 civil liability legislation .… 7.54, 10.20 consent, distinction .… 6.4 deemed assumption of risk .… 10.25 employees .… 10.25 motor vehicle drivers .… 10.28 recreational activities .… 10.27 sporting activities .… 10.26, 10.27 dog attacks .… 15.24 elements .… 10.20 employees .… 10.25, 10.31 fatal accidents legislation .… 11.38 intoxicated drivers .… 10.28, 10.30 knowledge of risk .… 10.20, 10.30 meaning .… 6.4, 10.19 nervous shock .… 7.54 no breach of duty .… 10.22 other defences, distinction .… 10.21 contractual exclusion clauses .… 10.23 no breach of duty .… 10.22 non-contractual notice of exculpation .… 10.24 overview .… 6.4, 10.1, 10.19 recreational activities .… 10.27 rescue cases .… 10.31 scienter action .… 15.18 scope of risk .… 10.29 sporting activities .… 10.26 statutory framework .… 10.27

standard of care .… 10.22 voluntary conduct .… 10.31 Volunteers duty of care .… 7.56, 7.61 protection from liability .… 7.61 W Wills economic loss .… 13.77, 13.79 adviser/beneficiary relationship .… 13.78 limitation on liability .… 13.79 negligent misstatement .… 13.35 Workers’ compensation benefits payable .… 12.10 breach of statutory duty .… 16.6 compensable injuries .… 12.9 course of employment .… 12.9 travel to and from employment .… 12.9 coverage of legislation .… 12.8 damages, and .… 11.24 fatal accidents legislation .… 11.48 employees’ right of action .… 12.11 third parties, against .… 12.11 historical background .… 12.7 government employees .… 12.8, 12.11 loss of services .… 20.20 overview .… 12.7 self-employed persons .… 12.8 self-inflicted injuries .… 12.9 state and territory legislation .… 12.7 travel to and from employment .… 12.9, 12.11

Workplace health and safety breach of statutory duty .… 16.3, 16.4, 16.21 causation .… 16.31 conduct of defendant .… 16.30 contributory negligence .… 16.35, 16.36, 16.37 dangerous machinery .… 16.27 delegation of duties to employee .… 16.34 duty on defendant .… 16.18 restrictions on availability .… 16.6 specified class .… 16.29 statutory interpretation .… 16.12 voluntary assumption of risk .… 16.33 model legislation .… 16.6 Wrongful birth damages .… 7.58 United Kingdom .… 7.59 duty of care .… 7.56, 7.58, 7.59 New Zealand .… 12.45 Wrongful life duty of care .… 7.56, 7.60 right of foetus to abortion .… 7.60