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Tort Law in Australia

In late 2002, Australia’s tort law went through major changes. Originally a body of unified common law, tort law has now been changed into a varied range of statutes that are different in every state and territory.

What is tort law?

A tort is a wrongdoing that isn’t necessarily illegal, but it causes someone harm. Tort law then is a collection of rights, obligations and remedies used by courts in civil procedures that provide relief to victims of physical, economic or legal harm.

Tort law is divided into three general categories:

  • Negligence torts
    These are civil wrongs brought about by one's failure to exercise care against risks known to cause potential harm. For instance, you leave your pet horse unattended on the roadside. Kids throw stones at your horse, causing it to run amok and injure several people. Since it's likely that your horse could easily be affected by noise or passersby, this could be considered a negligence tort.
  • Intentional torts
    These are deliberate actions that result in harm to the plaintiff. One classic example of intentional tort is fraud, which is intentional dishonesty to gain advantage over someone. Defamation is also considered an intentional tort since it's a conscious act of ruining someone's reputation through libel or slander.
  • Strict liability torts
    Strict liability imposes accountability on a person or company who isn’t guilty of wrongdoing, but caused unusually dangerous risks to society despite exercising appropriate care. For example, a manufacturer of a product that causes injury can be considered a strict liability tort, even if it exercised due diligence.

Objectives of tort law

Tort law has two main objectives:

  • Compensation
    Tort law seeks to compensate those who have suffered because of the action or inaction of other people and shift the cost of those sufferings to the person or companies responsible for them.
  • Deterrence
    More importantly, tort law aims to discourage harmful, negligent and risky behaviour in the future as it seeks to vindicate legal rights that have been undermined.

Some common torts

Negligence

As mentioned earlier, negligence is failure to exercise care against risks known to cause potential harm. Here are several elements that a plaintiff needs to establish to prove negligence:

  • Duty of care
    This refers to one's legal obligation of a person to take proper care while performing any action that can foreseeably hurt other people. If there is some sort of relationship between the plaintiff and defendant (for instance, a fellow employee, manufacturer to consumer, or doctor to patient), then duty of care is established.
  • Breach of duty
    Simply put, this means failure to exercise proper care that any "reasonable person" would do in the same situation.
  • Causation
    In law, causation is the relationship between behaviour and result, usually some sort of injury. Causation is an element common to all categories of torts (i.e. negligence, strict liability and intentional torts) and has a couple of points:
    • ?A tort has to be the cause of an injury. This means the act in question should've caused an injury to another, not just the plaintiff. A problem occurs when several factors led to the injury because the plaintiff needs to prove that the defendant's action played a significant factor in the injury.
    • The plaintiff also has to prove that the defendant’s action was the proximate cause of the injury before liability is carried out. "Proximate" meaning the injury should have a reasonable relationship to the risk caused by the defendant. For example, a truck driver carelessly smashes into a home, but the collision doesn't injure its resident. Because of the impact however, part of the ceiling collapses and hits the resident, injuring him. The truck driver's negligence is the proximate cause of the resident's injury,

To prove causation in tort law, the plaintiff needs to show that the injury or loss he or she bore was caused by the defendant. This is usually done using the "but for" test, which considers whether the injury would've happened "but for" the defendant's negligence.

  • Harm
    Damage or harm is a necessary part of the tort. If the plaintiff can’t prove that injury was caused by the defendant even if all other elements are present, negligence would not be established.

As mentioned earlier, 2002 saw major changes to negligence laws in several states, especially after the media claimed that there was an "insurance crisis" due to increasing insurance premiums. According to the insurance industry, these changes in negligence laws have reduced claims.

Assault

Assault is the act, threat or offer to cause bodily harm. In tort law, assault and battery are two distinct matters where assault is the act of causing fear of impending battery, while battery itself is the unlawful physical contact.

There has been a debate as to whether words can be considered assault. During the case of Barton v Armstrong [1969] 2 NSWLR 451, the court decided that words uttered during a phone conversation were considered an assault.

Invasion of privacy

Back in 2001, the High Court of Australia actually allowed the possibility of having a tort for invasion of privacy. It was during the case ABC v Lenah Games Meats that the Court said it didn’t want to decide on the issue. Justice Ian Callinan, however, seems to have suggested that having such a tort is possible.

Since then, the issue of having an invasion of privacy tort was considered in Victoria and Queensland. During the Grosse v Purvis [2003] QDC 151 case, the judge actually awarded damages for invasion of privacy.

Invasion of privacy is currently a contentious issue in the country. Despite being federated for more than a century, we still have no legal definition of privacy. In recent years, the Australian Law Reform Commission recommended a statutory cause of action to justify having a tort for invasion of privacy.

The problem is that Australia has no constitutional protection for free speech. A tort for invasion of privacy will conflict, or maybe even compromise, free speech. And since there’s no legal definition of privacy, it could mean anything.