Law of torts based on readings from 1142

Australian Law on Torts and Defamation

Tort Law in Australia

Tort law has assumed increasing relevance and importance in recent years in Australia and the country has gained the reputation for being a highly litigious society based on a growing number of tort cases. In this regard, Clark notes that, "A great deal has been written of the emergence of a culture of 'blame and claim' in Australia. Australia has become a very litigious society with rates of litigation that now match or even exceed parts of the United States. Australian culture has departed from the concept of personal responsibility in exchange for embracing a culture of blame" (2007, p. 140). This culture of "blame and claim" holds important implications for the adjudication of tort laws in Australia. Indeed, absent any degree of personal responsibility, virtually anyone can be deemed a tort feasor and held accountable for another's actions, no matter how bizarre the circumstances might be. For instance, Clark states that in Australia:

Someone else is always to blame, as it must always be someone else's fault, preferably someone with deep pockets. As a consequence, the plaintiffs and those who represent them, have sought to expand the boundaries of liability, demanding ever more onerous standards of care at every available opportunity. If there was not a fence or sign at the top of the cliff, there should have been. If there was a fence or sign, it wasn't high enough or clear enough. If it was high enough or clear enough, the defendant should have anticipated that the plaintiff would have used a ladder to climb over it. It just has to be somebody else's fault. (2007, p. 140).

Although definitions vary, a generally accepted definition is provided by Black's Law Dictionary (1999) which advises that a tort is "a private or civil wrong or injury, including action for bad faith, breach of contract, for which the court will provide a remedy in the form of an action for damages. A violation of duty imposed by general law" (p. 1489). There has been some efforts in recent years as well to introduce some degree of tort reform at the national and state level in Australia. According to Clark, these efforts have resulted in a wide range of significant outcomes, particularly with respect to the law of negligence, changes to limitation periods, and the capping, or extinguishing, of certain heads of damage and these issues are discussed further below.

The Law of Negligence

Changes to the law of negligence were among the first of the reforms to address tort laws in Australia. For example, defendants in New South Wales are not liable for negligence that results from "failing to take precautions against a risk of harm" unless the following conditions are satisfied:

1. The defendant knew or ought to have known of the risk (i.e., the risk was foreseeable);

2. The risk was "not insignificant"; and,

3. A reasonable person in the defendant's position would have taken precautions against the risk (Clark 2007).

For the purposes of determining what reasonable people would have done in response to the risk, the reforms introduced mean that courts must now take into account the likelihood that the harm would have taken place if appropriate care was not exercised by the defendant, the probability of the seriousness of the harm that could be expected to result; the degree of the burden that was created by taking appropriation precautions that were intended to avoid the risk of harm; and the social utility of the activity that created the risk of harm in the first place (Clark 2007).

The Law of Causation

Another area that has experienced reform in recent years has been the law of causation. As a result of these changes, plaintiffs in New South Wales now bear the burden of proving factual causation from the perspective that the negligence was an essential element that contributed to the harm (Clark 2007). According to Clark, "In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party; and that it is appropriate for the scope of the defendant's liability to extend to the harm so caused ('scope of liability')" (2007, p. 201). With respect to determining the scope of liability, courts are not required to take into account, among other relevant issues, why as well as whether or not responsibility for the harm should be imposed on the negligent party (Clark 2007). There have also been some changes made to the limitations periods involved in tort reform, and these issues are discussed further below.

Amendments to Limitation Periods

The next series of major reforms to tort law in recent years has been with respect to the amendment to limitation periods. The limitation period in actions for the recovery of damages for non-motor vehicle related personal injury or death has been amended in line with the recommendations of the Review of the Law of Negligence Report concerning recommended changes to the Trade Practices Act 1974 (2002, the so-called "Ipp Report," named for the Honorable David Andrew Ipp, Chairman of the commission) (Clark 2007). According to Ipp and his colleagues (2002), these reforms have been in response to a widespread perception that tort laws in Australia were nebulous and allowed the award of exorbitant amounts of damages in personal injury cases. In this regard, Ipp et al. emphasized that, "There is a widely held view in the Australian community that there are problems with the law stemming from perceptions that:

1. The law of negligence as it is applied in the courts is unclear and unpredictable.

2. In recent times it has become too easy for plaintiffs in personal injury cases to establish liability for negligence on the part of defendants.

3. Damages awards in personal injuries cases are frequently too high (2002, p. 3).

The commission went on to explain that regardless of whether these views were accurate or not, they represented serious issues for Australia since they could diminish the regard with which citizens held the law and could, as a direct consequence, also detract from the rule of law as well (Ipp et al. 2002).

As a result of the changes that resulted from the Ipp Report, the new limitation period is the earlier of:

1. Three years from when the cause of action was discoverable, called the "three-year post discoverability limitation period" - that is, when the plaintiff first knew or ought to have known that the injury or death has occurred, that the injury or death was caused by the fault of the defendant and, in the case of injury, that the injury was sufficiently serious to justify the bringing of an action; and,

2. Twelve years from the occurrence that gives rise to the claim, called the "twelve year long-stop limitation period" (Clark 2007, p. 201).

Courts retain the authority to extend the 12-year long-stop limitation period at their discretion; however, this discretion does not extend beyond 3 years following the point at which the cause of action was discoverable (Clark 2007). In this regard, among the recommendations contained in the Ipp Report, the following were provided related to the limitation period:

(e)

The court has a discretion at any time to extend the long-stop period to the expiry of a period of 3 years from the date of discoverability.

(f)

In exercising its discretion, the court must have regard to the justice of the case, and in particular:

whether the passage of time has prejudiced a fair trial of the claim.

the nature and extent of the plaintiff's loss.

the nature of the defendant's conduct. Paragraphs 6.18 -- 6.40

In their application of this discretion, courts must taken into account various factors including the length and reasons for delay and the extent to which the delay has or may cause prejudice to the defendant as the result of relevant evidence no longer being available (Clark 2007). In addition, these principles apply to survivor actions (e.g., causes of action that survive on the death of the person) and to compensation for relative actions (Clark 2007). Finally, the recent reforms to Australian tort law established limitations on some heads of damages, while completely eliminating others and these issues are discussed further below.

Capping Damages

The restrictions established by the New South Wales on awards of damages for non-economic loss are set forth below:

1. No damages may be awarded to a claimant for non-economic loss unless the severity of that loss is at least fifteen percent of the most extreme case.

2. The maximum amount of damages for non-economic loss is fixed at $350,000. It is intended that this maximum amount would only be awarded in a most extreme case.

3. A court cannot order the payment of interest on damages awarded for non-economic loss. This provision is based on the rationale that general damages do not represent financial loss to the injured person. A number of changes have also been made to the law in respect to assessment of damages for past and future economic loss.

4. The maximum amount of damages for economic loss due to loss of earnings or the deprivation or impairment of earning capacity is fixed at a rate of three times the average weekly earnings in New South Wales for the most recent quarter occurring before the date of the award.

5. Future economic loss predictions, for the purpose of making an award, must be based on assumptions that accord with the claimant's most likely future circumstances but for the injury. If the court makes an award for future economic loss, it must adjust the amount determined by reference to the percentage possibility that, but for the injury, certain events may have occurred that would have resulted in economic loss. In delivering its judgment, the court must state the assumptions on which the award was based and the relevant percentage by which the damages were adjusted.

6. If an award for damages includes a lump-sum component for future economic loss, that amount must be discounted by five percent or some other percentage rate prescribed by the regulations (Clark 2007, p. 201).

Likewise, the types and ranges of damages that are not allowed to be awarded for gratuitously provided attendant care services, such as nursing or domestic help, have also been defined and restricted as follows:

1. Such damages cannot be awarded unless the court is satisfied that there is (or was) a reasonable need for the services, which has arisen solely as a result of the injury sustained. The court must be of the mind that the services would not be (or would not have been) provided to the claimant but for the injury.

2. No damages may be awarded for gratuitous attendant care services if the services are provided, or are to be provided, for less than six hours per week and for less than a total period of six months.

3. There are certain restrictions on the amount of damages that can be awarded for gratuitous attendant care services. Such limitations hinge upon whether services are provided for more or less than forty hours per week.

4. The court is not permitted to order the payment of interest on gratuitous attendant care services.

5. Exemplary, punitive, and aggravated damages may no longer be awarded in personal injury actions in New South Wales (Clark 2007, p. 201).

Australian tort law is also influenced to some degree by the common law as well as various precedential case law such as Venning v. Chin (1974, 10 SASR 299). In this regard, Bailey reports that this case represents "a classic example of a road accident case in which it was difficult for the plaintiff to prove negligence on the defendant's part" (1976, p. 402). The court's holding in Venning v. Chin represented an attempted effort to use the common law to revise traditional laws regarding vehicular accidents by invoking the tort of trespass to the person which includes stricter liability limits (Bailey 1976). According to Bailey:

When the case reached the Full Court of the Supreme Court of South Australia, this attempted reformulation was emphatically rejected, the members of the Full Court adopting a position of strict orthodoxy. At the same time, the case was given an elaborate conceptual analysis. But in the High Court, Venning v. Chin lapsed into mundaneness and became simply another case on negligence and the evidence required to prove it. The controversial points of law were not raised and . . . At the end of the day, the person who is injured but cannot prove fault gets no help from the common law. (1976, p. 402)

The joint judgment promulgated by the court analyzed the respective constituent components of the tort of negligence and trespass to the person thusly: "The essential ingredients in an action of negligence for personal injuries include the special or particular damage . . . And want of due care. Trespass to the person includes neither" (quoted in Bailey at p. 405). Interestingly, Bailey also reports that the Full Court of the Supreme Court of South Australia in Venning v. Chin held that an action for trespass and an action in negligence could both arise from the facts of the same case. Likewise, quoting Lord Deming, Cottrell notes that, "Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character" (p. 417).

It is not a tort in Australia, though, to prevent an individual from leaving one's premises if the conditions under which that person entered the premises have not been satisfied in full (Tan, 1981).

Defamation Law in Australia

The right of free speech is not absolute, of course, with the well-known example of yelling "Fire!" In a crowded theatre being strictly prohibited because of the likelihood of panic and injury that would follow. Notwithstanding such limitations, though, the right of free speech and freedom of expression are highly prized values in democratic societies such as Australia, the United States and the United Kingdom. According to Amponsah, though, "Australia is an example of a country that does not have a clear constitutional statement protecting free speech," but the author adds, "Australia is evolving in the area of political defamation and has an adequate body of law on this topic" (2004, p. 4). In his essay, "Dancing in the streets," Justice McHugh emphasizes that, "Few doubt the importance of protecting freedom of expression. Freedom of expression is recognised as a fundamental human right in Article 19 of the International Covenant on Civil and Political Rights, and in numerous other international agreements, domestic constitutions, and judicial decisions" (pp. 2-3). The justice adds that, "There is a constant tension between freedom of speech and the protection of reputation that is inherent within defamation law and the need to strike an appropriate balance between these two conflicting public interests" (p. 3).

In his essay, "Perfecting Polly Peck," Kenyon emphasizes that, "Parties in civil defamation disputes very often disagree about what the publication in question means. While the differences may appear minor -- for example, does the publication convey that the plaintiff is guilty of some discreditable action or merely suspected of such guilt -- the way in which these differences are handled in law and litigation practice has great importance. Dealing well with the issue of meaning is central to litigation practices that are fair to both parties, respectful of limited court resources and responsive to the public interest in efficient and effective defamation litigation" (p. 651).

In the case, Berkoff v Burchill, Lord Justice Neill stated, "I am not aware of any entirely satisfactory definition of the word 'defamatory'" (quoted in Cottrell at p. 1), but according to Black's Law Dictionary (1999) defamation is "an intentional false communication, either published or publicly spoken, that injures another's reputation or good name. The holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil (includes both libel and slander)" (p. 417). Likewise, Cottrell notes that, "Although defamation laws differ across jurisdictions and can be very complex, the essence of the tort is fairly simple. A person may have an action for defamation where something has been said or published about them which is 'defamatory'. The plaintiff will not succeed in every circumstance -- for example, if what was said was true or was an expression of opinion (rather than fact) then the plaintiff will fail -- but in order to make a case in the first place it is essential that they have been defamed" (p. 2)..

This formal definition is also consistent with that provided by Kenyon (2007) who notes that, "Defamation law, in outline, appears simple. Plaintiffs need only prove three things: material was published; the material identified them; and it conveyed a defamatory meaning. Damages have long been the usual remedy in civil defamation, and are presumed once the plaintiff's case has been established" (p. 653). Although injunctive relief that would prohibit the publication or utterance of defamatory material is also available under Australian law, it is much more difficult to obtain (Kenyon 2007). These issues are significant, Kenyon (2007) adds, because of the importance of their defences in practice.

According to Cottrell, the precedential statement of law concerning what is defamatory is generally attributed to Parke in the 1840 decision in Parmiter v Coupland in which the court held that: "A publication will be defamatory if it 'is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule" (p. 2). During the first three decades of the 20th century, this statement of law was regarded as the acid test for determining what constituted defamation. By the 1930s, though, the law became the focus of increased scrutiny and some fundamental changes were made; over the course of the next 70 years, defamation law in Australia experienced the emergence and stabilization of an "acid test" concerning what is considered to be defamatory.

The current primary test for determining whether something is defamatory or not is the so-called "lowering the estimation" test. According to Cottrell, Lord Atkin refined the position adopted in the Parmiter v Coupland case and held in Sim v Stretch that it was not necessary to invoke feelings through the communication of certain materials to the extent that hatred, ridicule, or contempt resulted. Instead, Atkin found, it was sufficient for something to be regarded as defamatory if the plaintiff was lowered in the estimation of others: "Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?" (quoted in Cottrell at p. 2). There is clearly a great deal of subjectivity involved in this type of assessment, but the current incarnation of the law of defamation throughout Australia relies on just such a subjective analysis. In this regard, Cottrell adds that, "This test is expressed in different terms depending on the jurisdiction but is the same in its general thrust across the common law jurisdictions. The contemporary Australian formulation is that a statement will be defamatory if it has a tendency 'to cause ordinary decent folk in the community, taken in general, to think the less of [the person]'" (Cottrell, pp. 2-3).

According to Kenyon (2007), all Australian states have enacted relatively uniform defamation statutes that became effective on January 1, 2006. For instance, representative of current laws is the Queensland Defamation Act of 2005, Division 1, Section 7 of the Act stipulates that the former distinctions between slander and libel remains abolished:

1. The distinction at general law between slander and libel remains abolished;

2. Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage (p. 7).

Division 2, Sections 8 and 9 of the Act respectively stipulate that:

1. Single cause of action for multiple defamatory imputations in same matter: A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter (p. 7).

2. A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication (p. 7).

Other salient features of the Defamation Act of 2005 include the following:

1. No cause of action for defamation can be brought with respect to the alleged defamation of a deceased person, and the death of an individual alleged to have defamed another stops all proceedings (Division 10, p. 8).

2. If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication (Division 3, p. 9).

3. Provisions are included concerning the offer by a publisher to make amends (Division 1, p. 11); the content of such offers to make amends (p. 12); the withdrawal of an offer to make amends (p. 14); the effect of accepting an offer to make amends (p. 14) and the effect of failing to accept a reasonable offer to make amends by a publisher (p. 15).

4. Provisions are also included regarding offers to apologize for allegedly defamatory materials, an act that does not convey any admission of guilt on the part of the apologizing party and which is not admissible as evidence in any civil suit that may result (Division 2, p. 17).

5. Division 2, defences, provides for the defence of justification (wherein the material is subsequently proven to be substantially true) (p. 19).

6. The defence of contextual truth provides protections from defamation suits provided that if the material published contains at least some truthful material and the material does not introduce further harm to the reputation of the plaintiff because of the substantial truth of the contextual imputations (p. 20).

7. The defence of publication of public documents (defendant proves that the material was contained in a public document or a fair copy thereof) (p. 21).

8. The defence of fair reporting of proceedings of public concern (similar to the foregoing defense of publication of public document defence, this defence is valid if the defendant proves that the material was contained in a fair report of any proceedings of public concern) (p. 23).

9. The defence of absolute privilege protects publishers of defamatory material (Division 27, p. 20).

10. The defence of honest opinion also protects individuals from litigation from defamed individuals or corporations (Division 31, pp. 28-29).

11. The defence of innocent dissemination also protects individuals from defamation lawsuits (Division 32, p. 30).

12. Finally, the defence of triviality is a valid defence against defamation lawsuits (Division 33, p. 31).

Recent trends in the interpretation and application of defamation laws in Australia have also represented some change from previous views on qualified privilege as a defence. In this regard, Fischer advises that, "For generations the courts of Australia did give some protection to defamatory and false statements through the doctrine of qualified privilege, both under common law and as extended by various statutes; however, this protection was relatively narrow" (2002, p. 102). Because there was a distinction made between truthful statements contained in publications and those that were based on conjecture and opinion only, publishers in Australia were virtually hamstrung. As Fischer points out, "Only very rarely did their courts find qualified privilege applicable to false and defamatory statements that were widely published by the media" (2002, p. 102).

Furthermore, the traditional defence of qualified privilege did not necessarily extend to the political realm either. For instance, Fischer adds that, "Moreover, this traditional defense of qualified privilege gave no particular protection to political speech. The traditional defense was more concerned with whether the occasion of publication was in the public interest than with the status of the speaker or the nature of the speech" (2002, p. 102). In Lange v. Australian Broadcasting Corporation, though, the Australian High Court eventually held that a qualified privilege does exist for the publication of material pertaining to governmental and political matters that affect the representational governmental structure of Australia, provided only that the publisher acted "reasonably" (Weaver & Partlett 2004, p. 377).