Australian tort law reform and the culture of blame and claim

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.

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).

The concept of qualified privilege as a defence against claims of defamation, however, is a very slippery slope indeed, particularly with respect to political satire. According to Manning and Phiddian, "Cartoonists act in corporately-owned newspapers -- some of the most conservative organs of opinion formation -- within patterns of decorum that have built up over more than a century of editorial cartooning. That they so often test those limits is one of the many things that make them so interesting" (2004, p. 8). Certainly, political cartoons are frequently offensive, and in some cases in bad taste, but the ability to lampoon public officials is a hallmark of a free society.

To the extent that these observers are limited in their ability to express offensive opinions and observations is the extent to which freedom of speech is limited, of course, but things have changed since the terrorist attacks of September 11, 2001. In the global war on terrorism, the depiction of public figures using political satire has assumed some new qualities that may affect how these commentaries are viewed in the future. For instance, Manning and Phiddian also emphasize that, "In this time of increasingly coercive war against the amorphous concept of terror, attention to the function of cartoons in the ecology of political debate may shed some light on the nature of free speech. We are treating cartoonists as interesting in themselves, and as canaries sent down the mine shaft of public debate to discover how fresh the air is there, how safe for freedom of speech" (2004, p. 8).

With respect to Australian defamation law, political satire does not have any particular protections, creating another nebulous situation for publishers. In this regard, Handley and Davis note that, "Cartoonists and other satirists enjoy no more legal protection under the laws of libel and defamation than do any other sorts of writers. As the business of satire is to attack the character and impugn the motives of public figures, you would have thought that this would make satirists notable benefactors to defamation lawyers" (2001, p. 8).

Based on the formal definition of defamation law which describes such observations in the media as specifically being material that "tends to injure the personal, professional, trade or business reputation of an individual or a company, to expose them to ridicule or to cause people to avoid them," it is reasonable to suggest that political satirists are at a distinct disadvantage when it comes to running afoul of defamation laws. After all, poking fun at public officials and pointing out their foibles is their stock in trade. When the ability of political satirists to perform their jobs is adversely affected by defamation laws, the essence of a free society is likewise attenuated. According to Handley and Davis, "It is hard to imagine that cartoonists cause many people to be avoided, but injuring reputations and holding people up to ridicule are their core activities" (2001, p. 8).

Nevertheless, based on the analysis of two legal scholars with respect to the interlocutory injunction sought by Pauline Hanson and actually obtained that prevented the ABC presentation of the satirical song 'Back Door Man' by Simon Hunt, AKA Pauline Pantsdown: "There have been very few defamation cases on satire. This is not surprising. Most people when they are lampooned prefer not to give the satirist a further platform and further publicity by bringing proceedings. & #8230; in addition, most observers would instantly recognise satirical commentary as inherently in the nature of comment, and therefore easy to defend under defamation law" (Handley & Davis 2001, p. 8).

The only saving grace with respect to defamation laws as they apply to the media in general and political satirists in particular in promoting freedom of speech and expression is the gamble plaintiffs take when seeking to litigate defamation cases. For instance, according to Weaver and Parlett, though, "Australia's defamation rules do not function in isolation. The fact that the losing party in a defamation action is required to pay the opposing party's costs, which include legal fees, has a major impact on the media. In deciding what to publish, as well as in deciding what not to publish, the media is well aware of the costs rule which can have a deterrent effect on the media" (2004, p. 380).

In his book, the Third Man: Reform of the Australasian Defamation Defences, Gillooly reports that with respect to defamation cases, the law provides a cause of action to satisfy the respective interests of the public at large as well as individual plaintiffs in maintaining reputation. According to Gillooly, in all venues, the threshold for defamation cases requires only that the plaintiff generally prove that:

1. The defendant is legally responsible for the publication of certain material; and,

2. That material is defamatory of the plaintiff (p. 4).

With regards to the first element, the only stipulation is that the "certain material" has been communicated to at least one other person besides the plaintiff (i.e., "the third man"); however, the extent and scope of such communication will affect the amount of any remedies provided (Gillooly 2011). With regards to the second element, the case law (e.g.., Parmiter v. Coupland, 1840, 6 M & W. 105, 151 ER 340 at 108; Berkoff v. Burchill, 1996, 4 All ER 1008 at 1013 and others) stipulates that material can be considered to be defamatory of plaintiffs if it tends to damage their reputations or result in their social exclusion. The reaction of the "ordinary, reasonable person" rather than the plaintiff is the criterion by which the quality of the alleged defaming material is evaluated (Gillooly 2011).